Legislature(2015 - 2016)CAPITOL 120

02/20/2015 01:00 PM House JUDICIARY

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            HB  15-CREDITS FOR TIME SERVED/GOOD TIME                                                                        
1:54:51 PM                                                                                                                    
CHAIR LEDOUX announced that the next order of business would be                                                                 
HOUSE BILL NO. 15, "An Act  relating to credits toward a sentence                                                               
of imprisonment and to good time deductions."                                                                                   
1:56:12 PM                                                                                                                    
REPRESENTATIVE KELLER  moved to  adopt committee  substitute (CS)                                                               
for HB  15, Version 29-LS0102\N,  Gardner/Martin, 2/19/15  as the                                                               
working  document.   There  being  no  objection, Version  N  was                                                               
before the committee.                                                                                                           
1:56:23 PM                                                                                                                    
REPRESENTATIVE TAMMIE WILSON paraphrased the following sponsor                                                                  
statement [original punctuation provided]:                                                                                      
     The state  of Alaska faces rising  incarceration costs,                                                                    
     growing   correctional   populations,   and   declining                                                                    
     financial  resources. To  face  this challenge,  Alaska                                                                    
     must  seek  out   alternatives  which  maximizes  state                                                                    
     financial  resources   while  providing  rehabilitative                                                                    
     services  for  incarcerated   individuals.  It  is  the                                                                    
     purpose of HB 15 to  grant credit against a sentence of                                                                    
     imprisonment and  award good  time deductions  for time                                                                    
     spent in  a treatment program, in  a private residence,                                                                    
     or under electronic monitoring.                                                                                            
     It is  the mission of Alaska  Department of Corrections                                                                    
     (DOC)  to   provide  secure   confinement,  reformative                                                                    
     programs,   and  provide   a   process  of   supervised                                                                    
     community reintegration  to enhance  the safety  of our                                                                    
     communities.  Under   current  statutes,   a  convicted                                                                    
     prisoner  is entitled  to a  deduction of  one-third of                                                                    
     the term of imprisonment  under good time deductions if                                                                    
     the  prisoner follows  the  rules  of the  correctional                                                                    
     facility in  which the  prisoner is  confined. However,                                                                    
     if a  prisoner spends any  time in a  treatment program                                                                    
     or   while  under   electronic   monitoring  they   are                                                                    
     ineligible.  The  penalization for  seeking  treatment,                                                                    
     maintaining  employment,  or  starting the  process  of                                                                    
     reintegration  into  the   community  stands  in  stark                                                                    
     contrast to the goals outlined by DOC.                                                                                     
     A diverse range of  programs are available to prisoners                                                                    
     to    facilitate    an   individual's    reintegration.                                                                    
     Electronic Monitoring  (EM) is  a tool utilized  by DOC                                                                    
     that provides  cost effective supervision  of offenders                                                                    
     while  reducing  recidivism.   The  EM  program  allows                                                                    
     qualified  incarcerated individuals  to  serve time  at                                                                    
     home   while  adhering   to  the   program  conditions.                                                                    
     Qualified  individuals can  gain  access to  community-                                                                    
     based  treatment, maintain  employment, access  diverse                                                                    
     medical treatment, perform  community service work, and                                                                    
     begin  the process  of  reintegration.  The ability  to                                                                    
     grant  credit against  a sentence  of imprisonment  for                                                                    
     time spent  under supervision of  electronic monitoring                                                                    
     or within a treatment  program can potentially save the                                                                    
     state  of Alaska  over twelve  million dollars  a year.                                                                    
     The   State   of   Alaska   has   an   opportunity   to                                                                    
     substantially  save  money  while  increasing  Alaskans                                                                    
     access  to   community-based  treatments,   ability  to                                                                    
     maintain  employment,  and  reduce  recidivism.  HB  15                                                                    
     promotes the mission  of DOC by encouraging  the use of                                                                    
     reformative  programs while  fostering community  based                                                                    
     Thank you for your support of HB 15.                                                                                       
1:58:56 PM                                                                                                                    
REPRESENTATIVE  WILSON  offered  an  Electronic  Monitoring  (EM)                                                               
power  point presentation  and  advised that  the  bill does  not                                                               
change eligibility.   Requirements of eligibility  are based upon                                                               
the  Department  of  Corrections (DOC)  recommendations  and  the                                                               
court in determining the type  of monitoring an individual should                                                               
have, she  expressed.  Currently,  the seven requirements  by DOC                                                               
are as follows:  1. Release date is less than  three years. 2. No                                                               
current or prior  sex offense related convictions.  3. No current                                                               
domestic violence related  convictions. 4. Reside in  and work in                                                               
the Anchorage, Fairbanks, Girdwood,  Kenai, Ketchikan, Mat-Su, or                                                               
Sitka  areas. 5.  Land-line  phone with  basic  service and  long                                                               
distance carrier.   6. Must  be able  to provide a  "clean" urine                                                               
sample  (no  prescription  narcotics  or  street  drugs.)  7.  No                                                               
weapons,  alcohol, or  controlled substances  in the  home.   She                                                               
stated she is  hopeful the program will grow to  cover more areas                                                               
than the above mentioned areas.                                                                                                 
1:59:51 PM                                                                                                                    
REPRESENTATIVE WILSON explained that  within the EM 24/7 program,                                                               
should an individual  take a drink of alcohol,  the monitor picks                                                               
it  up and  data is  downloaded  at the  end  of the  week.   The                                                               
approximate monitor cost is $105  for seven days versus over $150                                                               
per day.   DOC has an EM program and  there are private companies                                                               
with  monitors,  she  remarked.     In  FY14  a  total  of  2,034                                                               
individuals   participated   in   DOC's  EM   program   and   the                                                               
participants  served  a total  of  134,585  days, which  averages                                                               
about 66 days  per year.  Although, if good  time deductions were                                                               
provided with  the 2014 participants,  it would have  reduced the                                                               
days by 44,862.  She described  good time as not only a mechanism                                                               
to show behavior change when  incarceration, but actually "a step                                                               
down."   She related that  parole is  to help individuals  find a                                                               
job or a  place to live but is currently  not [effective] because                                                               
there are many  prisoners per parole officer.   This program puts                                                               
an individual in  their own setting, receiving  treatment, and an                                                               
opportunity to abide  by the rules.  She pointed  out that should                                                               
the offender not obey the rules  they will serve the remainder of                                                               
their time in jail.   She suggested encouraging those with "these                                                               
kinds of issues" to undergo treatment rather than penalize them.                                                                
2:02:30 PM                                                                                                                    
REPRESENTATIVE WILSON  pointed to the  chart on page 9  which she                                                               
described  as  a potential  cost  savings  per individual.    The                                                               
intent is to incentivize a  program currently in existence which,                                                               
she noted,  is that  an individual  in pre-trial  receives credit                                                               
for sitting  there.   "I go  and say I'm  going to  get treatment                                                               
while I'm  waiting to  go to  trial, I  don't.   That just  to me                                                               
seems very  backwards to be able  to do that," she  related.  She                                                               
noted that pages 9-10 indicate  more savings, and page 11 depicts                                                               
a reduction of 31 percent,  with significant reduction across all                                                               
age groups  and offenses.  She  opined that the reduction  is due                                                               
to individuals living  in their own community  versus taking them                                                               
completely  out  of  it.    She  pointed  to  page  12,  "general                                                               
recidivism",  "EM recidivism"  and  "general  recidivism less  EM                                                               
recidivism" from  FY2007-FY2011.  Page  13, is the BI  TAD device                                                               
which  has proven  effective in  Alaska  and, she  said, that  90                                                               
percent  of Alaska's  offenders/inmates have  alcohol or  illegal                                                               
drugs  involved in  their  crimes.   She  noted  there  is an  18                                                               
percent  recidivism rate  for offenders  who  serve their  entire                                                               
sentence on  the EM program,  and were released for  time served.                                                               
She  pointed out  that  the state  can save  $12  million if  the                                                               
program   is  utilized   by  individuals   already  enrolled   in                                                               
electronic monitoring  during FY2014.  However,  if an individual                                                               
is currently on  the EM program, this bill does  not affect them.                                                               
She  reiterated   that  EM  has   been  successfully   tested  in                                                               
Anchorage,  Kotzebue,  Bethel,   Palmer/Wasilla,  Fairbanks,  and                                                               
2:04:53 PM                                                                                                                    
REPRESENTATIVE WILSON  advised it was  never her intent  that the                                                               
program would  be solely private  residence, and if  the offender                                                               
commits  another crime  while on  EM they  will not  receive time                                                               
served or good time.   Representative Wilson commented that HB 15                                                               
is  not ready  to be  passed out  of committee  today as  she has                                                               
questions on the statute.  She  asked "should we just offer it to                                                               
those  going into  a treatment  program,  actually a  residential                                                               
treatment program, or the 24/7  program that we are hearing would                                                               
not  be eligible  under  the  current way  this  bill is  written                                                               
because it is not a  residential treatment."  However, she noted,                                                               
the  individual   being  monitored   24/7,  is  holding   a  job,                                                               
performing according to  DOC's requirements, and is  outside of a                                                               
treatment program.   There is a question that  once an individual                                                               
is  sentenced,  can  they  stay  on the  same  monitor  versus  a                                                               
different monitor where  they will have to check  in with someone                                                               
randomly.   She described that  scenario as being  difficult when                                                               
the  individual  has a  job  and  yet  with  the EM  device,  the                                                               
individual is monitored  24/7 and does not have to  leave work to                                                               
be tested.   She stated that as far as  the incentivize treatment                                                               
portion of  the bill  that is  as far as  she plans  to go.   She                                                               
opined that currently  under HB 15 an individual in  jail and not                                                               
currently on EM  would not be eligible.  She  further opined that                                                               
the more time an individual stays  in jail without the right kind                                                               
of  treatment, or  able to  get back  into society,  "having that                                                               
step down," the more likely the  individual is to stay within the                                                               
system.  She described the goal  as getting Alaskans out of jail,                                                               
able to live in society, and have a family.                                                                                     
2:09:00 PM                                                                                                                    
REPRESENTATIVE  KELLER  asked  the  amount of  time  being  spent                                                               
between arrest  and sentencing.   He said  he had heard  the pre-                                                               
trial  time   was  large,  and  the   Alaska  State  Constitution                                                               
guarantees a speedy trial.                                                                                                      
REPRESENTATIVE WILSON  offered that  if an individual  is sitting                                                               
jail  waiting for  trial, and  found innocent,  "you've got  time                                                               
banked, because you served and you didn't have to serve."                                                                       
2:09:57 PM                                                                                                                    
REPRESENTATIVE KELLER asked that  Representative Wilson bring the                                                               
information  to the  committee  of  the amount  of  time and  the                                                               
number of  people that are  in this  position, and the  number of                                                               
individuals and the amount of banked  time.  He expressed that he                                                               
would like  to know why she  backed away from house  arrest as he                                                               
understood that conditions of bail  sometimes include third party                                                               
custodians with the individual locked in house arrest.                                                                          
REPRESENTATIVE  WILSON   stated  "that  was  never   our  intent,                                                               
Representative Keller, it  was kind of an accident."   The intent                                                               
was always for electronic monitoring,  she said she took the part                                                               
of the statute  that looked "like they took just  that part out."                                                               
She noted that a court case  decided if an individual is in their                                                               
residence  [with a  3rd party  custodian] and  not allowed  to go                                                               
where they would  like, it is not the same  type of monitoring as                                                               
electronic monitors.   She added that most of the  people in jail                                                               
are  due to  drugs and  alcohol, and  courts have  been concerned                                                               
that the third party custodian is  not monitoring as well as they                                                               
REPRESENTATIVE KELLER said there  are individuals that take being                                                               
released into  custody very  serious, as it  changes the  life of                                                               
the  person that  takes it  seriously and  in house  arrest.   He                                                               
suggested that  the appropriate response  may be to  do something                                                               
to  ensure that  the  terms  of bail  are  met  rather than  just                                                               
ignoring that arena and allowing it  to get weaker.  He likes the                                                               
idea  of including  this into  the bill  and would  like to  hear                                                               
reasons why not.                                                                                                                
REPRESENTATIVE WILSON deferred to  "bright people behind me," and                                                               
noted she is not an attorney.                                                                                                   
2:12:51 PM                                                                                                                    
CHAIR  LEDOUX  referred   to  Representative  Wilson's  statement                                                               
regarding "banked time"  and asked for clarification  that in the                                                               
event an individual  is acquitted and has served  time, that time                                                               
can be used the next time the individual is arrested.                                                                           
REPRESENTATIVE  WILSON  said  "it  is my  understanding  that  is                                                               
true."   Literally, she remarked,  an individual has  served time                                                               
but has been  acquitted so later on the individual  can use it if                                                               
arrested again.                                                                                                                 
2:13:50 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  commented  that   he  was  not  aware  of                                                               
"banking."  He opined that it  is common that a pre-trial release                                                               
is not as  restrictive as a house arrest post  sentencing, and it                                                               
is fairly  common for an  individual to negotiate  receiving jail                                                               
credit before sentencing so it  is part of the pre-trial release,                                                               
he  said.   In terms  of speedy  trial, he  suspects that  speedy                                                               
trial has been waived more than once.                                                                                           
CHAIR LEDOUX opened public testimony.                                                                                           
2:16:06 PM                                                                                                                    
BILLY  HOUSER,  Probation  Officer,  Division  of  Probation  and                                                               
Parole,  Department  of  Corrections,  said  he  is  the  program                                                               
manager for  the Department of Corrections  Electronic Monitoring                                                               
and is not clear as to the  changes made in the drafts.  However,                                                               
good  time is  the key  issue  and part  of Sec.  4 [Version  29-                                                               
LS0102\E] deals with  good behavior while a  prisoner is confined                                                               
at a  correctional facility and  noted it is problematic  for the                                                               
electronic monitoring  program.   He said  the draft  he reviewed                                                               
would have been fine and would  have resolved those issues if the                                                               
last portion,  " ... ordered by  the court and the  defendant has                                                               
not committed a crime while  in the residential treatment program                                                               
or under  electronic monitoring."   He indicated that  removal of                                                               
the last  sentence could achieve  the goals of  this legislation,                                                               
which  is   both  rehabilitation  and  reducing   the  amount  of                                                               
individuals  in custody.   He  pointed out  that the  first three                                                               
sections regarding sentencing  and pretrial credit have  a lot of                                                               
CHAIR LEDOUX  noted that  Mr. Houser  may not  be looking  at the                                                               
correct draft.                                                                                                                  
2:19:39 PM                                                                                                                    
REPRESENTATIVE WILSON offered  that Mr. Houser is  looking at the                                                               
committee substitute  that was  "out" last  night.   She remarked                                                               
the section is  problematic which is why it is  no longer part of                                                               
the bill.                                                                                                                       
MR. HOUSER  said he now  understands that everything  was removed                                                               
except for the prior section 4, which addresses AS 33.20.010(c).                                                                
REPRESENTATIVE WILSON responded that  Sec. 1, AS 12.55.027(d) was                                                               
in  the  original  bill.    She  explained  that  "in  a  private                                                               
residence"  is  removed  so  it   reads  "for  time  spent  under                                                               
electronic  monitoring"   and  added   the  following:   "if  the                                                               
defendant  has  not  committed a  crime  while  under  electronic                                                               
monitoring."   She  further responded  that  AS 33.20.010(c)  was                                                               
amended  to  read  "a  prisoner  shall be  awarded  a  good  time                                                               
deduction under  (a) of this  section for  any period spent  in a                                                               
residential   treatment  program,   or  while   under  electronic                                                               
monitoring  if the  defendant  has not  committed  a crime  while                                                               
under electronic monitoring."                                                                                                   
MR. HOUSER  stated that from an  electronic monitoring standpoint                                                               
and  a restorative  justice philosophy  standpoint, allowing  the                                                               
courts to  give sentence  credit to an  individual in  a pretrial                                                               
status  is very  problematic.   Currently,  he  stated, the  bail                                                               
companies are non-regulated  and are in a  for-profit position in                                                               
that when an  individual does not have the money  to pay for bail                                                               
and electronic monitoring, the individual  will not receive those                                                               
services.   The  program  rules are  "all over  the  map" and  in                                                               
essence defendants  seek continuance after continuance  and waive                                                               
their  right to  a  speedy trial.   He  described  a scenario  of                                                               
reviewing an electronic monitoring  application for an individual                                                               
who  had  served three  and  one-half  years  to a  private  bail                                                               
company  on electronic  monitoring.   The  individual planned  to                                                               
take a  plea agreement where  he would  serve a three  years flat                                                               
time  sentence.   This  would be  the  individual's third  felony                                                               
conviction,  presumptive  under  sentencing  guidelines,  and  in                                                               
essence, he expressed, if the  court were to allow the individual                                                               
credit for the time  he was out on bail he  would not have served                                                               
a single day in jail for  a conviction that requires three years.                                                               
Mr. Houser  reiterated there is  "so much"  disparative treatment                                                               
involved that  it is  very problematic.   He related  that judges                                                               
are  not familiar  enough  with  correctional interstate  compact                                                               
rules  and regulations  for  actual  correctional facilities  and                                                               
probation  and  parole  and were  giving  credit  to  individuals                                                               
living out of  state with a private bail company  to "serve their                                                               
sentence."   The  individual then  receives jail  credit for  it,                                                               
when in fact,  the individual should have  been processed through                                                               
the interstate compact  for corrections, he expressed.   He noted                                                               
that  if that  process is  not met,  or regulated,  the state  is                                                               
subject  to  civil  penalties.    In  essence,  he  remarked,  AS                                                               
33.20.010(c) would be  served in helping to reduce  the number of                                                               
individuals incarcerated.   Realistically, he commented,  DOC has                                                               
the ability right  now to place pretrial  prisoners on electronic                                                               
monitoring  house arrest  as  a designation  process.   The  only                                                               
thing that keeps  DOC from currently doing that is  the good time                                                               
credit statute.  He explained that  if an individual is placed on                                                               
pretrial, the individual  does not get the good time  but, if DOC                                                               
designated  them to  pretrial, they  would.   The  goal could  be                                                               
achieved just by amending AS 33.20.010(c).                                                                                      
2:27:21 PM                                                                                                                    
DOUGLAS  MOODY,   Deputy  Public  Defender,   Criminal  Division,                                                               
Central   Office,   Public   Defender   Agency,   Department   of                                                               
Administration, stated  that electronic monitoring  is sufficient                                                               
both  to  protect  the  public   and  to  provide  the  necessary                                                               
structure to  reintegrate the individuals.   The whole  idea with                                                               
offenders in  jail is  because the  state was  mad at  them about                                                               
their behavior,  and not  so much  afraid of them.   The  goal is                                                               
that they  change their behavior  and get them plugged  back into                                                               
being productive members  of society and, he said, HB  15 will do                                                               
that.  Anything  that helps DOC expand  its electronic monitoring                                                               
program  both post-trial  and  pre-trial,  the public  defender's                                                               
office  supports.    He  opined   it  would  benefit  the  public                                                               
defender's  particular  client base  in  that  they have  sliding                                                               
scales  for   their  electronic   monitoring  so   that  indigent                                                               
defendants can  participate.  Whereas  Mr. Houser is  correct, he                                                               
noted, that  if it is  totally left to the  free market a  lot of                                                               
public defender clients can't get  out because they can't pay the                                                               
fee.  He then addressed the  question about banking time and said                                                               
the time an  individual spends in jail could only  be credited to                                                               
the  case the  individual  is  in jail  upon.    For example,  he                                                               
explained,  an individual  does six  months  on one  case and  is                                                               
acquitted, that  time is dead  time and  never counts again.   He                                                               
further explained  that the banking  situation arises  when there                                                               
are probation hearings and an  individual may sit in jail waiting                                                               
for a  probation revocation  hearing for 60  days.   The offender                                                               
finally appears  in front of the  judge and the judge  revokes 30                                                               
days, so  the individual  has 30  days in the  bank for  the next                                                               
violation but on that case only, he expressed.                                                                                  
2:31:13 PM                                                                                                                    
RICK SVOBODNY, Deputy Attorney  General, Central Office, Criminal                                                               
Division, Department of  Law, stated he would not  be focusing so                                                               
much  on electronic  monitoring or  credit for  jail time  for an                                                               
individual  staying  in  their private  residence.    But  rather                                                               
offered two concepts that sound a  lot alike but are not the same                                                               
at all.   There is credit for time served  in pre-trial, which is                                                               
before an individual  has been sentenced they can  get credit for                                                               
time  in jail,  or credit  for time  in treatment  programs.   He                                                               
noted that what has been added  with this bill is credit for time                                                               
on electronic  monitoring.  He  explained that the  other concept                                                               
is good time  credit where an individual has been  sentenced to a                                                               
term in jail and to control  the individual in jail, they receive                                                               
a reduction of  one day for every three days  served.  Currently,                                                               
he  said, an  individual receives  credit for  time in  pre-trial                                                               
when the  individual actually is  in jail.   For example,  if the                                                               
judge  said bail  is  $100,000, and  the  individual cannot  post                                                               
$100,000 the individual  may stay in jail unless  there are other                                                               
conditions  for their  release.   Every day  an individual  is in                                                               
jail  they get  credit  for that  time.   He  paraphrased a  1980                                                               
Alaska Supreme Court  decision that said, "if a  court orders you                                                               
do something that is the functional  equivalent of jail - that it                                                               
is  like jail  in  many  respects in  pretrial.   The  individual                                                               
should get  credit for  that too."   He noted  two cases  Lock v.                                                             
State  of Alaska,  609 P.2d  539 (1980)  and Nygren  v. State  of                                                           
Alaska,  658  P.2d 141  (Alaska  App.  1983)  that set  out  that                                                             
proposition.   He opined that  when a court orders  an individual                                                               
pre-trial,  as a  condition of  bail to  a treatment  program the                                                               
individual  should  receive credit  as  though  sitting in  jail.                                                               
Although,  he said  there were  examples of  a treatment  program                                                               
being run  outside of Anchorage  for alcohol treatment in  a bar,                                                               
"Sgt.  Preston's Lodge."    The courts  have  granted credit  for                                                               
showing up  at the Department of  Health & Social Services  or an                                                               
entity designated by  the Department of Health  & Social Services                                                               
to take medication  that wasn't related to alcohol.   Some judges                                                               
believe  that was  the  functional equivalent  of  jail and  were                                                               
giving people credit.                                                                                                           
2:36:35 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked if  Mr. Svobodny was talking about                                                               
good time, or credit for time served.                                                                                           
2:36:48 PM                                                                                                                    
MR. SVOBODNY  responded that  he was  referring to  conditions of                                                               
bail  that  are  set  by  the court  prior  to  trial,  prior  to                                                               
conviction, and  credit for time  actually served.  The  Court of                                                               
Appeals  and the  Alaska Supreme  Court were  good about  telling                                                               
judges that it doesn't count  when the individual is out fishing.                                                               
He offered  another example where  an individual was  released to                                                               
the custody  of his  mother.   The individual  came to  court and                                                               
said "that's like  jail," and the court gave him  credit of which                                                               
the  Court  of  Appeals  overturned,  he noted.    In  2007,  the                                                               
legislature put standards into the  law which became AS 12.55.027                                                               
credit  for  time   served.    The  legislature   decided  if  an                                                               
individual  is in  a treatment  program and  it has  restrictions                                                               
which  the  Court of  Appeals  and  Supreme  Court said  are  the                                                               
functional equivalent  of jail,  the individual receives  one day                                                               
credit for  every day in  the program.   "You don't even  need to                                                               
complete the program,  but just for every day you've  been in it,                                                               
you get  credit," he said, and  that is where AS  12.25.027 comes                                                               
in.    He  offered  that   he  is  not  arguing  that  electronic                                                               
monitoring is not  a good thing or a helpful  tool, but suggested                                                               
it is not the functional equivalent  of jail.  He described it as                                                               
being  back  to the  old  days,  before standards  for  treatment                                                               
programs as no standards for EM  have been imposed.  He explained                                                               
that the legislature imposes standards  for treatment programs in                                                               
that  it  had  to  be   a  legitimate  treatment  program  and  a                                                               
representative  of the  program had  to go  to court  and testify                                                               
that the individual was in their  program.  He described the core                                                               
principle  of Sec.  2, AS  12.55.027  as when  an individual  has                                                               
served time in  jail, or the functional equivalent  of jail time,                                                               
the  individual  should  receive  credit and  the  question  that                                                               
requires  answering  "is  wearing   an  electronic  bracelet  the                                                               
functional equivalent of incarceration."                                                                                        
2:42:34 PM                                                                                                                    
REPRESENTATIVE KELLER asked  Mr. Svobodny to make  his last point                                                               
MR.  SVOBODNY  responded  that  he   will  be  losing  a  lot  of                                                               
prosecutors  due  to   the  budget  and  he   would  rather  have                                                               
individuals do less time in jail,  rather than have people who do                                                               
a good service  lose their jobs.  He is  not opposed, in general,                                                               
to reducing the  amount of time some individuals go  to jail but,                                                               
he  stated, "why  don't  we just  call it  that  - let's  commute                                                               
everyone by one-third  of their time instead of  creating a legal                                                               
2:43:43 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  referred to  Sec. 1,  and stated  it is                                                               
confusing due to  the way it is currently drafted  "may not," and                                                               
proposed the language "shall grant credit."                                                                                     
MR. SVOBODNY answered  there is no need to change  anything in AS                                                               
12.55.027  as  it  says  "shall  not grant  credit"  is  for  the                                                               
previous examples.   That  is why in  2007, the  legislature said                                                               
"they shall not grant credit."                                                                                                  
2:45:36 PM                                                                                                                    
REPRESENTATIVE GRUENBERG noted that  the current language is that                                                               
"the  court  may   not  grant  credit  [against   a  sentence  of                                                               
imprisonment]  for time  spent in  a private  residence ..."   He                                                               
asked whether there were any  circumstances wherein an individual                                                               
should be able to do that.                                                                                                      
MR.  SVOBODNY  replied in  the  event  an  individual is  in  the                                                               
functional equivalent of  jail, then yes.  If  the court releases                                                               
an individual  on his own  recognizance, and orders that  he live                                                               
at  his residence  and  not leave  the room,  that  would be  the                                                               
functional equivalent of incarceration.                                                                                         
2:47:18 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG   surmised  that  Mr.   Svobodny  would                                                               
support allowing credit for time in  a private residence if it is                                                               
the functional equivalent of incarceration.                                                                                     
MR. SVOBODNY responded "yes."                                                                                                   
REPRESENTATIVE  GRUENBERG  questioned   whether  there  were  any                                                               
circumstance under which credit  should be granted for electronic                                                               
MR.  SVOBODNY replied  that it  is  hard for  him to  think of  a                                                               
circumstance  wherein  all the  court  is  requiring is  that  an                                                               
individual wear  an ankle  bracelet.  He  said he  can't conceive                                                               
anyone thinking that is the same as being in jail.                                                                              
2:49:03 PM                                                                                                                    
REPRESENTATIVE  CLAMAN said  Mr. Svobodny  prefaced his  comments                                                               
that up until 2007 when AS  12.25.027 was passed the courts did a                                                               
good  job of  developing a  common  law of  what constituted  the                                                               
functional equivalent of jail for purposes  of what is known as a                                                               
legal matter is Nygren credit.                                                                                                
MR. SVOBODNY answered "yes," if you mean the appellate courts.                                                                  
REPRESENTATIVE  CLAMAN  noted that  since  2007,  there has  been                                                               
considerable  additional  litigation  about Nygren  credit.    He                                                             
further noted  that the  old common law  of Nygren  credit versus                                                             
the  statutory  law turned  out  to  not perfectly  match  Nygren                                                             
credit.   He offered that  the philosophical question  is whether                                                               
the state  is better off trying  to define this as  a legislature                                                               
by statute, or  might the state be better off  by saying that the                                                               
courts are  doing a good  job developing  this as common  law and                                                               
adapting to modern  technology as it comes up.   He asked whether                                                               
the state  would be  better off  getting out  of the  business of                                                               
defining this and let the courts  continue to deal with it rather                                                               
than writing it as statute.                                                                                                     
MR. SVOBODNY responded that it  depends upon what the legislature                                                               
would do.  He said he knows  what the courts have said, and would                                                               
the state give  people credit for staying in their  own homes and                                                               
wearing an  ankle bracelet.   He remarked that the  discussion is                                                               
credit for time  served and he has no problem  with the appellate                                                               
court  decisions  if  it  starts   with  Nygren  credit  for  the                                                             
functionally  equivalent  of  incarceration.     He  agreed  with                                                               
Representative Claman that  there is an existing  statute that is                                                               
a little more restrictive than where  the courts were at the time                                                               
AS 12.25.027  was passed.  He  described it as a  nuance issue as                                                               
opposed to public policy issue.                                                                                                 
2:52:35 PM                                                                                                                    
CHAIR   LEDOUX  asked   whether  the   legislature  is   in  this                                                               
legislative  predicament  right  now with  this  statute  because                                                               
there are a few "off the  wall" cases by the Superior Courts that                                                               
possibly the Department  of Law and legislature reacted  to.  She                                                               
suggested  the  legislature consider  going  back  to the  system                                                               
especially  now that  common law  is  more developed.   With  the                                                               
guidance  of the  appellate courts,  trial courts  have a  little                                                               
more discretion  to determine what  the functional  equivalent of                                                               
jail is, she said.                                                                                                              
MR. SVOBODNY responded "Yes, we might  be better off."  He opined                                                               
that the  reason there  were less  than appropriate  decisions by                                                               
the trial courts is that it  is hard to predict without standards                                                               
whether something  is going  to work  or not.   He referred  to a                                                               
Juneau  case wherein  a defendant  was found  at a  movie theater                                                               
with  his girlfriend  rather than  being home  or at  work.   The                                                               
trial court  determined that dinner and  a date was not  the same                                                               
as being in  jail.  "If we put the  resources into fighting about                                                               
it, both from the defense point  of view and the state's point of                                                               
view, we're just fine with the appellate court decisions."                                                                      
2:55:04 PM                                                                                                                    
CHAIR  LEDOUX  surmised  that rather  than  a  statute  currently                                                               
reading  "the  courts  may  not grant,"  that  perhaps  the  best                                                               
situation  would be  a statute  with a  number of  guidelines the                                                               
courts should consider when making decisions.                                                                                   
MR. SVOBODNY  responded in the  affirmative and advised  that was                                                               
done in 2007  in (a), (b), (c), the major  place that people were                                                               
getting credit was treatment programs.                                                                                          
2:55:55 PM                                                                                                                    
REPRESENTATIVE GRUENBERG said subsection  (c) uses the concept of                                                               
functional equivalent and provides guidelines.                                                                                  
MR. SVOBODNY  responded that Sec. 3  is credit for good  time and                                                               
is an entirely different  concept.  That is a tool  as to how the                                                               
Department  of  Corrections  causes people  to  behave  following                                                               
sentencing  where an  individual is  given one-third  off of  the                                                               
sentence then,  he explained, should the  prisoner cause problems                                                               
DOC  potentially takes  that  time away.    After fulfilling  the                                                               
sentence and the individual is out  on probation or parole and is                                                               
using electronic  monitoring, the individual receives  credit for                                                               
good time  if their  probation or  parole is  being revoked.   He                                                               
opined that if the individual is  not in custody, it is a "bigger                                                               
legal fiction" to  say an individual should be given  one day for                                                               
each  three  days served  so  the  individual  will behave.    He                                                               
reminded the committee that electronic  monitoring is a device to                                                               
help  in public  protection and  it has  the ancillary  effect of                                                               
keeping  people  from  breaking  the  law.    He  expressed  that                                                               
electronic  monitoring  does  not  stop  people  from  committing                                                               
crimes as it is not a panacea, it is a tool.                                                                                    
3:00:04 PM                                                                                                                    
CHAIR LEDOUX  announced HB 15  is held over and  public testimony                                                               
remains open.                                                                                                                   
3:00:52 PM                                                                                                                    

Document Name Date/Time Subjects
HB15 Electronic Monitoring Presentation 2-11-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOA.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOA_Public Def..pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOC.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Fiscal Note - DOL.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Sponsor Statement 2-11-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 1 - BITAD Alcohol monitoring technology utilized by Alaska DOC.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 2 - US Dept. of Justice Electronic monitoring and recidivism.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 3 - Electronic Monitoring Requirements.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 4 - Electronic Monitoring Terms and Conditions.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 5 - DOC House arrest and EM program indigent form.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Supporting Document 6 - Use of electronic monitoring in the Alaska.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Ver. W.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB79 Draft Proposed CS ver G.pdf HJUD 2/20/2015 1:00:00 PM
HB 79
HB83 Fiscal Note-JUD.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Fiscal Note-LAW.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - AS 09.68.130.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil Case data.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB 83 Draft Proposed CS ver H.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB 83 Sponsor Statement.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Summary of Changes.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - AJC.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil Case Form.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB15 Supporting Documents - Legal Memorandum 2-19-2015.pdf HJUD 2/20/2015 1:00:00 PM
HB 15
HB15 Draft Proposed CS ver E.PDF HJUD 2/20/2015 1:00:00 PM
HB15 Draft Proposed CS ver N.PDF HJUD 2/20/2015 1:00:00 PM
HB 15
HB83 Summary of Changes-Corrected.pdf HJUD 2/20/2015 1:00:00 PM
HB 83
HB83 Supporting Documents - Civil case report 2001.PDF HJUD 2/20/2015 1:00:00 PM
HB 83
HB79 Written Testimony - Marcy.pdf HJUD 2/20/2015 1:00:00 PM
HB 79