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McKinley v. State (5/4/2012) ap-2357

McKinley v. State (5/4/2012) ap-2357

                                               NOTICE
 

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        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                               303 K Street, Anchorage, Alaska  99501
 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



BOBBY McKINLEY, 				)
                                                )            Court of Appeals No. A-10790 
                                Appellant,      )          Trial Court No. 3AN-08-8797 Cr 
						)
                        v.			) 
                                                )                   O    P  I  N  I  O  N 
STATE OF ALASKA,				) 



                                Appellee.                      No. 2357    -   May 4, 2012 



                Appeal     from   the   Superior   Court,    Third   Judicial   District, 

                Anchorage, Jack W. Smith, Judge. 



                Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. 

                Ann B. Black, Assistant Attorney General, Office of Special 

                Prosecutions     and   Appeals,    Anchorage,    and   John   J.  Burns, 

                Attorney General, Juneau, for the Appellee. 



                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 

                Judges. 



                MANNHEIMER, Judge. 



                Under AS 12.55.025(c), a sentencing judge must give a defendant credit 



against their sentence for time spent in custody pending their trial, sentencing, or appeal. 



In Nygren v. State , 658 P.2d 141 (Alaska App. 1983), we interpreted this statute as 



requiring   a   court   to   give   a   defendant   credit   for   time   spent   in   non-prison   residential 



treatment, if the defendant "is subjected to restrictions approximating those experienced 


----------------------- Page 2-----------------------

by one who is incarcerated."  Id. at 146.  We also set forth the criteria that a court should 



consider   when   assessing   whether   a   defendant's   residence   at   a   facility   qualified   as 



"custody" for purposes of AS 12.55.025(c).  Ibid . 



                 The Nygren line of cases governed this aspect of Alaska law for close to a 



quarter-century. Then, in 2007, the legislature enacted a new statute, AS 12.55.027, that 



defines the situations in which defendants are entitled to credit against their sentences for 



time spent in these non-prison residential settings. 



                 The   question   presented   in   this   appeal   is   whether   this   statute   should   be 



interpreted in accordance with its wording, or whether the statute should be interpreted 



more broadly than its wording suggests, so that defendants would continue to receive 



credit against their sentences under the more liberal rule established in the Nygren line 



of cases. 



                 For the reasons explained here, we conclude that the statute should be 



interpreted in accordance with its wording, even though the statute may impose a more 



restrictive rule than is found in the Nygren line of cases. 



         Underlying facts 



                 The defendant in this case, Bobby McKinley, was charged with first-degree 



vehicle theft and second-degree theft.           While he was awaiting trial on these charges, as 



a condition of McKinley's bail, the superior court required him to enter a residential 



treatment   facility   -   the   Salvation   Army's   adult   rehabilitation   program.        McKinley 



entered the Salvation Army program on December 4, 2008, and he stayed there for five 



months, until he was discharged on May 3, 2009. 



                 In   April   of   the   following   year   (2010),   McKinley's   criminal   case   was 



resolved:    he pleaded guilty to the vehicle theft charge, and he received a sentence of 



                                                   - 2 -                                              2357
 


----------------------- Page 3-----------------------

60 months' imprisonment with 42 months suspended (i.e., 18 months to serve).  On the 



same day that he received this sentence, McKinley filed a motion asking the superior 



court to give him 5 months' credit against this sentence for the time he spent in the 



Salvation Army residential program. 



                 Superior Court Judge Jack W. Smith concluded that McKinley's motion 



was   governed   by   the   provisions   of   AS   12.55.027,   and   that   the   question   of   whether 



McKinley was entitled to credit against his sentence hinged on whether the Salvation 



Army treatment program satisfied the requirements set forth in AS 12.55.027(c). 



                 During the litigation of this question, the primary issue was whether the 



Salvation Army program met the requirement set forth in subsection (c)(2) of the statute 



-   that   participants   in   the   program   "be   confined   at   all   times   to   the   grounds   of   the 



facility[,] or be in the physical custody of an employee of the facility, except for court 



appearances, meetings with counsel, and work required by the treatment program and 



approved in advance by the court". 



                 The   Salvation   Army's   director   of   rehabilitation   services,   Dean   Bundy, 



submitted   a   lengthy   letter   describing   the   program,   and   he   later   supplemented   this 



description with testimony.         Based on Mr. Bundy's description of the operation of the 



program, Judge Smith concluded that McKinley was entitled to only 30 days' credit 



against his sentence, not 5 months. 



                 According to Bundy's letter and testimony, the Salvation Army program 



has six phases of treatment, each with differing levels of restriction on the activities of 



the   participants.     During     the   first  phase   of  treatment,    participants    are  essentially 



forbidden      from   leaving    the  facility.   However,      beginning     with   the  second    phase, 



participants are allowed more freedom.   In particular, second-phase participants can be 



granted "therapeutic" passes to attend outside treatment and counseling sessions such as 



those   offered   by   AA   or   NA   (Narcotics   Anonymous).         In   fact,   the   Salvation   Army 



                                                   - 3 -                                              2357
 


----------------------- Page 4-----------------------

requires participants to attend AA / NA community-based sessions, a minimum of twice 



per week. 



                 In   addition,   beginning   with   the   second   phase,   participants   can   receive 



"buddy" passes that allow them to leave the facility for up to three hours (on weekends, 



up to six hours) in the company of another, more senior program participant.  Beginning 



with the fourth phase, participants are eligible for overnight family visit passes twice per 



month.  And in the sixth phase, participants are eligible for 24-hour therapeutic sponsor 



passes or family passes, up to twice per month on alternate weekends. 



                 Based   on   the   fact   that   participants   in   the   Salvation   Army   program   are 



permitted to leave the facility without staff supervision beginning with the second phase 



of   their   treatment,   Judge   Smith   concluded   that   only   the   first   phase   of   the   Salvation 



Army's program satisfied the requirements of AS 12.55.027(c)(2). Accordingly, he gave 



McKinley credit against his sentence for this first phase only - a total of 30 days. 



                 Judge Smith noted that the requirements of subsection 027(c)(2) were more 



restrictive than the Nygren line of cases. Under Nygren , a defendant might receive credit 



against     their   sentence    even    though     the   defendant's     treatment     program      granted 



participants   unsupervised   absences   -   as   long   as   those   absences   were   of   specified 



duration and for specified purposes.            See Nygren v. State , 658 P.2d 141, 146 (Alaska 



App. 1983) (stating that one of the criteria of a qualifying residential program was that 



"any   periods   during   which   residents   [are]   permitted   to   leave   the   facility   [must   be] 



expressly limited, both as to time and purpose"). 



                 (We     applied    this  rule   in Potter    v.  State ,  unpublished,      Alaska    App. 



Memorandum Opinion 4569 (May 1, 2002), 2002 WL 818059.  In Potter , we held that 



the defendant was entitled to credit against his sentence for time spent at the Cordova 



Community Residential Center, even though he was permitted various unsupervised 



absences from the facility.         We noted that Potter "could leave the facility only with 



                                                   - 4 -                                               2357
 


----------------------- Page 5-----------------------

authorization", and that he "was required to travel directly to and from an approved 



location."  Id. at *2.) 



                Judge Smith also indicated that he believed that AS 12.55.027(c) was so 



restrictive that it defeated some of the policies it was intended to promote.             The judge 



explained: 



                        The     Court:    [O]ne    of   the   underlying     goals   of 

                incarceration is rehabilitation, [and] it is essential to foster a 

                system     that  provides   opportunities    for  drug   and   alcohol 

                treatment, life skills training, and education. 



                        The reality is that the prisons and jails ... provide few 

                opportunities for inmates to better themselves and their future 

                quality of life.   [On the other hand], programs such as [the 

                Salvation Army program], Akeela House, etc., are designed 

                to   provide   treatment    and   support   for  every    step  of  the 

                rehabilitation process. 



                        [Because      AS   12.55.027(c)      forces]   defendants    to 

                choose between [staying in] prison and receiving credit for 

                time served, and going to a treatment program where they 

                will   not  receive   credit,   [this]  creates  a  disincentive    for 

                seeking necessary treatment. 



                        ... [A]lthough [the Salvation Army program allows] 

                opportunities for   unsupervised leave, it also imposes rigid 

                restrictions on participants:     hourly bed checks, significant 

                time   confined    to  the  facility,  daily  drug   tests,  hours   of 

                required classes[.]    [It also offers] programs including, but 

                not limited to, drug and alcohol treatment, GED, fatherhood 

                [training], anger management, and spirituality training. 



                Nevertheless, Judge Smith concluded that he was required to apply the 



statute as written, and that McKinley was therefore not entitled to credit against his 



                                                - 5 -                                            2357
 


----------------------- Page 6-----------------------

sentence for the second and subsequent phases of his residence at the Salvation Army 



program   -   because,   during   those   phases   of   his   treatment,   McKinley   was   granted 



unsupervised absences from the facility for various purposes. 



                Accordingly, Judge Smith granted McKinley credit against his sentence for 



the 30 days he spent in the first phase of the Salvation Army's program, but the judge 



denied McKinley credit for the second and subsequent phases (the remaining 121 days). 



        The legislative history of AS 12.55.027 



                AS 12.55.027 began life as section 6 of the House Judiciary Committee's 



Substitute for House Bill 90 (25th Legislature).             Although this bill was sponsored by 



Representative Ralph Samuels, portions of the bill were drafted by the Department of 

Law. 1   Rep. Samuels introduced a representative of the Department, Assistant Attorney 



General   Anne   Carpeneti,   who   proceeded         to   describe   the   proposed   bill   section  by 

section. 2 



                In her remarks to the Committee, Ms. Carpeneti explained that section 6 of 



the bill - the portion that ultimately became AS 12.55.027 - "would enact standards 



that the courts must follow [when] deciding ... whether to give credit against a term of 

imprisonment   for   time   spent   in   a   treatment   facility". 3 According   to   Carpeneti,   the 



standards     proposed    in  section   6  of   the  bill   "follow[ed]  decisional    law  to  a  great 

degree". 4 



    1   Minutes of the House Judiciary Committee for April 10, 2007 @ 1:13:33. 



    2   Minutes, House Judiciary Committee, April 10, 2007 @ 1:11:26. 



    3   Id. @ 1:26:34. 



    4   Ibid. 



                                                 - 6 -                                              2357 


----------------------- Page 7-----------------------

                Carpeneti explained that the Department of Law's rationale for proposing 



this   statute   was   to   make   sure   that   "judges   throughout   the   state   [were]   reasonably 

consistent   when   granting   credit   against   a     term   of   imprisonment". 5     According   to 



Carpeneti, the standards set forth in section 6 "pretty much mirror[ed] what the courts 

have [already] set out in Nygren". 6 



                However, under the version of the bill that the Department of Law was 



proposing, a defendant would not receive credit against their sentence for participation 



in a residential treatment program unless the defendant was "confined at all times to the 



grounds      of  the  facility  or  [was]    in  the  physical    custody    of  an  employee      of  the 

facility". 7  As we explain later in this opinion, this provision was more restrictive than 



the Nygren line of cases. 



                When Committee Chair Jay Ramras suggested that the bill's criteria for 



treatment     programs      were   "too   specific",   given    the  treatment     programs     currently 



available, Ms. Carpeneti responded that the proposed bill would not limit a sentencing 



court's     authority    to  "fashion    the   [defendant's]     sentence     based    on   a  particular 

program". 8 



                This response was technically true, but not responsive to Representative 



Ramras's concerns.  The proposed bill did not deal with a judge's sentencing authority. 



Rather, it dealt with the question of whether defendants would receive credit against their 



sentences for the time they spent at a residential treatment program to which they were 



committed as a condition of release. 



    5   Ibid. 



    6   Ibid. 



    7   Ibid. 



    8   Ibid. 



                                                  - 7 -                                               2357 


----------------------- Page 8-----------------------

                 When Rep. Ramras continued to express reservations about the content of 



the proposal, Carpeneti assured him that the proposed statute "merely reflect[ed] past 

court rulings". 9 



                 Steve    Christopher,      chief   operations     manager     of   Alaska    Monitoring 



Services, suggested that the wording of subsection (c)(2) would be counter-productive, 



because it would require the employees of a treatment program to personally escort 

defendants whenever they left the facility for any purpose. 10  Mr. Christopher noted that 



many   treatment   programs   currently   allowed   defendants   to   work   in   the   community 

without an escort. 11  Rep. Samuels responded that, according to the statistics he had seen, 



treatment   programs   made   no   difference   to   recidivism   rates   -   and   he   observed   that 

"[people] who are in jail are not committing crimes while [they are] there". 12 



                 Rep. Ramras then asked Christopher if the language of subsection (c)(2) - 



that is, the requirement that program participants never leave the grounds of the facility 



unless they were personally supervised by a staff member - would affect the operation 



of the halfway house in Fairbanks.  Christopher said that he did not know, but he pointed 



out that the halfway house currently did not have enough staff to escort all of its clients 



whenever   they   went   out   into   the   community,   as   would   be   required   by   subsection 

(c)(2). 13 



                 Quinlan Steiner, the Director of the Public Defender Agency, added that 



subsection (c)(2) - the requirement that a defendant be in the physical custody of a staff 



    9   Id. @ 1:33:11. 
 



    10  Id. @ 2:17:46. 
 



    11  Ibid.
 



    12  Ibid.
 



    13  Ibid.
 



                                                   - 8 -                                              2357
 


----------------------- Page 9-----------------------

member whenever the defendant was not within the grounds of the facility - might 



make   it   unreasonably   difficult   for   a   defendant   to   visit   their   attorney   or   attend   court 

hearings, due to a lack of sufficient staff. 14         Joshua Fink, the Director of the Office of 



Public   Advocacy,   added   that   subsection   (c)(2)   would   create   a   similar   difficulty   for 



participants in the Salvation Army's treatment program, because that program required 

participants to have a job. 15       He urged the Committee to contact the various treatment 



providers   to   find   out   what   types   of   out-of-facility   activities   were   required   by   their 



                          16 

treatment programs. 



                 Three days later, during the Judiciary Committee's continued hearing on 



HB 90, Rep. Samuels offered an amendment to subsection (c)(2) which made exceptions 



to the rule that defendants had to be personally supervised by staff whenever they left the 



grounds of the facility.  Under this amendment, defendants would have to be "confined 



at all times to the grounds of the facility or be in the physical custody of an employee of 

the facility, except for court appearances or meetings with counsel". 17 This amendment 



was approved without objection. 18 



                 Apparently prompted by this amendment to subsection (c)(2), Rep. Ramras 



offered an additional amendment that would allow a treatment program to qualify for 



later credit against a defendant's sentence even if the defendant was allowed to leave the 



facility grounds unsupervised, as long as the absence was for the purpose of "work or 



    14  Id. @ 2:41:36. 



    15  Id. at 2:57:24. 



    16  Ibid. 



    17  Minutes of the House Judiciary Committee for April 13, 2007 @ 2:19:00. 



    18  Ibid. 



                                                    - 9 -                                               2357
 


----------------------- Page 10-----------------------

traveling to or from work". 19       Rep. Ramras explained that his amendment was intended 



to   cover    defendants     who    participated     in  treatment    programs      that  required    their 

participants to work as part of the treatment. 20 



                Ms.   Carpeneti   spoke   against   this   proposed   amendment.           She   told   the 



Committee that the Department of Law's position was that Nygren credit (i.e., credit 



against a defendant's sentence of imprisonment) was supposed to be awarded only for 



treatment programs that were similar to incarceration - and that any treatment program 



which allowed participants to leave the facility, unsupervised, in order to work was not 



"similar to incarceration".  Thus, Carpeneti argued, defendants should not receive credit 



against their sentences for time spent at a treatment program if that program allowed 

them to leave the facility grounds, unsupervised, to engage in employment. 21 



                Although       Carpeneti's      remarks     may     have    accurately     reflected    the 



Department       of  Law's     position   on   this  issue,  Carpeneti     failed  to  explain    that  the 



Department's position was at odds with the existing Nygren case law. 



                 In State v. Fortuny, 42 P.3d 1147, 1150-52 (Alaska App.  2002), this Court 



rejected the State's argument that a defendant should be deemed ineligible for Nygren 



credit   because   his   residential   treatment   program   allowed   him   to   be   absent   from   the 



facility, sometimes for up to fifty hours a week, to engage in employment.  In Fortuny , 



we noted that the clinical staff at the defendant's treatment program "view[ed] work 



release as part of the treatment regimen", id. at 1151, and we held that the defendant 



"should receive full credit for the days he resided at [the residential treatment program] 



    19  Id. @ 2:23:08. 



    20  Ibid. 



    21  Ibid. 



                                                  - 10 -                                               2357 


----------------------- Page 11-----------------------

under court order, even [though] he was authorized to spend many hours away from the 



treatment facility on work release."  Id. at 1152. 



                After Carpeneti spoke against giving Nygren credit to defendants whose 



treatment     programs     allowed    them   to  leave  the   facility  to  engage   in  employment, 



Representative       Max    Gruenberg     offered    a  compromise      amendment.       Under     Rep. 



Gruenberg's proposal, a treatment program would qualify for credit against a defendant's 



sentence,   even   if   defendants   were   allowed   unsupervised   absences   from   the   facility 



grounds for employment purposes, but only if the defendant's work "[was] part of the 

treatment program and [was] specifically approved by the court." 22 



                Rep.   Ramras   then   repeated   his   support   for   this   concept.   He   told   the 



Committee that he knew of a situation where a young offender attended and successfully 



completed a treatment program, and he wondered what the young offender would have 



done if the treatment program had contained a work component - specifically, what the 



young offender would have done if she had known that, by complying with the work 



component of the program, she would thereby forfeit the credit against her sentence. 



Rep. Ramras urged the Committee not to "restrict [treatment alternatives] that will help 

people become productive members of society". 23 



                Shortly afterwards, Representative Lindsey Holmes told the Committee that 

Mr. Steiner had handed her proposed wording for a revised subsection (c)(2). 24                 Under 



this proposal, (c)(2) would state that defendants participating in qualifying treatment 



programs 



    22  Id. @ 2:27:28. 



    23  Ibid. 



    24  Id. @ 2:30:39. 



                                                - 11 -                                              2357 


----------------------- Page 12-----------------------

                 must be confined at all times to the grounds of the facility or 

                 be   in   the   physical   custody   of   an   employee   of   the   facility, 

                 except for court appearances, meetings with counsel, and for 

                 work as required by the treatment program[.] 25 



                 Rep. Samuels spoke in opposition to this proposal.                 Echoing Carpeneti's 



earlier comments, Rep. Samuels argued that if a person was able to work off-site while 



attending a treatment program, this "[was] not like being in jail", and people in this 

situation should not receive credit against their sentence. 26 



                 Rep. Gruenberg then renewed his proposal for the compromise language, 



"unless the person is at work or traveling to or from work as required by the treatment 

program and as specifically approved by the court". 27                There was no objection to Rep. 



Gruenberg's proposal, and it was adopted. 28 



                 A few minutes later, House Bill 90 (as just amended) was passed out of the 

Judiciary Committee. 29        Section 6 of this bill - the provision that engendered so much 



debate   -     was   ultimately   enacted   as   SLA      2007,   chapter   24,      20,   and   it   became 



AS 12.55.027. 



                 The final version of AS 12.55.027(c)(2) contains the language that was 



hammered out in the House Judiciary Committee: 



                         (c)   To    qualify     for  credit    against    a  sentence     of 

                 imprisonment   for   time   spent   in   a   treatment   program,   the 



    25  Ibid . 



    26  Ibid. 



    27  Ibid. 



    28  Ibid. 



    29  Id. @ 2:37:56. 



                                                   -  12 -                                              2357
 


----------------------- Page 13-----------------------

                 treatment       program      ...  must   impose     ...  restrictions    on   a 

                 person's      liberty    [which     include]    the   requirement       that  a 

                 participant in the program 

                          .   .  . 



                                   (2) must be confined at all times to the grounds 

                          of the facility[,] or be in the physical custody of an 

                          employee of the facility, except for court appearances, 

                          meetings       with   counsel,     and   work    required     by   the 

                          treatment   program   and   approved   in   advance   by   the 

                          court[.] 



                 Now that we have described this legislative history, we turn to McKinley's 



argument on appeal. 



         McKinley's argument on appeal 



                 Although   McKinley   asked   Judge   Smith   to   give   him   credit   against   his 



sentence   for   the   151     days   he   spent   in   the   Salvation    Army's   residential   treatment 



program, Judge Smith gave McKinley only 30 days' credit - the 30 days that McKinley 



spent in phase one of the Salvation Army program. 



                 As we have explained, Judge Smith's decision was based on the wording 



of AS 12.55.027(c)(2).          Under this subsection of the statute, a treatment program does 



not qualify for sentencing credit if the program allows unsupervised absences from the 



facility   for   any   purpose   except   the   three   purposes   specified:          "court   appearances, 



meetings with counsel, and work required by the treatment program and approved in 



advance by the court". 



                 McKinley argues that, despite its wording, subsection (c)(2) was intended 



to   allow   other types of unsupervised   absences.               McKinley   points out   that   Assistant 



Attorney General Carpeneti repeatedly told the House Judiciary Committee that the 



                                                     -  13 -                                               2357
 


----------------------- Page 14-----------------------

statute was intended to codify the Nygren line of cases - that the standards set forth in 



the statute "pretty much mirror[ed] what the courts have [already] set out in Nygren", and 



that the statute "merely reflect[ed] past court rulings". 



                 As   we   explained   earlier,   under   the  Nygren      line   of   cases,   a   treatment 



program will qualify for Nygren credit even if program residents are allowed to leave the 



facility without immediate personal supervision, so long as "[the] periods during which 



residents [are] permitted to leave the facility are expressly limited, both as to time and 



purpose". Nygren , 658 P.2d at 146; see also Fortuny , 42 P.3d at 1151-52. Based on this, 



McKinley   suggests   that   we   should   interpret   subsection   (c)(2),   not   according   to   its 



wording, but according to the Nygren rule. 



                 But   even   if   the   Department   of   Law   was   mistaken   in   telling   the   House 



Judiciary Committee that their proposed statute was simply a codification of the Nygren 



rule, this does not mean that we can disregard the wording of the statute and continue to 



apply the Nygren rule.  The true question here is whether that the Department of Law's 



description   of   the   proposed   statute   misled   the   Committee   as   to   the   meaning   of   the 



language contained in subsection (c)(2) of the statute. And the record of the proceedings 



in front of the Judiciary Committee - in particular, the debate over the precise wording 



of subsection (c)(2) - demonstrates that the Committee members fully understood the 



restrictions they were placing on the types of treatment programs that would qualify for 



sentencing credit. 



                 As we have explained, the Department of Law's original proposal was that 



no unsupervised absences would be allowed - and everyone understood the provision 



to mean exactly that. 



                 Various members of the Judiciary Committee, as well as various people 



testifying in front of the Committee, criticized this approach on the ground that (1) there 



were   valid   reasons   for   allowing     program     participants   to   leave   the   grounds   of   the 



                                                  -  14 -                                             2357
 


----------------------- Page 15-----------------------

treatment facility, and (2) treatment programs simply did not have sufficient numbers of 



staff to satisfy the requirement that every off-facility activity be personally supervised 



by a staff member. 



                To answer these concerns, the Committee first amended the Department of 



Law's wording to allow unsupervised absences for court hearings and meetings with 



attorneys.   Then some Committee members argued in favor of expanding the language 



again, this time to include absences for off-site work, because many treatment programs 



had work components.          The Committee finally reached a compromise solution on this 



issue - allowing unsupervised absences for work, but only if the treatment program 



required the work, and only if the sentencing court approved it. 



                In other words, even though the final version of subsection (c)(2) is more 



restrictive than the Nygren rule it superseded, and even though the Committee members 



might not have understood that they were changing the law, it is clear that the Committee 



members understood the meaning of subsection (c)(2) - specifically, that unsupervised 



absences   from   treatment   programs   would   be   strictly   limited   to   the   three   purposes 



specified in the statute. 



                As Judge Smith noted when he issued his decision, there may be good 



reasons to allow other types of unsupervised absences from treatment programs.  As the 



judge observed, one of the underlying goals of penal administration is the rehabilitation 



of   offenders    -   and,   to  achieve   this  goal,  it  would   doubtless    be  better  to  foster 



opportunities for drug and alcohol treatment, education, and training in life skills. 



                It is unrealistic to expect that every treatment program will have the funding 



and the trained personnel to offer all of these opportunities to its residents.   And it may 



be unrealistic to expect that every treatment program will be able to hire a sufficient 



number of staff to personally supervise every resident who wishes to take advantage of 



off-site opportunities for treatment, education, and training. 



                                                -  15 -                                          2357
 


----------------------- Page 16-----------------------

                But whether to expand the scope of allowed unsupervised absences under 



AS 12.55.027(c)(2) is a matter of policy - and, therefore, the decision is up to the 



legislature,   not   the   judiciary. It   was   Judge   Smith's   duty   to   apply   the   statute   as   the 



legislature intended.  And the legislative history of AS 12.55.027 makes it clear that the 



rule intended by the legislature is not as broad as the rule contained in the Nygren line 



of cases. 



        Conclusion 



                The judgement of the superior court is AFFIRMED. 



                                                 -  16 -                                            2357
 

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AWAIC