Legislature(2015 - 2016)HOUSE FINANCE 519

04/06/2015 01:30 PM House FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved HB 135 Out of Committee
Heard & Held
Heard & Held
<Bill Hearing Rescheduled from 4/3/15>
+ Bills Previously Heard/Scheduled TELECONFERENCED
HOUSE BILL NO. 15                                                                                                             
     "An Act relating to credits toward a sentence of                                                                           
     imprisonment and to good time deductions."                                                                                 
REPRESENTATIVE TAMMIE WILSON,  SPONSOR, discussed the intent                                                                    
of  the bill.  She announced  that the  bill dealt  with the                                                                    
period   of  pre-trial;   before  possible   conviction  and                                                                    
sentencing. She  explained that  currently if  an individual                                                                    
served the  time awaiting  trial in  jail and  was convicted                                                                    
credit  was given  for time  served.  The legislation  would                                                                    
grant credit  for time  served under  electronic monitoring.                                                                    
She read the following from page  1, beginning on line 10 of                                                                    
the bill:                                                                                                                       
     …if  the person  has not  committed a  criminal offense                                                                    
     while  under   electronic  monitoring  and   the  court                                                                    
     imposes  substantial   restrictions  on   the  person's                                                                    
     freedom  of  movement  and  behavior  while  under  the                                                                    
     electronic monitoring program,  including requiring the                                                                    
     person to be confined to a residence…                                                                                      
Representative Wilson  specified that  the bill  changed the                                                                    
definition of  residence from strictly  a private home  to a                                                                    
halfway house,  residential treatment center, or  other type                                                                    
of residential rehabilitative housing.                                                                                          
Representative Wilson  continued to  read from page  1, line                                                                    
14 of the bill:                                                                                                                 
     …except for a                                                                                                              
     (1) court appearance;                                                                                                      
     (2) meeting with counsel; or                                                                                               
     (3) period  during which  the person  is at  a location                                                                    
     ordered by  the court  for the purposes  of employment,                                                                    
     attending  an   educational  or   vocational  training,                                                                    
     performing  community volunteer  work,  or attending  a                                                                    
     rehabilitative activity or medical appointment.                                                                            
Representative   Wilson   communicated  that   very   little                                                                    
opportunity  to receive  treatment existed  during the  pre-                                                                    
trial period and many individuals  lost their jobs or homes.                                                                    
She  elaborated that  the bill  had  no effect  on a  person                                                                    
qualified  for  electronic  monitoring.  Conversely,  HB  15                                                                    
would   not   change   the  prohibition   against   allowing                                                                    
electronic  monitoring for  sex  offenders.  She provided  a                                                                    
scenario regarding  how the bill  would work.  An individual                                                                    
charged with a crime would appear  in court and be placed on                                                                    
electronic  monitoring  and  other conditions  of  pre-trial                                                                    
release. If  subsequently convicted, and the  individual was                                                                    
compliant  during pre-trial  credit  would  be received  for                                                                    
time served.  She believed that the  scenario was preferable                                                                    
over  placing  the  individual  in  jail  pre-trial  without                                                                    
receiving rehabilitative treatment or services.                                                                                 
2:19:43 PM                                                                                                                    
Vice-Chair  Saddler wondered  whether one  day served  under                                                                    
electronic  monitoring was  worth one  day's credit  against                                                                    
incarceration.  Representative  Wilson  confirmed  that  the                                                                    
credit was a 1 to 1 ratio.                                                                                                      
Co-Chair Neuman asked  how a person who  was technically not                                                                    
guilty during the pre-trial time  but was subsequently found                                                                    
guilty  could  legally be  granted  the  time served  before                                                                    
Representative  Wilson  responded  that the  system  already                                                                    
gave credit  against time served  before sentencing.  When a                                                                    
person was charged  with a crime and was  jailed during pre-                                                                    
trial,  the individual  was collecting  time served  against                                                                    
sentencing  time.  She  shared  that  HB  15,  under  strict                                                                    
conditions  metered out  by judge,  would allow  counseling,                                                                    
employment, treatment, etc. during  the pre-trial time under                                                                    
electronic  monitoring   and  receive   credit  for   it  if                                                                    
sentenced.  She  opined  that doing  something  constructive                                                                    
like   counseling   or   employment  was   preferable   over                                                                    
languishing in jail  at much higher costs to  the state. She                                                                    
reiterated that  the bill  allowed for  pre-trial electronic                                                                    
monitoring under  very strict conditions and  that currently                                                                    
electronic monitoring was only permitted post sentencing.                                                                       
2:26:24 PM                                                                                                                    
Representative Gara commented that  the language in the bill                                                                    
mattered. He expressed concern over  the words "[while under                                                                    
electronic  monitoring and  the  court imposes]  substantial                                                                    
restrictions on the person's freedom."  He wondered what the                                                                    
definition of  "substantial restrictions" was.  He suggested                                                                    
that an individual  who acted exemplary in  carrying out his                                                                    
pre-trial  conditions under  electronic  monitoring but  was                                                                    
"just  short of  substantial restrictions"  could be  denied                                                                    
credit  for pre-trial  time served.  He wondered  what would                                                                    
happen    to   the    person   with    "almost   substantial                                                                    
restrictions." He wondered why  the language was included in                                                                    
the bill.                                                                                                                       
Representative  Wilson   clarified  that  the   court  would                                                                    
determine  the   substantial  restrictions  placed   on  the                                                                    
individual; therefore,  that the  person would  know exactly                                                                    
what conditions to comply with  during the pre-trial period.                                                                    
She informed the committee that  the Department of Law (DOL)                                                                    
suggested the substantial restriction language.                                                                                 
Representative Gara stated that it  was not "good enough for                                                                    
him"  that  the language  was  inserted  in the  legislation                                                                    
under the direction of DOL.  He believed that the department                                                                    
tended to be "harder" on  defendants than other agencies. He                                                                    
provided  an example  of a  person  living at  home with  an                                                                    
ankle   monitor  working   to  get   their  GED,   obtaining                                                                    
employment, and  abiding by other conditions  imposed by the                                                                    
court. He  did not  think that the  scenario would  meet the                                                                    
definition  of  substantial   restrictions.  He  wanted  the                                                                    
person under his scenario to  receive credit for time served                                                                    
while monitored.                                                                                                                
Representative Wilson understood that  a previous court case                                                                    
set precedent that mandated  substantial restrictions or the                                                                    
"equivalent of being in jail."                                                                                                  
Representative Gattis  agreed with Representative  Gara. She                                                                    
thought that "people  with bad behavior should  be given the                                                                    
opportunity  to  "rehabilitate;"  if the  person  reoffended                                                                    
then at  least the opportunity  was offered. She  saw people                                                                    
in  her district  who  had "made  a  mistake and  recognized                                                                    
their  mistake, but  could not  get  out of  the hole."  She                                                                    
claimed  that the  state was  not providing  the opportunity                                                                    
for  rehabilitation and  inmates were  merely "existing"  in                                                                    
prison at high financial costs  to the state. She wanted the                                                                    
system  to help  convicted  "citizens" work  their way  into                                                                    
becoming productive  members of society and  "move forward."                                                                    
She believed that  "sitting in jail was not  the answer" nor                                                                    
was  replicating   jail  because  the  current   system  was                                                                    
2:33:06 PM                                                                                                                    
Vice-Chair Saddler  asked about the meaning  of "substantial                                                                    
restrictions  on movement"  and asked  how the  language was                                                                    
interpreted.  He inquired  whether it  was confined  to what                                                                    
was listed as allowable in HB  15 or whether the court could                                                                    
impose  other  activities  or  restrictions.  Representative                                                                    
Wilson  answered that  the court  system  would decide  what                                                                    
restrictions  on movement  to impose  within the  provisions                                                                    
listed in the bill.                                                                                                             
Co-Chair  Neuman  observed  that  different  judges  imposed                                                                    
different sentences for  the same crime and "was  not a fair                                                                    
system."  He  wanted  a  clear  definition  of  "substantial                                                                    
restrictions."  He   suggested  that  the  bill   list  what                                                                    
substantial  restrictions were  as  opposed  to leaving  the                                                                    
definition open to interpretation.                                                                                              
Representative   Wilson  pointed   out  the   difficulty  in                                                                    
achieving  consensus  among  the Department  of  Corrections                                                                    
(DOC), public  defenders, district attorneys, and  the Court                                                                    
System when  crafting the legislation.  She shared  that the                                                                    
bill  was  a  compromise  between the  entities  within  the                                                                    
confines of the court  case precedent. She expressed concern                                                                    
over  the  public's  safety   and  thought  that  sufficient                                                                    
restrictions  were  needed  to  safeguard  the  public.  She                                                                    
agreed that having the definition  in writing would help but                                                                    
wanted  to wait  and see  how HB  15 would  play out  in the                                                                    
courts,   if   adopted.   She  surmised   that   substantial                                                                    
restrictions  would act  as a  deterrent for  the individual                                                                    
under electronic  monitoring while allowing  the opportunity                                                                    
for reform.                                                                                                                     
2:38:30 PM                                                                                                                    
Representative  Guttenberg  stated  his  concern  about  the                                                                    
definition   of  substantial   restrictions.  He   was  also                                                                    
concerned  about court  imposed restrictions  that were  not                                                                    
criminal  offenses  i.e.,  restricting drinking  or  smoking                                                                    
marijuana, and wondered how the  bill was dealing with those                                                                    
Representative  Wilson referred  to lines  11 through  12 on                                                                    
page 1 and interpreted the  language to mean that during the                                                                    
period  of electronic  monitoring  a person  may not  commit                                                                    
another crime and receive credit  for time served. She cited                                                                    
that the  definition of substantial restrictions  was listed                                                                    
on  page  2  and  that the  court  would  impose  definitive                                                                    
restrictions around  where and when the  person was expected                                                                    
to be at all times.                                                                                                             
Representative  Gara understood  the bill  to read  that the                                                                    
allowances   listed   on   page  two:   court   appearances,                                                                    
employment, rehabilitative  activity, etc.,  were exceptions                                                                    
to court restrictions.                                                                                                          
2:43:26 PM                                                                                                                    
Representative  Gara  interpreted  the legislation  to  mean                                                                    
that  the  items  listed  on   page  2  were  exempted  from                                                                    
substantial   restrictions  and   wanted   to  clarify   the                                                                    
interpretation for the committee.                                                                                               
Representative  Wilson  responded  that she  understood  the                                                                    
bill to read that unless the  monitored person was at one of                                                                    
the locations  listed in the  bill they would  be restricted                                                                    
to their place of residence.                                                                                                    
Representative Gara opined that  it was "mind boggling" that                                                                    
someone who committed  a minor crime would  be denied credit                                                                    
for time  served if they  were not placed  under substantial                                                                    
restriction  than  a person  who  committed  a more  serious                                                                    
crime  and remained  in jail  during  pretrial and  received                                                                    
credit for  time served.  He added that  he was  certain the                                                                    
list on page two contained exemptions and not restrictions.                                                                     
Representative  Wilson agreed  that  the term  "substantial"                                                                    
made the  bill "more difficult to  understand." She restated                                                                    
that the  term was necessary due  to a court case  the state                                                                    
lost  that  determined  that  in  order  to  allow  pretrial                                                                    
monitoring the  restrictions had  to be equivalent  to being                                                                    
in jail. The  bill attempted to define  what that equivalent                                                                    
Vice-Chair  Saddler requested  to hear  from DOL  or DOC  to                                                                    
answer the  question whether electronic monitoring  was more                                                                    
restrictive than  confinement in jail  presentencing whether                                                                    
it was  known how many  people were eligible  for monitoring                                                                    
and took advantage of the opportunity.                                                                                          
REMOND   HENDERSON,  DEPUTY   COMMISSIONER,  DEPARTMENT   OF                                                                    
CORRECTIONS,  reported that  457 people  were on  electronic                                                                    
monitoring  post-sentencing and  that currently  1875 people                                                                    
were in  pre-trial status. He did  not know how many  of the                                                                    
pre-trial  individuals  would  be  eligible  for  electronic                                                                    
monitoring. He  detailed that the  department's goal  was to                                                                    
move   more  post-trial   convicts   onto  monitoring   when                                                                    
Representative   Wilson  interjected   that   most  of   the                                                                    
monitoring was performed by private entities.                                                                                   
Vice-Chair  Saddler asked  how  many people  post-conviction                                                                    
were  eligible  for  electronic  monitoring  and  accept  it                                                                    
versus those that choose  incarceration. He wondered whether                                                                    
convicts viewed electronic monitoring  as an easier sentence                                                                    
than confinement.                                                                                                               
2:49:48 PM                                                                                                                    
CARRIE BELDEN,  DIRECTOR, DIVISION OF PAROLE  AND PROBATION,                                                                    
DEPARTMENT  OF  CORRECTIONS (via  teleconference),  declared                                                                    
that  she could  not answer  the question  because it  was a                                                                    
matter of  the convict's personal preference  and capability                                                                    
to accept electronic monitoring.                                                                                                
Representative Wilson indicated that  it was not possible to                                                                    
compare  post-trial to  pre-trial. She  explained that  if a                                                                    
person  in jail  during pre-trial  was convicted  the credit                                                                    
they received for time served  was called "good time" versus                                                                    
a person  choosing electronic  monitoring who  would receive                                                                    
day  for day  credit. Presently,  more incentive  existed to                                                                    
remain  in  jail   post-conviction  than  choose  electronic                                                                    
monitoring.  She  stated that  her  bill  was attempting  to                                                                    
"even out" the incongruity.                                                                                                     
Representative Gara  asked whether  the bill was  limited to                                                                    
individuals  prior  to  conviction and  sentencing  or  also                                                                    
applied to offenders post-sentencing.                                                                                           
KACI  SCHROEDER,  LEGISLATIVE  LIAISON, DEPARTMENT  OF  LAW,                                                                    
responded   that  the   legislation  applied   to  pre-trial                                                                    
Representative Gara  asked whether  Section 1 and  Section 2                                                                    
of HB 15 only applied  to pretrial sentencing. Ms. Schroeder                                                                    
responded in  the affirmative. She  added that  a post-trial                                                                    
offender was  under the jurisdiction of  DOC. The department                                                                    
decided   on  convicts   placements,  which   could  include                                                                    
electronic monitoring with restrictions.                                                                                        
2:54:22 PM                                                                                                                    
Representative   Gara   described   a  scenario   where   an                                                                    
individual  was sentenced  pre-trial with  an ankle  monitor                                                                    
and conditions  that fell short of  substantial restrictions                                                                    
on  freedom of  movement. He  questioned why  the individual                                                                    
would not receive credit for time served.                                                                                       
Ms.  Schroeder  indicated  that the  language,  "substantial                                                                    
restrictions  on  the  person's   freedom  of  movement  and                                                                    
behavior"  was  derived directly  from  case  law. Case  law                                                                    
defined criteria  "like incarceration"  and the  judge would                                                                    
be  familiar  with  the criteria.  She  cited  AS.12.55.027,                                                                    
which  was  not  included  in  the  bill  that  referred  to                                                                    
residential  treatment   and  delineated   the  restrictions                                                                    
necessary to qualify for jail credit.                                                                                           
Representative  Gara  asked  whether including  or  removing                                                                    
"substantial"  was  a  policy   call  for  the  legislature.                                                                    
Representative   Wilson  understood   that  if   substantial                                                                    
restrictions  was removed  the  law would  be challenged  in                                                                    
court.  She  reiterated that  the  bill  was shaped  through                                                                    
compromise between  the four  entities. She  emphasized that                                                                    
"substantial restrictions"  was a big issue  in drafting the                                                                    
HB  15.  She wanted  the  legislation  to be  effective  and                                                                    
Representative  Gara  directed  the   question  to  DOL  and                                                                    
wondered  whether  removing substantial  restrictions  would                                                                    
render the policy invalid.                                                                                                      
Ms.  Schroeder  explained  that pre-trial  jail  credit  was                                                                    
"very well  fleshed out in the  court system." Additionally,                                                                    
many cases  support disallowance  of time served  under pre-                                                                    
trail   electronic  monitoring.   However,   the  bill   was                                                                    
countering   the  precedent   by  stating   that  electronic                                                                    
monitoring  could  be  the  equivalent  to  jail  under  the                                                                    
conditions  specified in  the bill.  The language  in HB  15                                                                    
reflected  a   policy  shift  and  nothing   prohibited  the                                                                    
legislature   from  making   another   policy  call,   which                                                                    
eventually would be considered in the courts.                                                                                   
Co-Chair Thompson invited Nancy  Meade to testify clarifying                                                                    
the judge's role in pre-trial sentencing.                                                                                       
2:58:52 PM                                                                                                                    
NANCY   MEADE,  GENERAL   COUNSEL,   ALASKA  COURT   SYSTEM,                                                                    
explained  that  judges  refrain  from  ordering  electronic                                                                    
monitoring "per se."  Pre-trial defendants received specific                                                                    
bail  conditions;  one  condition  required  a  third  party                                                                    
custodian.   Therefore,  some   defendants  cannot   find  a                                                                    
suitable  custodial  guardian. Subsequently,  the  defendant                                                                    
can hire a company  that provided custodial guardianship via                                                                    
an  ankle  monitor.  She  voiced  that  the  defendant  must                                                                    
convince  the judge  the method  was  appropriate under  the                                                                    
bail  conditions   and  the   company  must   establish  its                                                                    
capability  of responsible  guardianship. She  reported that                                                                    
DOC  was  not involved  in  pre-trial  monitoring. Upon  the                                                                    
judge's  approval,  an   order  specifying  the  defendant's                                                                    
monitoring  conditions was  written  by the  judge, who  was                                                                    
placed  on notice  by the  defendant that  he would  request                                                                    
credit for time served under monitoring when sentenced.                                                                         
Representative Gara  asked whether  substantial restrictions                                                                    
must be imposed in order  to receive credit for time served.                                                                    
Ms. Meade thought that  the substantial restriction language                                                                    
was  included specifically  for  receiving  credit for  time                                                                    
spent  in  residential  treatment.   She  related  that  the                                                                    
court's position  was that the legislature  could create any                                                                    
policy it  wanted in  regards to  pre-trial time  served and                                                                    
electronic monitoring and the court would apply it.                                                                             
3:03:17 PM                                                                                                                    
Representative  Gara thought  that a  defendant who  did not                                                                    
have a drug and alcohol  problem and was placed on pre-trial                                                                    
electronic  monitoring but  was not  subject to  substantial                                                                    
restrictions on  his freedom of movement  should gain credit                                                                    
for time served. He asked for Ms. Meade's thoughts.                                                                             
Ms. Meade responded that bill  did exclude the person in the                                                                    
described scenario  and reiterated that the  committee could                                                                    
include any  type of  policy call it  desired in  regards to                                                                    
the issue and the court would apply the law.                                                                                    
Vice-Chair Saddler  asked what  percentage of  people placed                                                                    
on  electronic monitoring  complied  with the  restrictions.                                                                    
Ms. Meade replied that she  did not have the exact statistic                                                                    
but  compliance was  "quite high."  She elaborated  that the                                                                    
defendant was paying a high  fee for the monitoring service.                                                                    
The electronic monitoring companies  acted swiftly to file a                                                                    
petition when  a defendant transgressed and  were trusted by                                                                    
the courts.                                                                                                                     
Representative Wilson maintained that  the bill was a change                                                                    
in policy  and reminded the committee  that Alaska's prisons                                                                    
were   at  "101   percent"  capacity   and  she   hoped  the                                                                    
legislation was  a first step  to stop the  "revolving door"                                                                    
of incarceration.                                                                                                               
HB  15  was   HEARD  and  HELD  in   committee  for  further                                                                    

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