Legislature(2005 - 2006)BUTROVICH 205
01/18/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 56 | TELECONFERENCED | |
SB 56-CRIMINAL LAW/PROCEDURE/SENTENCING
8:37:44 AM
SENATOR THERRIAULT, prime sponsor of SB 56, told members that
Heather Brakes would give an overview of the bill and then DOL
and DOC would speak to specific sections of the bill.
MS. HEATHER BRAKES, staff to Senator Therriault, said SB 56 was
drafted in response to a U.S. Supreme Court ruling in June of
2004 that has affected Alaska's sentencing structure. Alaska's
presumptive sentencing scheme was developed in the 1970s. The
current system limits judicial discretion to a single definite
term unless the judge finds that aggravating or mitigating
factors exist, allowing for departure from the set term. In June
of 2004, the U.S. Supreme Court struck down the State of
Washington's sentencing structure, which is functionally
equivalent to Alaska's law, as unconstitutional. The court found
that under the Sixth Amendment, a defendant has the right to
have a jury, not the judge, determine whether aggravating
circumstances exist to justify increasing a sentence above the
statutorily prescribed term. The Blakely v. Washington decision
has created confusion for the Alaska Court System and other
states. SB 56 will make it easier for judges to consider all
factors in sentencing and to impose probation in all felony
cases. It will make probation supervision more effective by
giving police greater arrest authority over probationers. Chair
Seekins and Senator Therriault drafted SB 56 in conjunction with
DOL.
CHAIR SEEKINS disclosed that his son works for Ms. Parkes at DOL
as an assistant district attorney in Fairbanks.
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL), told members the Blakely decision has
created turmoil in several states. She appreciated the quick
introduction and hearing of SB 56. DOL believes SB 56 is a
balanced approach to the Blakely problem.
MS. PARKES gave the following history of Alaska's sentencing
scheme. Pre-1970, Alaska had open sentencing, which gave judges
wide-open discretion for sentencing. The legislature found a
large disparity among sentences for the same crime across the
state existed; therefore presumptive sentencing was introduced.
The legislature decided to create a presumptive sentence
presumed to be the appropriate sentence for the typical offender
committing the typical offense. The legislature wanted to
provide some flexibility to individualize sentences. That's
where the aggravators and mitigators came in. Judges make
findings on aggravators and mitigators by clear and convincing
evidence. The aggravators and mitigators are clearly defined in
statute and judges are not required to use them.
MS. PARKES told members the current system has worked well to
remove sentencing disparities. A 1999 felony sentencing study by
the Alaska Judicial Council found that all disparities in non-
presumptive ranges have decreased. DOL is proposing in SB 56 to
keep the best parts of the current system, do away with
disparity, provide judges with flexibility, and comply with
Blakely in a balanced way that will not eat up Alaska's criminal
justice resources.
8:44:49 AM
MS. PARKES referred to a chart and said that instead of one set
appropriate sentence, SB 56 proposes a range that a judge can
use without having to find aggravators or mitigators. Alaska's
presumptive scheme is fairly simple compared to other states; it
is based on one criterion - prior felony convictions. A sentence
can be increased for a sex felony with prior sex offenses, use
of a weapon, or for causing serious physical injury. Essentially
it is based on prior felonies. She described how to read the
chart; the bolded language is the range being proposed.
8:46:01 AM
MS. PARKES said that to go beyond the range, aggravators must be
noticed by the state and presented to a trial jury. The jury
must find aggravators beyond a reasonable doubt. The judge has
the discretion to impose an increased sentence.
Mitigation remains the same under SB 56 and Blakely. A judge
still has the discretion to make findings on mitigators with
clear and convincing evidence and decide whether to reduce the
sentence below the proposed presumptive range. DOL hopes to
maintain flexibility for the judge. Taking aggravators to a jury
trial will be more resource intensive. SB 56 will avoid the
grand jury requirement. Currently, to indict for a felony
offense in Alaska, one must go to a grand jury. One judge ruled
that aggravators must go to the grand jury as well. SB 56 only
requires notice to the defense before trial. A grand jury often
happens early in a case when aggravating factors are unknown.
8:48:34 AM
MS. PARKES said the next change pertains to the fact that
currently there are no presumptive sentences for first felony
offenders for B and C felonies, and only for people with priors
and for class As and unclassifieds. For uniformity, SB 56
proposes a presumptive range for people convicted of B or C
felonies without priors. Some people have expressed concern that
by creating these ranges, sentences will be increased across the
board. One concern is that judges will automatically go to the
top of the range. DOL proposed ranges starting at the current
presumptive level and going up because mitigation hasn't
changed. She has not had that experience with judges and that is
not DOL's intent. DOL's intent is to maintain the flexibility
that judges currently have in being able to increase sentences.
If that is of concern to the committee, DOL will work on intent
language that says it is not the legislature's intent to
increase sentences across the board but to maintain the current
system in a way that complies with Blakely.
8:50:48 AM
MS. PARKES said another highlight in the bill is an added
statutory aggravator in Sec. 19.
CHAIR SEEKINS specified that the committee is working on version
F.
MS. PARKES referred to page 15 and said that aggravator 31 is
based on a prior criminal history of misdemeanors. The question
is if the legislature decides to create presumptive sentences
for first felony offenders, should someone with no prior
felonies but a lengthy history of misdemeanors be treated
differently than someone with no prior criminal history at all.
Aggravator 31 recognizes that a lengthy criminal history is
defined as 5 or more class A misdemeanors and allows a judge to
aggravate the sentence if appropriate.
MS. PARKES described the other proposed changes as:
On section 2, page 2, regarding periodic sentencing -
currently judges can impose periodic sentencing, which
can be a nightmare for DOC, i.e., a one-year sentence
could be served on weekends only. This creates safety
and paperwork problems. In this section, the ability
to allow periodic sentencing would be limited to a
situation where a judge was authorized to order such
sentencing. It must be for an employment obligation
that pre-existed to sentencing and that will create
extreme hardship and prevent the defendant from paying
fines or restitution. Judges have been giving periodic
sentencing for employment, illnesses, funerals, or
births to the point where people come and go, creating
a hardship for DOC. The legislature may want to
restrict this provision further to sentences that are
of a certain length.
Section 6(a)(7) on page 4 - currently, judges often
delegate to probation officers the ability to impose
appropriate probation conditions as circumstances
change. Someone may be sentenced, do 3 or 4 years,
then be on probation. Circumstances can change
dramatically for that person once he/she is on parole.
Since the judge won't know the appropriate conditions,
he/she will delegate authority to a probation officer.
A recent Court of Appeals decision questioned whether
judges have legal authority to delegate. This
provision would codify that practice and allow judges
to have that flexibility. She deferred to Deputy
Commissioner Parker for further explanation.
The last substantive change is in Sections 26, 30, and 31 on
pages 19 and 23. A recent Court of Appeals opinion was issued in
Rickle v State. That case involved a situation during which the
City of Homer police officers were doing a bar check in Homer
and saw a felony DUI convict in a bar that was either on
probation or parole. They knew that person should not be in a
bar. The police officers detained the person, called his
probation officer and confirmed that he was on parole. They were
authorized to arrest the person for a parole violation and did a
pat down search, during which they found cocaine and arrested
him. The Court of Appeals found the police did not have the
authority to do an initial stop and detain to investigate. DOL
believes it is appropriate for a police department to
investigate possible parole violations. This change allows a
police department to stop if there is reasonable suspicion; if
probable cause of probation conditions exists, the police have
the authority to arrest that person.
8:58:43 AM
MS. PARKES said the Blakely problem required changes be made for
parole and probation, so those changes are addressed in this
bill.
CHAIR SEEKINS asked if Section 30 gives a parole officer without
a warrant the ability to also arrest a parolee for violation and
whether that exists now.
MS. PARKES said yes but it does not exist now for certain
violations.
8:59:33 AM
SENATOR THERRIAULT asked how the court would have the police
officer handle such a situation and whether the police officer
would just report to the parole officer that the person was in
the bar and let the system handle it.
MS. PARKES said yes. The court ruled the police could not detain
based only on the belief that the parolee should not have been
in a bar. The parole officer would have had to file a parole
violation and made an arrest at a later time.
9:00:12 AM
SENATOR THERRIAULT asked if the police had picked him up, would
they have to follow the same procedures for questioning anyone
and in the meantime check with the parole officer.
MS. PARKES said yes. Right now police officers must have
reasonable suspicion to stop and investigate. They would have to
follow the same procedures under the bill.
SENATOR THERRIAULT asked if the defendant would have the same
right to remain silent and request legal counsel.
MS. PARKES said absolutely.
9:01:00 AM
SENATOR GUESS said the opinions issued by the Supreme Court two
weeks ago on mandatory sentencing and guidelines are difficult
to understand. She asked if the mandatory sentencing provision
in SB 56 could conflict with the latest Supreme Court decision.
MS. PARKES said those decisions were very confusing. The Supreme
Court's FanFan-Booker decisions looked at the federal sentencing
guidelines and how Blakely affected them. That decision
consisted of 125-pages of majorities, dissents, joinings and
not-joinings. DOL does not believe that ruling affects SB 56.
The federal sentencing guidelines are significantly different
from the way Alaska's presumptive sentencing is set up. They are
much more complicated and require more factual findings from the
judge to get the defendant on the grid. For the most part,
Alaska's grid is based essentially on prior felony convictions.
The court is clear that the judge can still make that kind of a
finding. The factual findings beyond prior convictions require a
jury. She believes the upshot of the FanFan-Booker decisions
were that the federal guidelines would be voluntary. They
ordered judges to consult them but judges are not required to
follow them.
9:03:25 AM
SENATOR GUESS said Section 6 was described as codifying current
practice. She asked if any literacy/communication issues might
arise if new conditions are put on a probation officer when a
parolee is not English proficient.
MS. PARKES deferred to Deputy Commissioner Parker but said the
proposal indicates the additional condition be provided in
writing to the defendant. She presumed the probation officer
would talk to a defendant to make sure the conditions are clear.
She recognized that concern and explained that to enforce a new
condition, there must be a finding that the person clearly
understood it.
CHAIR SEEKINS asked Ms. Parkes to standby for future questions.
9:05:20 AM
MS. PORTIA PARKER, Deputy Commissioner, Department of
Corrections (DOC), said she would expand on sections that affect
the DOC. Periodic sentencing can be very problematic when
managing populations with overcrowded facilities. DOC is at 100
to 103 percent capacity all of the time. She is aware of two
cases where judges ordered periodic sentences to be served. In
one, a prisoner with a long sentence served the sentence on
weekends - for over one year the prisoner had to be discharged
every week. That process is costly and time consuming. The other
case involved a 7-year sentence. The prisoner was released
during the summers with no supervision. Long-term prisoners are
often sent to Arizona so prisoners have to be transported back
and forth when released. That creates a disparity among
sentences for other inmates. DOC sees philosophical and
logistical problems. Short prison sentences are not as much of a
problem because prisoners might spend their time in a halfway
house.
9:07:29 AM
MS. PARKER said in regard to Section 6 - the general condition
of probation - the number 12 condition is an extremely important
condition for probation officers to do their jobs effectively.
Number 12 is the delegation of some authority to a probation
officer by a judge. It preserves the current practice. This
condition has been used in Alaska and almost every other state
and jurisdiction. Generally, the court would order that the
probationer abide by any special instructions given by the court
or any of its duly authorized officers, including probation
officers of DOC. This allows the probation officer the
flexibility to respond to things as they come up - some common
occurrences are substance abuse issues not reported during the
sentencing phase. If those issues did not come up at sentencing,
the probation officer can intervene later and require treatment.
That avoids going back to court to request additional conditions
and keeps people out of prison. Returning to court would place a
huge burden on the court system. This would be used as an
intermediate sanction.
9:10:33 AM
SENATOR THERRIAULT asked Ms. Parker to read that language again.
MS. PARKER reads probation condition number 12, which refers to
delegating some authority to a probation officer by a judge:
Abide by any special instructions given by the court
or any of its duly authorized officers, including
probation officers of the Department of Corrections.
SENATOR THERRIAULT referred to Senator Guess's concern about
non-English speakers and asked Ms. Parker to suggest language to
make that clear.
MS. PARKER said a parole officer would make sure a non-English
speaking prisoner understands the conditions of probation or
parole. She offered to look into adding a provision to have the
person sign a statement saying he/she understands.
9:12:46 AM
MS. PARKER explained that Sections 26, 30, and 31 affect parole
by giving the police officer authority to stop and detain
someone who might be violating parole conditions, which is
important in smaller villages without probation offices. DOC has
statutory authority to work with VPSOs, who can serve as parole
agents. In those areas, DOC provides training. In larger cities,
law enforcement calls the on-duty supervisor and DOC works
collaboratively with law enforcement. DOC believes this will
improve the working relationship with law enforcement and
intervene to keep offenders from violating.
Sec. 29 codifies the current practice of the parole board by
making clear that the board has the authority to deny a prisoner
consideration for parole, once the board has considered
discretionary parole and the prisoner was denied release.
SENATOR HUGGINS asked if, regarding Arizona and periodic
imprisonment, prisoners sent to Arizona go back and forth to
Alaska.
MS. PARKER said DOC tries not to send prisoners with periodic
sentences to Arizona because of the increased transportation
costs. DOC tries to send only prisoners with long sentences to
Arizona, although DOC gets ordered by the court to transport
prisoners back for other reasons. She said although DOC tries to
keep prisoners with periodic sentences in the state, it puts
pressure on DOC's ability to move prisoners around, even within
the state.
9:16:32 AM
SENATOR THERRIAULT asked Ms. Parker to describe the specific
circumstances that led the court to allow the one prisoner with
a periodic sentence to be released during the summers.
MS. PARKER said the court released that prisoner to commercial
fish. She said she doesn't know how many of those types of cases
exist and the overall impact on the system. She noted those two
examples were in Juneau.
SENATOR THERRIAULT asked if that person had a 7-year sentence
and what the crime was.
MS. PARKER said she would find out.
9:17:33 AM
CHAIR SEEKINS asked if, under this proposal, the same commercial
fishing scenario could occur but more explanation would be
required and the process would be tougher.
MS. PARKER said yes, and DOC's concern is that if judges use
this to a greater extent, DOC would have a very serious problem
managing that population. She explained that serving time in
prison is a hardship on every inmate who has to serve time in
prison when it comes to supporting their families.
CHAIR SEEKINS said he is unaware of the extent of periodic
sentencing and asked if SB 56 would create a new cottage
industry in the sentencing process, i.e. requiring studies,
surveys, more lawyers, etc. He asked if the number of periodic
sentences is significant.
9:19:02 AM
MS. PARKER offered to find out.
CHAIR SEEKINS asked if DOC believes using periodic sentencing
for short sentences may be worthwhile.
MS. PARKER said DOC doesn't oppose periodic sentences for short
sentences of 60 to 90 days and noted that they are granted most
often. DOC doesn't oppose them for first time offenders either.
DOC's concern is imposing periodic sentences for felony
convictions or long-term sentences.
9:20:21 AM
CHAIR SEEKINS asked if DOC has a parameter it is comfortable
with.
MS. PARKER said for sentences of less than one year. DOC prefers
to have the authority to make decisions based on DOC's matrix.
DOC does not want to expand the use of periodic sentences but
understands why they are necessary at times.
CHAIR SEEKINS asked if SB 56 would eliminate a judge's ability
to use periodic sentences.
MS. PARKER believed the current language [allows periodic
sentences] for more than one year.
9:21:37 AM
CHAIR SEEKINS asked Ms. Parkes if this language fits within a
particular time parameter.
MS. PARKER said the draft does not limit the sentence length for
periodic sentencing. The current statute allows periodic
sentencing with no limits at all. The proposal limits it to
employment situations but not to certain sentences.
SENATOR THERRIAULT asked if the proposed language does not take
into consideration the hardship on the family. It says if the
system has imposed a requirement on the individual, the system
should not prevent the person from meeting that requirement.
MS. PARKES believed that was the intention.
SENATOR THERRIAULT said he would consider adding language to
differentiate between shorter and longer terms of imprisonment.
He added the general public would want those sentences to apply
only to crimes of lesser severity. With regard to economic
hardship, he said any person who gets himself thrown in jail
imposes an economic hardship on his family. A deterrent to crime
is the hardship one might impose on any relationships.
9:23:55 AM
CHAIR SEEKINS liked Senator Therriault's suggestion and asked
participants to work together to figure out a cut-off point. He
thought the embarassment factor could be as great as the
economic factor. He expressed concern that a large number of the
prisoners are indigent. The state arrests them, defends them,
houses them in prison and supports their families on welfare.
People need to be punished for crimes they commit but the state
needs to be cognizant of the cost. He said his concern is that
sentencing is effective in deterring crime.
SENATOR GUESS referred to Section 6 and asked if any history of
abuse by current probation officers exists and whether an
appeals process for additional conditions exists.
9:26:29 AM
MS. PARKER believed they could appeal to the court because the
court orders probationers to comply with certain conditions. She
said the conditions were challenged in court and appealed, which
is one reason for the current situation.
SENATOR GUESS asked if that is implied in the language.
MS. PARKER said that is correct.
SENATOR HUGGINS asked if Ms. Parker wants a cut-off of one year
for a periodic sentence.
MS. PARKER said yes and that DOC prefers the restriction for
employment only. In addition, the crime would have to be a
misdemeanor if the sentence is less than one year.
9:28:32 AM
SENATOR HUGGINS asked what the procedure is to revoke periodic
imprisonment.
MS. PARKER said a warrant would be issued. She said she would
have to look into how many times that happens.
SENATOR HUGGINS asked for the cost to DOC and the man hours
required. He expressed concern that revoking periodic sentences
is "turning DOC upside down."
MS. PARKER said that is not a big problem because those
prisoners have a good arrangement. If they violate the
arrangement, they will not get a periodic sentence.
9:30:09 AM
CHAIR SEEKINS noted that Lt. Todd Sharp was available to answer
questions.
MS. BARBARA BRINK, Public Defenders' Agency, informed members
she had been with the agency almost 23 years.
9:32:20 AM
MS. BRINK thanked DOL and DOC for consulting the Public
Defenders' Agency when drafting the bill. She traveled with
staff from DOC and DOL to a Denver "think tank" on sentencing.
She told members that SB 56 is a broad, sweeping fix to what
might not be a major problem and expressed concern about the
magnitude of changes it will make. In 2000, the U.S. Supreme
Court issued an opinion on Apprendy (ph), which says that any
fact that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proven beyond a
reasonable doubt. Blakely defined the maximum sentence as what a
judge can impose based on a jury verdict.
She said eight or nine states are in the same position as Alaska
and repeated that SB 56 is too broad for Alaska's purposes.
Alaska adopted presumptive sentencing in 1978 to create
uniformity in sentencing. A 1997 Supreme Court Advisory
Committee on Fairness and Access suggested that a study of
presumptive sentencing be undertaken. The Alaska Judicial
Council then issued its report, which said that presumptive
sentencing had been a success.
9:35:51 AM
MS. BRINK said the Alaska Judicial Council also found some
ethnic variations in drug sentences and variations depending on
gender, location in state, and whether a public or private
attorney represented the offender. She repeated that the remedy
in SB 56 is too broad if Alaska's goal is to maintain
uniformity. SB 56 proposes to increase the ranges for sentencing
so it increases the possibility for greater disparity. SB 56
satisfies the requirements of Apprendy and Blakely but too
broadly. Now any judge can sentence anyone to an aggravated
sentence without a finding of aggravators, specific facts, or
the right for a sentencing court to have that reviewed by
another court. She likened it to taking a chainsaw approach to a
problem that required a scalpel. The Alaska Judicial Council
estimated that aggravated sentences are applied to between 105
and 122 cases each year.
MS. BRINK suggested some alternative proposals. One would
provide the right of a jury trial. That would only affect cases
that are aggravated. That is not the most expedient way to
address the problem but sometimes expediency must take a back
seat to constitutional rights. She said the point of the Blakely
and Apprendy decisions was to increase the reliability in the
fact-finding process. A jury, not a judge, usually determines
facts. She read from the Supreme Court decision on Fan Fan-
Booker:
The framers of the Constitution wouldn't have thought
it too much to demand that before depriving a man of
10 more years of his liberty, the state should suffer
the modest inconvenience of submitting its accusations
to the unanimous suffrage of 12 of its equals and
neighbors rather than a lone employee of the state.
She said that by expanding the judicial ranges for presumptive
sentencing in this bill, she doubts any aggravators will come
before the trial judge. She questioned why the state would
bother trying to prove an aggravator if it could get 10 extra
years on a defendant without proving anything.
9:40:30 AM
MS. BRINK said her first point was that the bill is too broad,
considering the number of cases in Alaska. Her second point is
that the proposed range is huge compared to the goal of
uniformity. SB 56 will create lots of room for disparity. She
believes increasing the range will increase sentences and
pointed out that there is no range below the presumptive
sentence. She said another problem with the bill is that there
is no right to be indicted on an aggravator so that leaves open
the question of whether the grand jury also has to hear evidence
on the aggravators. She explained that before a person can be
held to trial on a felony case, the facts must be presented to a
grand jury, which is a one-sided proceeding. The grand jury is
to determine whether there is probable cause to believe a crime
was committed. She noted over 90 percent of cases do not go to
trial.
9:43:33 AM
MS. BRINK said 90 percent of cases don't go to trial, often
because of the certainty of what the client is facing. By
increasing the ranges, that certainty is eliminated. It will not
be helpful to plea-bargaining because there will be a huge range
the defendant will consider himself subject to. Often periodic
sentencing is used when a family member is terminally ill or
died and the offender's presence is necessary. She believes it
is beneficial to the state to allow periodic sentences to
proceed because strong family ties can be used to predict
success upon release.
9:46:04 AM
MS. BRINK said the state can use 31 aggravators and 16
mitigators. She then discussed burglary sentences.
Her most strenuous objection was Section 7 because a judge can
increase the sentence without having to find aggravators or make
specific findings. She gave a further explanation of objections
and said SB 56 will give too much discretion to judges.
She expressed the need for more judicial review of sentences if
the goal is uniformity.
9:49:08 AM
MS. BRINK said the committee could consider better remedies that
comply with the Sixth Amendment and preserve more determinate
sentencing models. At the Denver meeting she learned that 8 or 9
states have similar problems to Alaska with regard to the
Blakely decision. No one can agree on a remedy to comply.
Indiana is following the Kansas model. Ohio is letting the
courts sort out whether its procedures are compliant. The
Department of Justice recommended to its prosecutors that it
take aggravators before a grand jury. Minnesota has issued two
reports to its governor. SB 56 completely revises how sentencing
will occur in Alaska. She suggested establishing a sentencing
commission to look at disparity and what other states are doing.
9:51:47 AM
CHAIR SEEKINS announced a 5-minute at ease.
10:01:42 AM
CHAIR SEEKINS reconvened the meeting and opened the hearing to
questions for Ms. Brink.
SENATOR THERRIAULT asked for the total number of sentences that
were mitigated.
MS. BRINK said her statistics are from the Alaska Judicial
Council and it has more data from 99 felonies. She offered to
get the information and calculate the number.
SENATOR THERRIAULT wanted that information before going forward.
SENATOR HUGGINS asked about the detriments if aggravators were
not considered by the grand jury.
MS. BRINK said the point of the grand jury is to act as a safety
check. The second point of the grand jury is due process notice
of what witnesses say about the offender's conduct.
SENATOR THERRIAULT said the grand jury would still be required
to come up with the findings for the underlying case; this will
only avoid a grand jury hearing on the potential aggravators. He
could see a whole time continuum of charging someone on final
sentencing.
CHAIR SEEKINS asked what happens in the course of a trial if an
aggravating factor turns up.
MS. BRINK thought that was a legitimate concern for the state
because often aggravators don't turn up until later. Often, a
probation officer is not assigned or a pre-sentence report is
not written until after convicted. She noted in the federal
system, a lot of the investigative work happens on the front
end.
CHAIR SEEKINS expressed concern that requiring a grand jury
indictment on the aggravator factor will slow the process down
or eliminate it as a sentencing factor.
10:06:31 AM
CHAIR SEEKINS noted that Ms. Brink said that less than 10
percent of people charged go to trial and that she believes an
increase in the range of presumptive sentences decreases
certainty to the penalty. He asked if she would attempt to
negotiate with the district attorney an agreed-to range now or
whether that would be left to the judge's discretion.
MS. BRINK said for the most part, she attempts to negotiate not
only a charged certainty or adjustment, but also a sentence
certainty or adjustment. She began to poll its agency attorneys
statewide and found that estimates of agreed-upon sentences
ranged from 60 percent to 80 percent. Most of the bargaining
that goes on now includes certainty as to the sentence.
10:08:20 AM
CHAIR SEEKINS asked if one couldn't assume this will be left to
the discretion of a judge.
MS. BRINK said with the current system, she has strong
confidence about what her client is facing because the
presumptive is a set number and not a range, although there may
be some uncertainty about whether an aggravator can be proven.
With SB 56, there will be no reason for the state to offer the
low end of the presumptive range because there is no reason to
believe the judge would give the low end.
CHAIR SEEKINS asked if one was trying to evaluate the number of
cases that would go to trial, how the number of cases that would
go to trial would affect workload on personnel of both the
district attorney and public defender's offices.
MS. BRINK said the workload would increase if more cases went to
trial but it is impossible to predict the percentage of those
cases. She said it is up to the defendant to choose whether to
go to trial or enter into a negotiated plea.
CHAIR SEEKINS asked if her concern is that the level of
uniformity will be higher.
MS. BRINK said her concern is a loss of uniformity because this
bill enlarges provisions and expands the discretion of a judge.
She also expressed concern that SB 56 will jolt everything up a
notch.
10:11:34 AM
SENATOR THERRIAULT asked, with regard to plea-bargaining and a
client liking certainty, if the prosecutor plays into the role
of whether the court will take up potential aggravators.
MS. BRINK said absolutely and that they make the initial
decision of whether to charge the person with an aggravator.
10:12:13 AM
SENATOR THERRIAULT argued that the prosecutor would have to take
the first step to trigger the aggravators but the court is
required to look at the aggravators so that the current number
in statute is not certain. He said he would imagine that in
plea-bargaining, one of the first things that come into play is
foregoing any aggravators.
MS. BRINK agreed and said that is one of the first things
discussed. Often the deal is made for the presumptive sentence.
She said that under SB 56, she would not be able to tell the
client s/he has committed a two-year crime. Instead she will
have to tell him it's a two to four-year crime.
10:13:46 AM
SENATOR THERRIAULT asked if she would discuss with a prosecutor
the number of years within the range so that dynamic would not
change all that much. He then asked if she is fearful that the
court will automatically gravitate to the middle or higher end
of the range without encouragement from the prosecutor.
MS. BRINK said she couldn't answer those questions but explained
SB 56 will give the judge a big spread to pick from. There is no
prioritization of what factors are important. The presumptive
was designed to take all of those factors into account.
CHAIR SEEKINS asked Senator Guess if she had any questions.
SENATOR GUESS had no questions but asked for a response from Ms.
Parkes later on her interpretation of Section 7.
SENATOR HUGGINS noted that Ms. Brink estimated that 90 percent
of cases are plea-bargained. He asked if the potential of a
higher sentence could increase that number to 91-92 percent.
10:16:20 AM
MS. BRINK thought the number could go either way and she could
not make a prediction.
SENATOR FRENCH arrived.
SENATOR THERRIAULT noted the committee was considering the
following changes: a change to the language in Sec. 2; adding
language to ensure that a non-English speaking probationer
understands directions given by the probation officer; and
addressing issues raised with Sections 7 and 29.
CHAIR SEEKINS asked Ms. Brink if she believes that SB 56
threatens the constitutional rights of a defendant in any way.
MS. BRINK was not sure that it is constitutional to eliminate
the right to an appeal.
CHAIR SEEKINS asked her to write a letter on that topic to the
committee for further consideration.
10:18:41 AM
SENATOR THERRIAULT asked if that issue is in Sec. 7.
CHAIR SEEKINS said it is.
SENATOR THERRIAULT said the question on Sec. 29 has to do with
Sec. 33, the applicability and retroactivity sections. He asked
whether Sec. 29 would trigger an unconstitutional increase in
punishment.
MS. PARKES said DOL does not believe any constitutional problems
exist. DOL believes SB 56 will codify and make what is implicit
explicit, regarding the parole board's powers. Right now this
only applies to discretionary parole. She noted the problem now
is that a person can come before the board to request
discretionary parole repeatedly, which is time consuming for the
parole board. SB 56 will allow the board to refuse to hear
certain requests again.
10:20:42 AM
SENATOR FRENCH asked if this could trump a judge's restriction
on parole because the parole board would not hear from the
prisoner until the sentence imposed by the judge is completed.
MS. PARKES said that is correct.
CHAIR SEEKINS noted that other people want to testify on SB 56
but due to time constraints, the discussion would continue
tomorrow. He then adjourned the meeting at 10:21:55 AM.
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