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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DON L. BAKER,
Court of Appeals No. A-13831
Appellant, Trial Court No. 4FA-20-02722 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2762 - October 20, 2023
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Earl A. Peterson, Judge.
Appearances : Paul E. Malin, Attorney at Law, under contract
with the Public Defender Agency, and Samantha Cherot,
Public Defender, Anchorage, for the Appellant. Kenneth M.
Rosenstein, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge HARBISON, writing for the Court.
Judge ALLARD, concurring.
Judge TERRELL, dissenting.
----------------------- Page 2-----------------------
Don L. Baker pleaded guilty to felony failure to stop at the direction of a
1
police officer . Prior to remanding to serve his jail time, Baker spent 165 days on bail
release, supervised by electronic monitoring. Relying on AS 12.55.027, Baker later
asked the superior court to grant him credit toward his sentence for the time he spent on
electronic monitoring. The court concluded that, because Baker's bail order allowed
him to leave his residence in order to go grocery shopping, he did not qualify for credit
under subsection (d) of this statute.
Baker appeals, contending the superior court erred in denying this motion.
For the reasons explained in this opinion, we conclude that the superior court applied
an incorrect legal analysis, and we remand this case to the superior court for further
proceedings consistent with this opinion.
Background f acts and p roceedings
Baker was arrested for felony driving under the influence, felony refusal
to submit to a chemical test, and felony failure to stop at the direction of a police officer.
At his arraignment, he asked to be released on the Alaska Department of Corrections '
Pretrial Enforcement Division (PED) electronic monitoring program. Although Baker
did not request that his electronic monitoring program include passes for grocery
shopping, the court sua sponte ordered these passes after it learned that Baker lived
alone and relied on food stamps.
The bail order imposing electronic monitoring as a condition of release
stated, in relevant part:
The defendant is ordered to supervision by a Pretrial
Enforcement Division (PED) officer during the pretrial
period as provided by AS 33.07 .
Electronic monitoring ordered. Defendant to remain
in custody until monitor is attached.
1 AS 28.35.182(a)(1).
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----------------------- Page 3-----------------------
Curfew, substance monitoring and location
restrictions as ordered below.
EM monitoring. Curfew, substance monitoring, and
location restrictions. May leave for medical appointments, to
meet with attorney, and for grocery shopping. [Emphasis
added.] Defendant is permitted to work for Dynamic
Painting between the hours of 6:30 am and 5:30 pm and
travel to different work sites with proper notice of work site
addresses to PED. Defendant is to be transported by Bob
Mason or another employee of Dynamic painting to and
from work.
Defendant is not to drive anything with an engine
himself.
Baker later pleaded guilty to one count of felony failure to stop at the
direction of a police officer. Following the change of plea hearing, Baker was given a
remand date. He remained out of custody without incident until then, ultimately
spending a total of approximately 165 days on electronic monitoring.
Baker filed a motion for sentencing credit under AS 12.55.027(d) for the
time he had spent on PED electronic monitoring while on bail release. Baker
acknowledged that this statute allows defendants to obtain credit against their sentences
for time spent on electronic monitoring if they are confined to their residence and
2
permitted to leave only in order to participate in certain enumerated activities. He
asserted that although "grocery shopping" is not specifically listed in the statute, it
nevertheless is a permissible "rehabilitative activity."
The State opposed Baker's motion, arguing that this Court had concluded
3
in Tanner v. State that grocery shopping was not a rehabilitative activity.
2 These activities are: court appearances, meetings with counsel, employment,
educational or vocational training, community volunteer work, medical appointments, and
rehabilitative activities. AS 12.55.027(d).
3 Tanner v. State, 436 P.3d 1061, 1063-64 (Alaska App. 2018).
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----------------------- Page 4-----------------------
The court held an evidentiary hearing on the motion for sentencing credit.
At the hearing, PED Officer Tony Gross testified that Baker had no violations while on
PED electronic monitoring. Gross testified that in order for Baker to leave his residence
to go grocery shopping, he first had to call into the PED office to obtain permission to
go to a specific store for a set amount of time. Gross testified that they "never had any
violations of him exceeding his time frames." On average, Baker's grocery shopping
trips took "about an hour." Gross also testified that, because Baker was on GPS
monitoring, Gross was able to review Baker's movements to see if his travel route
deviated from what was necessary to travel to and from approved activities. According
to Gross's records, there were no deviations. Gross did not recall how often Baker went
grocery shopping.
After hearing the evidence, the superior court denied Baker's motion for
sentencing credit. The court found that AS 12.55.027(d) and Tanner v. State clearly
exclude grocery shopping from the exception carved out for rehabilitative activities.
This appeal followed.
Why we conclude that a remand is necessary
In 2015, the Alaska legislature amended AS 12.55.027(d) to authorize trial
courts to grant certain defendants credit against their sentences for time that they spend
4
on electronic monitoring while on bail release. To qualify for sentencing credit under
this provision, a defendant must be on electronic monitoring and must be confined to
their residence except for (1) court appearances; (2) meetings with counsel; or
(3) "period[s] during which the person is at a location ordered by the court for the
purposes of employment, attending educational or vocational training, performing
4 2015 SLA ch. 20, § 2.
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----------------------- Page 5-----------------------
community volunteer work, or attending a rehabilitative activity or medical
5
appointment."
In Tanner v. State, the defendant claimed that, although grocery shopping
was not one of the enumerated exceptions to home confinement set out in the statute, it
was implicitly included because it would be impossible for a person to comply with the
other requirements of an electronic monitoring program if they did not have some
6
means to gain sustenance. He also asserted that, as a matter of law, passes to go grocery
7
shopping constituted a "rehabilitative activity" under AS 12.55.027(d).
A majority of this Court rejected these arguments. We reasoned that it was
not necessarily absurd for the legislature to exclude grocery shopping from the list of
permitted activities and accordingly it was not implicitly included in the activities
8
enumerated in the statute. We explained that this was because the enumerated activities
(employment, training, meetings with counsel, medical appointments, volunteer work,
etc.) shared an attribute that grocery shopping did not have - that is, they required the
defendant to show up at a particular place and at a particular time and they involved
9
people who would take note if the defendant failed to show up on time.
We also rejected Tanner's argument that his grocery shopping passes
qualified as "attending a rehabilitative activity" as a matter of law. We noted that "[t]he
legislature's use of the word 'attend'" suggested "that the legislature was referring to
defendants who enroll in scheduled sessions of counseling or training" rather than
defendants, like Tanner, who were allowed to "leave their homes for an unspecified
5 AS 12.55.027(d)(1)-(3).
6 Tanner, 436 P.3d at 1063.
7 Id.
8 Id. at 1063-64.
9 Id.
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----------------------- Page 6-----------------------
destination, and for an unspecified length of time, to go shopping for groceries." 10 We
thus rejected Tanner's argument that grocery shopping is necessarily a rehabilitative
activity.
In the present case, although the superior court conducted an evidentiary
hearing, its denial of Baker's request for sentencing credit was primarily based on its
understanding that AS 12.55.027 and Tanner v. State clearly state that grocery shopping
does not fit within the exception carved out for a rehabilitative activity.
But our holding in Tanner was limited to the question of whether grocery
shopping qualifies as a rehabilitative activity as a matter of law. As Judge Allard noted
in her concurring opinion, grocery shopping may be considered a rehabilitative activity
under some factual circumstances.11
Thus, Tanner should not be read to suggest that trial courts are barred from
giving sentencing credit to defendants after allowing defendants to leave their house
arrest to go grocery shopping. Instead, Tanner stands for the principle that grocery
shopping is not a rehabilitative activity as a matter of law - i.e., grocery shopping is
not always a rehabilitative activity. However, there may be cases in which the trial court
would consider grocery shopping to be an activity that would assist in the defendant's
rehabilitation. As we are about to explain, AS 12.55.027 vests the trial court with
considerable discretion in determining what activities are "rehabilitative" for a
particular defendant.
The question of whether grocery shopping can be a rehabilitative activity
under AS 12.55.027(d) is a question of statutory interpretation that must be answered
by applying "reason, practicality, and common sense" while "considering the meaning
10 Id.
11 Id. at 1064-65 (Allard, J., concurring).
- 6 - 2762
----------------------- Page 7-----------------------
of [the statute's] language, its legislative history, and its purpose."12 Thus, "we look
both to the wording of the statute and to its legislative history to see if we can ascertain
the legislature 's intent when it passed the statute."13
There is nothing in the plain language of AS 12.55.027(d) that would
prohibit a court from designating grocery shopping to be a rehabilitative activity. As we
explained in Tanner, "rehabilitation" refers to preparing an inmate for, inter alia, useful
employment or successful reintegration into society.14 We can envision situations in
which grocery shopping could be part of such preparation, and thus would be included
within the statute's plain meaning of rehabilitative activity.
Acquiring the skills needed for self-sufficiency is an important part of a
defendant's transition to becoming a productive citizen. Offenders face many
challenges at the time of their release from incarceration, including finding suitable
accommodations with limited means, managing financially with little or no initial
savings, obtaining a range of everyday necessities, and accessing services and support
for their specific needs. Accordingly, an offender who, for example, has limited
independent living skills or experiences, is in recovery from alcohol addiction, is
receiving government benefits such as food stamps, does not have a reliable source of
transportation, or works irregular hours may experience considerable challenges
obtaining their groceries. A court could reasonably determine that grocery shopping is
a rehabilitative activity for such a defendant.
The statute's legislative history supports this understanding of its plain
language. As we have explained, the legislature amended AS 12.55.027(d) in 2015. The
12 Wilson v. State, Dep't of Corr., 127 P.3d 826, 829 (Alaska 2006).
13 State v. Thompson, 425 P.3d 166, 169 (Alaska App. 2018); see also Y.J. v. State,
130 P.3d 954, 959 (Alaska App. 2006) (explaining that the court's role is "to ascertain the
legislature's intent, and then to construe the statute so as to implement that intent").
14 Tanner, 436 P.3d at 1063.
- 7 - 2762
----------------------- Page 8-----------------------
purpose of this legislation was twofold. First, the legislation was intended to promote
rehabilitation by helping qualifying defendants "gain access to community-based
treatment, maintain employment, access diverse medical treatment, perform
community service work, and begin the process of reintegration" while under the strict
supervision of an electronic monitoring program.15 Second, the legislation was intended
to provide cost-saving benefits to the State of Alaska by granting jail-time credit to
defendants who were able to successfully complete their electronic monitoring
programs without any violations or new crimes. 16
We note that an earlier draft of AS 12.55.027(d) enumerated "counseling"
rather than "a rehabilitative activity" as an approved reason for a defendant to leave
their house arrest.17 According to Representative Tammie Wilson, who sponsored the
legislation, this term was changed in order to "give more tools to the court to determine
what helps [a] person who is in pretrial."18 She explained that the bill would require
"not just the court appearances, but actually . . . doing something to get your life back
on track," and that judges could "use the bill and say, 'You need to do these other things
as well because we want to make sure that you don't come back.'"19
For these reasons, we conclude that the legislature intended to give trial
courts broad discretion to determine what would help offenders transition into
productive members of society - i.e., what to designate as rehabilitative activities -
15 Audio of House Judiciary Comm., House Bill 15, Sponsor Statement of
Representative Tammie Wilson, 1:57:45- 1:58:51 p.m. (Feb. 20, 2015).
16 Id.
17 H.B. 15, 29th Leg., 1st Sess. (as introduced, Mar. 18, 2015).
18 Audio of House Judiciary Comm., House Bill 15, testimony of Representative
Tammie Wilson, 1:05:23-1:05:30 p.m. (Mar. 23, 2015).
19 Id. at 1:44:07-1:44:39 p.m.
- 8 - 2762
----------------------- Page 9-----------------------
and to allow them to do these things while on house arrest without forfeiting sentencing
credit. Thus, although grocery shopping is not a rehabilitative activity as a matter of
law, trial judges have the discretion to designate it as a rehabilitative activity for a
particular defendant, depending on the defendant's circumstances and the
circumstances of their offense.
In this case, Baker was charged with felony DUI, felony refusal to submit
to a chemical test, and felony failure to stop. When releasing him onto house arrest with
PED electronic monitoring, the court sua sponte included passes for grocery shopping
after it learned that Baker lived alone and relied on food stamps. Under these
circumstances, the court could reasonably have concluded that Baker was experiencing
conditions - such as alcohol abuse or addiction, a lack of reliable transportation, or the
need to negotiate government benefits - that would make it difficult to acquire food
while required to stay at home. The court accordingly could have determined that, under
the circumstances of this case, grocery shopping was a rehabilitative activity that
promoted Baker's successful reintegration into society. Because we are concerned that
the superior court did not understand the scope of its authority in this regard, we must
remand this case so that the superior court may make this determination in the first
instance.
Conclusion
We REMAND this case to the superior court for further proceedings
consistent with this opinion.
- 9 - 2762
----------------------- Page 10-----------------------
Judge ALLARD, concurring.
In Tanner v. State I wrote separately "to make clear that, in my view, our
decision [was] limited to the facts presented in [that] case and that a defendant whose
monitoring program includes very limited and highly circumscribed passes specifically
1
to obtain groceries . . . should not necessarily suffer the same disqualification." I write
separately today to emphasize that Baker falls squarely within the category I described
in Tanner, and that this conclusion accords both with the underlying equities of this
case and with the legislative intent of AS 12.55.027(d).
Unlike Tanner, who received four hours of unstructured free time, Baker's
grocery passes were limited and highly circumscribed. Complying with such strict
regulation was undoubtedly rehabilitative for a defendant such as Baker, whose
underlying offense involved a failure to comply with the directives of law enforcement.
Moreover, as the majority points out, Baker did not request that his electronic
monitoring program include passes for grocery shopping. Instead, it was the trial court
that sua sponte ordered those passes because it did not see how Baker, who lived alone
and was reliant on food stamps, was going to obtain the necessary sustenance to live
without some ability to access the grocery store. There is nothing in the record to
suggest that Baker was ever warned this would disqualify him from obtaining credit for
the time he spent on electronic monitoring. Nor is there any reason why he would have
believed this was true: unlike Tanner, who was supervised by a private monitoring
company, Baker was supervised under the state-administered Pretrial Enforcement
Division's electronic monitoring program.
As an appellate court, we are required to interpret statutes "according to
reason, practicality, and common sense, considering the meaning of [the statute's]
1 Tanner v. State, 436 P.3d 1061, 1064 (Alaska App. 2018) (Allard, J., concurring).
- 10 - 2762
----------------------- Page 11-----------------------
2
language, its legislative history, and its purpose." Moreover, when interpreting a
statute, the court's role is "to ascertain the legislature's intent, and then to construe the
3
statute so as to implement that intent."
When the legislature authorized jail-time credit for time spent on
electronic monitoring, its goal was to save money for the State of Alaska while also
rewarding defendants who productively engaged in employment, training, or other
4
rehabilitative activities. By all measures, Baker is the type of defendant envisioned by
the legislature: he was gainfully employed while on electronic monitoring, and he
successfully completed his time without any incidences or violations. Granting Baker
165 days of jail-time credit means that the State of Alaska need not incur any additional,
unnecessary expenses; it also means that Baker is rewarded for his compliance and
rehabilitative efforts, as the legislature intended.
We are obliged "to avoid construing statutes in a way that leads to patently
5
absurd results or to defeat of the obvious legislative purpose behind the statute."
Likewise, we "should not construe statutes in a way 'that leads to unfair or incongruous
results,' or in a manner which yields results that are inexplicably draconian or that have
6
no discernible purpose." Denying Baker credit for the time he successfully served on
electronic monitoring would undermine the underlying purpose of AS 12.55.027(d) and
lead to absurd, draconian results. Although the legislature did not explicitly include
2 Wilson v. State, Dep't of Corr., 127 P.3d 826, 829 (Alaska 2006).
3 Y.J. v. State, 130 P.3d 954, 959 (Alaska App. 2006).
4 See Audio of House Judiciary Comm., House Bill 15, Sponsor Statement of
Representative Tammie Wilson, 1:57:45- 1:58:51 p.m. (Feb. 20, 2015).
5 Williams v. State, 853 P.2d 537, 538 (Alaska App. 1993).
6 Miller v. State , 382 P.3d 1192, 1197 (Alaska App. 2016) (quoting Malutin v. State ,
198 P.3d 1177, 1185 (Alaska App. 2009)).
- 11 - 2762
----------------------- Page 12-----------------------
grocery shopping as one of the enumerated rehabilitative activities that a defendant on
electronic monitoring could do, there is nothing in the plain language, legislative
history, or legislative purpose to suggest that the legislature would view Baker's highly
circumscribed and regulated grocery shopping passes as disqualifying.
For these reasons, I concur fully in the opinion of the Court.
- 12 - 2762
----------------------- Page 13-----------------------
Judge TERRELL, dissenting.
In this case we revisit an issue decided in Tanner v. State, specifically,
whether grocery shopping constitutes a "rehabilitative activity" within the meaning of
1
that term as it is used in AS 12.55.027(d). This statute permits trial courts to award
credit against a sentence of incarceration for time spent on bail release while confined
at home, when that confinement is subject to electronic monitoring and other
restrictions. The statute further lists situations where a person may be temporarily
allowed to leave their home without losing sentence credit for time spent on electronic
monitoring, i.e., when they leave their home "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 educational or vocational training,
performing community volunteer work, or attending a rehabilitative activity or medical
2
appointment."
In Tanner we held that grocery shopping did not constitute a
3
"rehabilitative activity" as that term is used in AS 12.55.027(d)(3). But the majority
now concludes that Tanner held only that one cannot say as a matter of law that grocery
shopping always counts as a "rehabilitative activity," not that it could never constitute
a "rehabilitative activity," and thus remands this case for further consideration. Because
I disagree with the majority's interpretation of Tanner and of AS 12.55.027(d), I
respectfully dissent.
The term "rehabilitative activity" is not defined in AS 12.55.027 or
elsewhere in Title 12. In Tanner, Judge Mannheimer looked to a dictionary definition
of the term "rehabilitate," which defined it as "'to prepare . . . an inmate . . . for useful
1 See generally Tanner v. State, 436 P.3d 1061 (Alaska App. 2018).
2 AS 12.55.027(d).
3 Tanner, 436 P.3d at 1063-64.
- 13 - 2762
----------------------- Page 14-----------------------
4
employment or successful integration into society by counseling, training, etc.'" He
noted that "[m]ost people would not consider grocery shopping to constitute a form of
5
rehabilitative 'counseling' or 'training.'" He further noted that AS 12.55.027(d) refers
to "attending a rehabilitative activity," and stated that this "is a further indication that
the legislature was referring to defendants who enroll in scheduled sessions of
6
counseling or training." As the words "attend" or "attending" are commonly used in
this context, they refer to going to planned or scheduled activities. Judge Mannheimer
ended the majority analysis in Tanner by noting that "AS 12.55.027(d) specifies the
limited circumstances in which a defendant may be absent from their home and still get
sentencing credit for the time they spend on electronic monitoring[,]" and that "[t]his
limited list does not include passes that authorize a defendant to leave their home to run
7
personal errands."
I view the analysis set out in the majority opinion in Tanner as an
interpretation of what the term "rehabilitative activity" in AS 12.55.027(d)(3) means as
a matter of law, and as a categorical holding that grocery shopping does not fit within
this definition. I believe Tanner correctly interpreted AS 12.55.027. Although I agree
with my colleagues that it would make sense to allow pretrial defendants on electronic
monitoring the ability to briefly leave their home to obtain groceries without forfeiting
sentence credit, the current statute does not say that, and we have no warrant to
creatively interpret the statute to achieve a different result.
4 Id. at 1063 (quoting Webster's New World College Dictionary , at 1208 (4th ed.
2004)).
5 Id.
6 Id.
7 Id. at 1064.
- 14 - 2762
----------------------- Page 15-----------------------
As noted previously, the term "rehabilitative activity" is not statutorily
defined. In common usage, "rehabilitative" is used in several ways. We might refer to
physical therapy following shoulder or knee surgery as rehabilitative. Occupational
therapy for persons with disabilities or impairments might be referred to as
rehabilitative. And a third common usage is in the context of efforts to assist criminal
offenders change their lives and stop committing criminal offenses. It seems appropriate
that in a statute regarding sentence credit for criminal offenders, this third usage of the
term rehabilitative is the one at issue. So, it seems appropriate to examine how this
sense of the word is used in Alaska law in evaluating how the legislature was likely
using the term in AS 12.55.027(d)(3).
The Alaska Constitution provides in Article I, Section 12 that "[c]riminal
administration shall be based upon . . . the principle of reformation." The Alaska
Supreme Court has held that this language does not merely specify a policy preference
8
but rather creates a fundamental state constitutional right to rehabilitation. But neither
the supreme court nor this Court have set out an exclusive or all-encompassing
definition of the words "reformation" or "rehabilitation." However, the supreme court
has applied these terms any number of times, and it is possible to reasonably define the
terms from those applications.
In State v. Chaney, the court held that one of the objectives of Article I,
9
Section 12 is "rehabilitation of the offender into a noncriminal member of society."
Rehabilitation, then, involves modification of the offender's criminal tendencies. The
court further noted in Goodlataw v. State, Dep't of Health & Soc. Services that
"[r]ehabilitation implies a therapeutic program of working over a period of time to
8 Abraham v. State , 585 P.2d 526, 530, 533 (Alaska 1978) (quoting McGinnis v.
Stevens, 543 P.2d 1221, 1236 n.45 (Alaska 1975)).
9 State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
- 15 - 2762
----------------------- Page 16-----------------------
correct a complex problem."10 Rehabilitation would include, for example, sex offender
treatment in the case of a sex offender, to address the direct cause of the offender's
crime.
The supreme court has also noted that criminal defendants often have
problems, such as drug and alcohol abuse, which, while not necessarily the direct cause
of a particular crime they committed, nonetheless contribute substantially to their
commission of offenses and entanglement in a criminal lifestyle. The supreme court has
thus held that the right to rehabilitation for such individuals includes the right to alcohol
and substance abuse treatment.11 Similarly, many persons are impelled into a life of
crime because of a lack of job skills or education, and the supreme court has held that
programs such as the Alaska Correctional Industries program, which attempt to remedy
such deficiencies in terms of job skills and education, are "rehabilitative" within the
constitutional sense of the word.12 And, as the supreme court recently encapsulated the
meaning of Alaska's state constitutional right to rehabilitation in the context of defining
a formal rehabilitative program, "a rehabilitative program is one designed to address
the factors that may lead to criminal behavior, such as addiction, lack of remunerative
skills, lack of education, or deviant proclivities."13
10 Goodlataw v. State, Dep't of Health & Soc. Services, 698 P.2d 1190, 1193 (Alaska
1985) (emphasis omitted).
11 Abraham , 585 P.2d at 533; see also Waters v. State, 483 P.2d 199, 202 (Alaska
1971); Huff v. State, 568 P.2d 1014, 1020 (Alaska 1977); Parks v. State, 571 P.2d 1003,
1006 (Alaska 1977).
12 See Ferguson v. State, Dep't of Corr., 816 P.2d 134, 139-40 (Alaska 1991). By
contrast, in Hays v. State , 830 P.2d 783, 785 (Alaska 1992), the supreme court held that
"transfer from one prison employment position to another" did not interfere with the right
to rehabilitation.
13 State, Dep't of Corr. v. Stefano, 516 P.3d 486, 494-95 (Alaska 2022).
- 16 - 2762
----------------------- Page 17-----------------------
To be sure, the supreme court has declined to endorse any formula as the
sine qua non of what makes something "rehabilitative" within the meaning of Alaska
Constitution Article I, Section 12. In Brandon v. State, Dep't of Corr. , the State argued
that an inmate's interest in receiving visitation was not rehabilitative within the meaning
of Article I, Section 12 because it did not involve a formal program designed to address
root causes of criminal behavior, such that transfer to an out-of-state prison did not
implicate the inmate's state constitutional right to rehabilitation.14 The supreme court
disagreed, citing a prisoners' rights treatise for the proposition that "[n]o single factor
has been proven to be more directly correlated with the objective of a crime-free return
to society than visiting."15
Justice Rabinowitz dissented, agreeing with the State's interpretation of
the above-cited cases as "defin[ing] the constitutional right to rehabilitation as a
guarantee of access to a formal program addressed to the specific problems that
impelled the prisoner's antisocial conduct" and stating that "[v]isitation does not qualify
as the type of therapeutic program for adult prisoners to which the constitutional right
to rehabilitation attaches."16 His attempt to cabin the meaning of "rehabilitation" to the
context of formal programs was unsuccessful, but the supreme court's more recent
discussion in State, Dep't of Corr. v. Stefano nonetheless illustrates that the right to
rehabilitation finds its primary expression in the context of formal rehabilitative
programming.17
14 Brandon v. State, Dep't of Corr., Supreme Court File No. S-06983, Appellee's Brief
at 25-29.
15 Brandon v. State, Dep't of Corr. , 938 P.2d 1029, 1032 n.2 (Alaska 1997) (citing 2
Michael Mushlin, Rights of Prisoners § 12.00 (2d ed. 1993)).
16 Id. at 1034 (Rabinowitz, J., dissenting).
17 Stefano, 516 P.3d at 491-94 (surveying Alaska cases).
- 17 - 2762
----------------------- Page 18-----------------------
The legislature, in using the term "rehabilitative" in AS 12.55.027(d)(3),
was not required to use the term in the more expansive sense used by the Brandon
majority with respect to the state constitutional right to rehabilitation, and was free to
use the term in the more common use seen in the bulk of Alaska cases described above.
I agree with Tanner that the use of the words "attending" and "activity" reinforce the
view that the legislature adopted this interpretation of "rehabilitative activity." One
"attends" things that are planned or scheduled, and "activity" bears this connotation.
The last point worth noting is the legislature's change from the use of the
word "counseling" to "rehabilitative activity." An early draft of the bill described the
last type of permissible absence from home confinement as "attending a counseling or
medical appointment," but this was changed to "attending a rehabilitative activity or
medical appointment."18 The legislative history concerning the change in terms is
sparse, but it can be inferred from context. One reason for the change in terms was that
the term "counseling" was vague and untethered from addressing the root causes of
criminal behavior. Indeed, in testifying regarding the Department of Law's concerns
with the proposed legislation, Deputy Attorney General Richard Svobodny noted that
under previous Alaska statutes related to sentence credit, people had sought credit for
time spent attending WeightWatchers 's meetings, and he expressed the concern that
allowing credit for time spent attending "counseling" would permit such credit.19
The other reason for the change was that "counseling" would likely
encompass only one-on-one counseling or group therapy, but there are additional
practices that take place within rehabilitative programs, specifically those that a pretrial
defendant might be enrolled in, that do not fit within the rubric of "counseling" and that
18 Compare H.B. 15, 29th Leg., 1st Sess. (as introduced, Mar. 18, 2015), with
AS 12.55.027(d)(3).
19 Audio of House Judiciary Comm., House Bill 15, testimony of Deputy Attorney
General Richard Svobodny, 1:20:30-1:21:00 p.m. (Mar. 23, 2015).
- 18 - 2762
----------------------- Page 19-----------------------
might more properly be viewed as an "activity." Specifically, a number of statutes
regarding bail conditions for various types of offenders require the person to participate
in drug or alcohol treatment, which require weekly in-person appearances and drug or
alcohol testing.20
For these reasons, I conclude that the term "rehabilitative activity" in
AS 12.55.027(d)(3) does not include grocery shopping, and I do not believe that trial
courts can determine that it does on an individualized basis. I agree with my colleagues'
basic policy concerns and conclude that the legislature should consider amending the
statute so that people can obtain necessities and still receive credit for electronic
monitoring.
20 See, e.g., AS 12.30.011(b)(21); AS 12.30.016(b)(6)-(7), (c)(7); AS 47.38.020.
Persons awaiting trial who have been the subject of a domestic violence restraining order
may also be ordered to participate in programs governed by AS 47.28.020. See
AS 18.66.100(c)(15).
- 19 - 2762
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