Alaska's sweeping new crime law already under pressure for change

Law enforcement agencies are agitating for changes to parts of Alaska's sweeping new crime law before all of Senate Bill 91 has even gone into effect.

The law, based on recommendations from the 13-member Alaska Criminal Justice Commission, aims to reduce prison overcrowding and recidivism by giving "low risk" offenders treatment instead of time behind bars.

But is the law, parts of which took effect last summer, making Alaska safer? Or are criminals just getting a get-out-of-jail free card?

Take shoplifting, an issue covered in the crime measure some people would like to toughen. The new law made thefts under $250 punishable by a fine and probation but not jail.

That's led to a reported 30 percent to 40 percent spike in shoplifting among the retailers of the 17-member Wasilla Retail Crime Association, according to Michael Hand, who heads the group that includes loss-prevention officers from Wasilla and Anchorage as well as law enforcement.

Shoplifters don't even get taken into police custody, Hand said. "It's getting worse and worse as they figure out they don't have to get arrested anymore."

Most of the shoplifters he said he encounters say they stole to buy drugs.

A rise in shoplifting "boils over into the community" when stolen items get sold at online auctions, he said. "When people buy that stuff, they think, 'I didn't steal it.' But they're putting cash into the pockets of people that are stealing from the community and they're putting cash in the pockets of drug dealers."

State law and public safety officials citing "emboldened offenders" want the Criminal Justice Commission to recommend a change to the new law making a defendant's third low-level theft arrest within five years a more serious crime that warrants stiffer penalties.

But there was specific data before the commission when it recommended that original theft provision, according to Susanne DiPietro, executive director of the Alaska Judicial Council.

In 2014, there were 324 offenders admitted to prison for fourth-degree theft. It takes about $160 a day to keep someone in prison. More than 90 percent were petty shoplifting thefts, mostly toiletries and alcohol. The perpetrators spent an average of 23 days behind bars after their convictions.

That means the state was paying an average of $3,680 to jail someone who may have stolen shampoo or a bottle of whiskey.

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Data shows "small theft offenders were spending quite a bit of time in prison," she said. "We already know that prison is not really going to make them stop offending. It might even make them offend more. It's expensive. You have to ask yourself: Is that the right approach?"

Savings and treatment

The law comes with an estimated $380 million in savings. That, and half the state's marijuana tax, is supposed to be spent on treatment, pretrial supervision, violence prevention programming and victim services.

The law's first provisions launched in July, but some parts won't go into effect until 2018.

However, SB 91 has triggered an uproar in the public and consternation from police, prosecutors and judges who say some aspects are leading to more crime.

Some of the ire is misinformed by confusion over what the nearly 200-page law really does, officials have said.

But a major player in the creation of the law said last week that other concerns are legitimate enough that another hard look at changes may be warranted.

Sen. John Coghill, a co-sponsor of SB 91, said in an interview last week that three or four of the law's 45 major provisions "are not working that well."

"Let's address them," he said. "The others are going to work and they are working."

Coghill, a North Pole Republican, also sits on the commission that wrote the recommendations underpinning the new law. He chairs the Senate Judiciary Committee, which will hold hearings on it.

The Legislature is expected to consider changes to some of the more controversial parts of the law. Coghill said he plans to take his lead from whatever the commission recommends.

The Alaska departments of law and public safety are recommending numerous fixes. They include changes to provisions that removed mandatory jail time for first-time Class C felons, the lowest grade of felony, for crimes including terroristic threatening and promoting prostitution; eliminated jail for first and second thefts under $250; and cut jail time for defendants who violate their bail conditions.

The proposals come amid ongoing concerns that public pressure is driving reform before the new law has had a chance to work.

"The thing about policymaking is that policymakers reserve the right to make changes," said Brad Myrstol, director of the Alaska Justice Information Center, which is analyzing data as SB 91 unfolds. "I don't think it's ever wise to make changes before you fully understand the impacts of the full rounds of changes."

Prison makes prisoners

Alaska has a prison problem.

Even as state corrections spending rose to $327 million in 2014, two out of three people released from Alaska prisons returned within three years, according to a 21-page state guide on the new law.

Data at the root of many provisions of SB 91 show incarceration makes low-level offenders into worse criminals, DiPietro said.

"This is a part that's really hard for people to accept but the data really supports it," DiPietro said. "Those type of offenders, sending them to prison not only won't make them better but a lot of times will make them worse."

That's where the emphasis on treatment over incarceration comes in, she said.

But the system hasn't caught up with the law yet, Juneau's police chief told residents gathered at a public-safety meeting last week that was broadcast over the internet.

Lag time

The combination of SB 91, the state's budget crisis and the statewide heroin epidemic has created a "perfect storm," JPD Chief Bryce Johnson said.

Johnson linked Juneau's spike in burglaries and property crimes to drug seekers who have few options for detox or longer-term treatment. Meanwhile, he said, budget cuts mean police and prosecutors don't have the resources to go after lower-level misdemeanor cases because they need to give priority to more serious felonies.

Now SB 91 is encouraging less jail time and more treatment, but there aren't enough prosecutions or treatment facilities to do that yet, Johnson said. Without prosecutions, offenders can't be ordered into treatment, he noted.

"The idea of taking people and getting them to treatment — it's not working because you can't get those convictions in the first place," he said. "If you get a conviction, they're sentenced to something that doesn't exist yet."

The Legislature inserted $11 million into last year's budget for treatment, according to Coghill. That amount rises to $30 million using cost savings from the new law, he said.

Treatment grants from money appropriated in June have already been awarded to providers or soon will be, DiPietro said. "So the treatment services should be coming on line very soon."

No priors, no time

Trevor Bernard is the kind of Class C felony defendant who raises red flags under the new law.

The 27-year-old from Anchorage led Alaska State Troopers on a high-speed pursuit in a stolen pickup that began near the Knik River on the Old Glenn Highway and ended only after he was forced into a ditch, according to a sworn affidavit filed by Trooper Dan Brom.

Bernard eluded Brom for 3 miles, made a U-turn and started driving toward Palmer at over 80 mph on the icy two-lane road, continuing even after spike strips deflated two of his tires.

Attorneys involved in the case say Bernard faces no prison time if convicted on felony charges of failing to stop at the direction of an officer. He has no prior felony convictions.

Court records show Bernard was charged with felonies in 2016 and 2015 but had both charges — intent to sell drugs and firearms theft — reduced to misdemeanors in plea deals.

Because of cases like Bernard's, the departments of law and public safety are asking the Criminal Justice Commission to recommend jail for first-time Class C felonies.

But the new law's go-easy approach to Class C felony sentencing stemmed from the commission's original finding of "a robust body of research" showing inmates with longer sentences aren't any less likely to reoffend than similar inmates who serve shorter ones, according to background information on proposed changes provided by the judicial council.

It's harder for some offenders to serve probation than do time in prison, given the drug tests, regular check-ins with a probation officer and other requirements, DiPietro said. And the law still gives prosecutors the right to argue for "aggravators" that could merit incarceration, she said.

More work to do

Last week, the commission began considering proposed changes to the new law. It approved a recommendation to restore misdemeanor status to violating conditions of release, punishable by five days in jail.

The commission will meet again Friday to consider recommendations on more changes to SB 91.

Some members expressed concerns the public and law enforcement backlash may trigger changes to the law before it has time to work.

"This is a real conundrum and it does concern me that SB 91 is getting tagged with being responsible for being part of this 'perfect storm,' " said commissioner Jeff Jessee, a program officer with the Alaska Mental Health Trust Authority.

Jessee expressed concerns about returning to more jail and prison time instead of researching what's not working in the system, whether it's on the prosecution side or the treatment side.

"That seems to be going in reverse when we quite frankly should be doubling down making this work, not retreating," he said. "I'm just very concerned that we not rush to judgment on some of these changes that in the long run may not be to our collective interest."