ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
February 14, 2019
3:32 p.m.
MEMBERS PRESENT
Senator Peter Micciche, Acting Chair
Senator Lora Reinbold
Senator Scott Kawasaki
MEMBERS ABSENT
Senator Mike Shower, Chair
Senator John Coghill, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 34
"An Act relating to probation; relating to a program allowing
probationers to earn credits for complying with the conditions
of probation; relating to early termination of probation;
relating to parole; relating to a program allowing parolees to
earn credits for complying with the conditions of parole;
relating to early termination of parole; relating to eligibility
for discretionary parole; relating to good time; and providing
for an effective date."
- HEARD & HELD
SENATE BILL NO. 33
"An Act relating to pretrial release; relating to sentencing;
relating to treatment program credit toward service of a
sentence of imprisonment; relating to electronic monitoring;
amending Rules 38.2 and 45(d), Alaska Rules of Criminal
Procedure; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 34
SHORT TITLE: PROBATION; PAROLE; SENTENCES; CREDITS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/23/19 (S) READ THE FIRST TIME - REFERRALS
01/23/19 (S) STA, FIN
02/07/19 (S) STA AT 3:30 PM BUTROVICH 205
02/07/19 (S) Heard & Held
02/07/19 (S) MINUTE(STA)
02/11/19 (S) JUD REFERRAL ADDED AFTER STA
02/12/19 (S) STA AT 3:30 PM BUTROVICH 205
02/12/19 (S) Heard & Held
02/12/19 (S) MINUTE(STA)
02/14/19 (S) STA AT 3:30 PM BUTROVICH 205
BILL: SB 33
SHORT TITLE: ARREST;RELEASE;SENTENCING;PROBATION
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/23/19 (S) READ THE FIRST TIME - REFERRALS
01/23/19 (S) STA, JUD, FIN
02/07/19 (S) STA AT 3:30 PM BUTROVICH 205
02/07/19 (S) Heard & Held
02/07/19 (S) MINUTE(STA)
02/14/19 (S) STA AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
CHRIS EICHENLAUB, representing self
Eagle River, Alaska
POSITION STATEMENT: Testified in support of SB 34.
TERRIA VANDENHUERK, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 34.
MICHAEL MOORADIAN, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified that he is generally in favor of
SB 34 with a few caveats.
KARA NELSON, representing self
Juneau, Alaska
POSITION STATEMENT: Testified in strong opposition to SB 34.
ROGER BRANSON, representing self
Juneau, Alaska
POSITION STATEMENT: Testified that SB 34 creates tools to beat
up on people.
JOHN SKIDMORE, Director
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Delivered an overview of SB 33.
ACTION NARRATIVE
3:32:04 PM
ACTING CHAIR PETER MICCICHE called the Senate State Affairs
Standing Committee meeting to order at 3:32 p.m. Present at the
call to order were Senators Kawasaki, Reinbold, and Acting Chair
Micciche.
SB 34-PROBATION; PAROLE; SENTENCES; CREDITS
3:33:04 PM
ACTING CHAIR MICCICHE announced the first order of business
would be SENATE BILL NO. 34 "An Act relating to probation;
relating to a program allowing probationers to earn credits for
complying with the conditions of probation; relating to early
termination of probation; relating to parole; relating to a
program allowing parolees to earn credits for complying with the
conditions of parole; relating to early termination of parole;
relating to eligibility for discretionary parole; relating to
good time; and providing for an effective date."
He opened public testimony on SB 34.
3:33:47 PM
CHRIS EICHENLAUB, representing self, Eagle River, stated that he
was generally supportive of any laws that get rid of Senate Bill
91. His three concerns are perverts, thieves, and drug addicts.
They cause the majority of the problems in our communities and
should be dealt with severely, he said. He reiterated support
for measures that get rid of Senate Bill 91 and noted that he
was pleased with the proposed chair of the probation board.
ACTING CHAIR MICCICHE asked if supports SB 34.
MR. EICHENLAUB replied, "I am in support of SB 34."
3:37:17 PM
TERRIA VANDENHUERK, representing self, Anchorage, testified
that, for a few reasons, she does not support SB 34. She related
that while she was incarcerated for an unclassified felony she
received treatment, and when she applied for discretionary
parole it was granted. During the six years she was on
discretionary parole, she did not commit one violation. In
April, she will celebrate 14 years drug free. She said she
opposes eliminating the opportunity for all prisoners to apply
for discretionary parole and returning to the previous approach
for sanctioning technical violations. She spoke about the
ministry she founded that helps former gang members transition
back to their communities and the difficulty she faced when a
probation officer tried to have her arrested for violating the
condition of no felon-to-felon contact while she was working in
the ministry. She opined that peer support specialists with
"lived experience" should be partnering with the probation
office to help these people get their lives on track.
ACTING CHAIR MICCICHE congratulated her on 14 years of success.
SENATOR REINBOLD asked the term of her sentence for the
unclassified felony and how many years she served before she was
released on discretionary parole.
MS. VANDENHUERK replied she was sentenced for an unclassified
drug conviction to 20 years with 8 years suspended. She served 5
of those 12 years, which was the mandatory minimum. During her
time in prison, she availed herself of every opportunity for
rehabilitation. The first time she applied for parole it was
granted. Her son advocated for her release because he could tell
that she had "turned her life around." Reuniting with family is
a great benefit and the children of former inmates benefit as
well, she said.
SENATOR REINBOLD offered her understanding that discretionary
parole is available after serving one-quarter of the sentence.
VANDENHUERK responded that the requirements are different for
other felonies but her mandatory minimum for a 20-year sentence
was 5 years.
3:42:56 PM
MICHAEL MOORADIAN, representing self, Anchorage, said he was in
long-term recovery and that was possible through Wellness Court.
He generally favors SB 34 with a few caveats. He opined that it
would be helpful to have a better definition of "technical
violation" because someone may commit one without any knowledge
of having done so. For example, someone may come out of an
Alcoholics Anonymous (AA) meeting and talk with someone who was
also at the meeting and it's a technical violation because both
are convicted felons. He said he does not support mandated time
limits on early termination of probation and parole, but he
believes there should be a process for those on probation and
parole to petition for early release without it resting entirely
on the probation officer (PO) to be the advocate. He shared that
he works in the recovery field and has found that some POs do
not believe that treatment works. Also regarding parole
eligibility, he said he generally agrees with the
recommendations in SB 34 but people with class B and C felonies
for possession [of a controlled substance] should be eligible.
People in possession who are addicts have a medical issue and
are unlikely to get the services they need while incarcerated.
He reiterated support for SB 34 with some adjustments in
terminology and definitions.
3:46:23 PM
KARA NELSON, representing self, Juneau, testified in strong
opposition to SB 34. She shared that she is the former director
of Haven House Juneau, a faith-based recovery facility for women
returning to the community after incarceration. Because she was
formerly incarcerated, she has a unique perspective of probation
and parole. Based on her personal experience, she believes that
probation and parole is one of the most important, yet often
neglected, pieces of reforming the legal system. She has seen
and advocated [to change] many of the inconsistencies of
supervised probation. Working with POs, she was able to be part
of the transformation that occurred when Senate Bill 91 became
law. She also witnessed some gross misuse of power. She shared
her personal experience while on supervised probation and opined
that POs generally support having options when they consider
technical violations. Prior to passing Senate Bill 91, it wasn't
clear how long she would remain in prison for a technical
violation. She agreed with prior testimony that some POs do not
support a parolee working with a peer in the recovery field if
the peer is also a convicted felon. She noted that some POs had
a change of attitude about sanctions once they had more tools.
She pointed out that the term "technical violation" covers a
vast array of behaviors. She reiterated opposition to SB 34 and
stated that we were getting somewhere with the existing
sanctions instead of someone's life being in the hands of a
probation officer who has no tools.
ACTING CHAIR MICCICHE suggested she submit a detailed document
on her concerns to senate.state.affairs@akleg.gov.
3:52:25 PM
ROGER BRANSON, representing self, Juneau, said he would like to
speak to the topic of "the voice not here." He said the voice of
Dan Saddler from his district is missing but he is represented.
The voice of Ron Gillam from the Kenai Peninsula is missing, but
he and his concerns are well represented here. He asked Senator
Kawasaki if he would represent the voice of Kelsey Green. Her
voice is missing and she is not well represented today. He
thanked the committee for its time.
ACTING CHAIR MICCICHE asked if he had any comments on SB 34.
MR. BRANSOM replied the committee will do good work on SB 34
with all the voices represented. He added that he finds the bill
problematic with the way it is written. "Specifically, we seem
to be creating these tools to beat each other up with and I
can't see that as being good at the end of the day." He said you
speak of community condemnation and that can easily turn into a
witch hunt.
3:54:58 PM
ACTING CHAIR MICCICHE stated that public testimony would remain
open on SB 34 and he would hold the bill in committee.
He encouraged the public to submit written testimony to
senate.state.affairs@akleg.gov.
SB 33-ARREST;RELEASE;SENTENCING;PROBATION
3:55:30 PM
ACTING CHAIR MICCICHE announced that the final order of business
would be SENATE BILL NO. 33; "An Act relating to pretrial
release; relating to sentencing; relating to treatment program
credit toward service of a sentence of imprisonment; relating to
electronic monitoring; amending Rules 38.2 and 45(d), Alaska
Rules of Criminal Procedure; and providing for an effective
date."
He asked Mr. Skidmore to give a broad overview of the bill.
3:56:04 PM
JOHN SKIDMORE, Director, Criminal Division, Department of Law,
Anchorage, said SB 33 looks at the pretrial issues of bail and
release pending trial. He related that over the last 18 months
it has become clear that the reforms [initiated by Senate Bill
91] have created problems. Some of those were addressed last
year in House Bill 312, but the problems continue. What SB 33
seeks to do is return the law to what it was prior to the
criminal justice reform regarding how bail is addressed. The two
areas to pay attention to are 1) how it changes our laws in
determining what bail is appropriate and what conditions of
release are appropriate, and 2) how we monitor the individuals
released in pretrial.
MR. SKIDMORE explained that the Pretrial Enforcement Division
(PED) created by Senate Bill 91 added about 60 new positions
within DOC and was designed to provide the court with a risk
assessment analysis for each offender that came before the
court. More importantly, it intended to provide supervision of
individuals released pretrial. SB 33 maintains the supervision
portion, but it transfers the authority from PED to probation
and parole officers. This efficiency allows DOC to better manage
its resources for probation, parole, and pretrial supervision
and rids the department of the unnecessary administrative costs
created by the PED. The idea of providing courts with an
expanded number of options when considering what to do when
releasing an inmate is maintained. Releasing a person on their
own recognizance (OR) is still the preferred option under SB 33.
Additional options that would be available include the expanded
use of third-party custodians, electronic monitoring (EM) by a
private company, and release with DOC monitoring.
He summarized that the determinations of when an inmate should
be released and under what conditions are the primary changes
made in SB 33. It returns the law to what it was previously.
Release is no longer tied to the flawed risk-assessment tool.
Leaving a judge's determination attached to a flawed tool
creates serious problems, he said.
4:00:50 PM
SENATOR REINBOLD questioned the wisdom of retaining the release
of a prisoner on their own recognizance (OR) as the preferred
option. "Maybe the criminal would like that but I'm not sure the
victims would think that's the best option. I find it
outlandish, personally," she said.
MR. SKIDMORE clarified that his comment was based on the
constitution that says everyone is entitled to reasonable bail.
The statutes prior to Senate Bill 91, under Senate Bill 91, and
under SB 33 all indicate that release on OR is what should occur
unless the court determines that doing so cannot assure the
safety of the community or the appearance of the individual.
It's that part that allows the court to place conditions on
somebody so they are held in custody, he said. SB 33 returns the
presumptions to what it was prior to Senate Bill 91.
SENATOR REINBOLD pointed out there are also constitutional
requirements regarding protection of victims' rights and public
safety. She maintained that the vast majority of Alaskans agree
with her that there are not enough protections for the victim
and that a lot of these people are released again and again not
only because of the pretrial risk assessment tool but also
because of the use of OR. She emphasized that public safety is
paramount, and the system is failing Alaskans. She committed to
look further into release on OR.
ACTING CHAIR MICCICHE asked Mr. Skidmore to clarify that SB 33
repeals the bail provisions under Senate Bill 91 and returns the
law to what it was before that bill passed and that it repeals
the pretrial enforcement and the risk assessment tool.
MR. SKIDMORE confirmed that SB 33 repeals what was in Senate
Bill 91 regarding bail and, with one exception, returns it to
what it was previously. The exception is that the presumption
that no bail condition would be appropriate in certain cases was
found unconstitutional in Williams v. State. SB 33 replaces that
presumption with one that says individuals that commit certain
types of offenses should be presumed dangerous and the court
needs to set appropriate conditions.
ACTING CHAIR MICCICHE asked if SB 33 repeals the pretrial
release risk assessment tool.
MR. SKIDMORE confirmed that SB 33 repeals and replaces AS
12.30.011 that tied the courts' determinations of release to the
risk assessment tool so that tool will no longer be relied on.
ACTING CHAIR MICCICHE expressed concern about reinstating the
third-party custodian system, because it seems to be laced with
opportunity for further offences. He asked if there was any
research that supports its return.
4:06:21 PM
MR. SKIDMORE replied there is no research or data, but his
experience is that it depends on the court's ability to assess
the individual, after the prosecutor and defense attorney pose
questions, and make a judgement call about whether or not the
person will be a good third-party. While there is no guarantee
of success, the purpose behind SB 33 is to provide judges as
many options as possible to determine how and whether they can
release an individual while still maintaining community safety
and ensuring the person shows up for court.
4:08:34 PM
ACTING CHAIR MICCICHE said that at another time he'd like a
detailed discussion about how a third-party candidate is
evaluated as appropriate to manage the release of an offender or
alleged offender, because he has stories that are disturbing.
They include individuals trolling for young females to be
released to their care and supporting the young females'
substance abuse while in the person's care.
4:09:30 PM
SENATOR REINBOLD highlighted victims' rights and the public's
right to protection under Article I Sections 12 and 24 of the
constitution. She asked for assurance that there will be balance
and that victims and the public will not be forgotten.
4:11:16 PM
SENATOR KAWASAKI, noting that inability to pay was removed,
asked if there was data showing that provision was problematic.
MR. SKIDMORE clarified that the inability to post bail is only
removed as a basis for a second bail hearing. He directed
attention to Section 7 on page 6 of the bill. It lists the
factors the court is supposed to consider at the initial bail
hearing, such as the person's employment status and history and
the assets available to meet the monetary conditions of release.
Under current law, if a person has not posted bail within 48
hours, the court is required to hold a second bail hearing and
consider inability to pay a second time and potentially lower
the bail just to allow the person to get out of jail. He
reiterated that it's not that the inability to pay is not
considered; it's that it should not form the basis for a second
analysis.
4:13:36 PM
SENATOR KAWASAKI questioned whether being in jail for more than
a couple of days and possibly losing one's job wouldn't impact
the ability to pay.
MR. SKIDMORE agreed that the impacts of being in jail can be
significant, but bail is not set to keep people from getting
out. The constitution says excessive bail shall not be required
but a reasonable bail is appropriate. He agreed with Senator
Reinbold that when the court sets bail it is a balancing act to
consider all 11 factors. The person is considered innocent until
proven guilty, but the court must also consider the appropriate
measures to protect the community and ensure the person will
appear for court. Monetary bail is one of the tools for the
judge to ensure those things are accomplished. To Senator
Reinbold's point, he said an Alaska Supreme Court case from 1966
said the right to not have unreasonable bail is not a right to
release on own recognizance. He said, "I have not stated that
somebody has a right to be released on their own recognizance;
I've only stated that there is a right to reasonable bail and
that OR is the starting point for that analysis." There are
multiple ways to go about securing release and bail should not
be reduced just because somebody can't pay, he said.
SENATOR REINBOLD said the right to a speedy trial is not working
for the victim or defendant and she wants to discuss how to
change that.
MR. SKIDMORE said the provisions that try to address the speed
of getting a case to trial include limiting credit for somebody
receiving treatment pretrial to 6 months and eliminating credit
when a person is released pretrial on electronic monitoring.
These provisions are designed to avoid situations that lead to
cases being delayed. He acknowledged that those two provisions
would not solve the problem entirely. He said this will take
continuing work and he looks forward to working with the
legislature to seek solutions.
4:20:08 PM
SENATOR REINBOLD offered her understanding that there are about
40,000 arrests in the state a year and 40 officers watch those
on pretrial release. She asked how that benefits the people of
Alaska and assures public safety.
MR. SKIDMORE pointed out that SB 33 is designed to give the
courts multiple options, not just pretrial. Having just 40
officers monitor all the people that are released is not
feasible, but it's more realistic when there are multiple
options. He deferred to the DOC for specifics on how pretrial
officers do their jobs.
4:22:26 PM
ACTING CHAIR MICCICHE listed the individuals available to answer
questions.
MR. SKIDMORE said the foregoing were the highlights of SB 33.
ACTING CHAIR MICCICHE asked him to address video conferencing
and the arraignment question.
MR. SKIDMORE said SB 33 returns the arraignments to 48 hours,
but he believes that the Court System will try to have
individuals arraigned within 24 hours of arrest. The 48 hours
provides more flexibility to manage certain cases and resources
on weekends and holidays. The second aspect is trying to
increase the use of video teleconferencing. It is currently used
in courtrooms across the state for arraignments and bail
hearings and is recognized as something that has potential and
great benefit. He noted that discussions about this provision
are ongoing between the Department of Law and the Court System
on how to best achieve the goals and desires of DOL as well as
balancing concerns of the Court System.
ACTING CHAIR MICCICHE asked what has changed regarding video
teleconferencing other than the suggestion to increase its use.
MR. SKIDMORE replied there are two aspects. The first is in the
legislative intent in Section 1 that encourages greater use of
video teleconferencing. The second (in the latter sections of
the bill) is trying to adjust the Court Rules in terms of where
video teleconferencing is authorized.
4:25:27 PM
SENATOR KAWASAKI commented that changing arraignments from 24
hours to 48 hours seems to be going in the wrong direction. He
asked if a lot of arraignments aren't already done by video
teleconferencing.
MR. SKIDMORE replied the criminal rule currently requires
arraignments to be done by video teleconferencing when it is
available so the majority are done that way. He said he believes
that some areas of the state still transport prisoners when
video teleconferencing is available, despite the rule, by
relying on the term "shall." With regard to the question about
48 hours for arraignments going in the wrong direction, he said
it's not about trying to delay an arraignment. It is to provide
flexibility in particularly complex cases and for cases that
come in on weekends and holidays. He noted that most states use
the 48 hour standard or longer for arraignments
4:29:19 PM
ACTING CHAIR MICCICHE noted that the requirement for video
conferencing existed under Court Rule and the only change in SB
33 is to change from television to contemporaneous two-way video
conference. Observing that video conferencing didn't seem to be
the default, he asked if stronger language such as "whenever
possible" instead of "whenever convenient" would lead to cost
savings.
MR. SKIDMORE responded that the preferred description is a two-
way video teleconference which is more inclusive of various
technologies. The bill also expands the use of video
teleconferencing for other trial court hearings such as pretrial
conferences where each case is discussed for two or three
minutes. The way the Court Rules are currently written allows a
defendant to say they want to be transported to their court
hearing. The bill says the court gets to determine if a person
should be transported or if a video teleconference is
appropriate for those types of hearings. He shared that part of
the current discussions with the Court System involve the
logistics of that and whether there are certain hearings, such
as an evidentiary hearing, that a person should appear in
person. He summarized that the overall intent is to expand the
number of video conference hearings and make it the judge who
makes that decision as opposed to the defendant.
4:32:03 PM
SENATOR REINBOLD said she believes video conferencing will save
money and she agrees with Senator Kawasaki regarding 24 hours
for an arraignment hearing. She also gave a shout out and thank
you to prosecutors who work long, hard hours.
4:33:31 PM
ACTING CHAIR MICCICHE stated he would hold SB 33 in committee.
4:34:15 PM
There being no further business to come before the committee,
Acting Chair Micciche adjourned the Senate State Affairs
Standing Committee meeting at 4:34 pm.