Legislature(1999 - 2000)

04/05/2000 01:50 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
HOUSE BILL NO. 372                                                                                                              
                                                                                                                                
"An Act relating to criminal sentencing and                                                                                     
restitution."                                                                                                                   
                                                                                                                                
REPRESENTATIVE FRED DYSON, SPONSOR, testified in support of                                                                     
the legislation. He noted that virtually all justice systems                                                                    
around the world have focused on restitution of the victim                                                                      
after public safety. He noted that there has been a                                                                             
tradition of paying debts to society by paying the King                                                                         
instead of the victim. An effort has been made to return to                                                                     
a focus of restorative justice and restitution of victims.                                                                      
He observed that the juvenile justice system is committed to                                                                    
the restorative justice system. The legislation places                                                                          
current practice in statute and allows a negotiated                                                                             
agreement between the victim and the perpetrator to work out                                                                    
restoration of the community and victim as part of the                                                                          
sentencing agreement.                                                                                                           
                                                                                                                                
PETER TORKLESON, STAFF, REPRESENTATIVE DYSON observed that                                                                      
HB 372 is post-adjudication. The judge may consider letting                                                                     
a willing victim and defender negotiate a way, such as                                                                          
community service, to make the victim whole. Vermont has had                                                                    
stellar success in cost savings and reduced recidivism                                                                          
rates. He acknowledged concerns by the Department of Law                                                                        
regarding sentencing of potential felons. He pointed out                                                                        
that under lines 9 - 10 the negotiated sentence must comply                                                                     
with general sentencing guidelines. He stated that some                                                                         
people that commit technical felons, such as those that                                                                         
commit property fines, should be allowed to negotiate under                                                                     
the section. The legislation is permissive.                                                                                     
                                                                                                                                
Co-Chair Therriault questioned if discussions occurred                                                                          
regarding the exclusion of violent felons from the                                                                              
provisions.                                                                                                                     
                                                                                                                                
Representative Dyson stated that violent felons would be                                                                        
excluded. Mr. Torkelson pointed out that line 6 excludes                                                                        
violations under AS 11.41, which includes person to person                                                                      
assault and murder.                                                                                                             
                                                                                                                                
Representative Phillips referred to the negotiated agreement                                                                    
and questioned the rationale of giving the defender the                                                                         
right to request negotiation. Representative Dyson gave                                                                         
examples of negotiations that may be presented by a                                                                             
defendant. Confronting the victim and apologizing is helpful                                                                    
in restoring the perpetrator.                                                                                                   
                                                                                                                                
In response to a question by Representative Phillips,                                                                           
Representative Dyson noted that more than half of offenders                                                                     
chose to enter into an agreement and more than half of those                                                                    
that chose negotiation fulfill their obligation. If the                                                                         
agreement is not fulfilled than the perpetrator returns to                                                                      
the original penalty. Agreements have the force of law.                                                                         
                                                                                                                                
Representative J. Davies questioned if the legislation                                                                          
limits the ability to restore costs to the "King".                                                                              
Representative Dyson emphasized that the community gets an                                                                      
opportunity to recover costs.                                                                                                   
                                                                                                                                
Co-Chair Therriault observed that after an offender is                                                                          
convicted a fine is charged and that surcharges pertain to                                                                      
the fine or penalty. He clarified that the victim and the                                                                       
perpetrator could agree on something to make the victim                                                                         
whole and pay a fine to the community and that the surcharge                                                                    
to the state would be included. Representative Dyson agreed                                                                     
that surcharges would be included and added that the cost of                                                                    
adjudication could be included.                                                                                                 
                                                                                                                                
Vice Chair Bunde clarified that the judge would monitor non-                                                                    
compliance. Mr. Torkelson stated that some perpetrators                                                                         
approach the court to negate the contract and resume the                                                                        
original sentence.                                                                                                              
                                                                                                                                
Representative Grussendorf summarized that the legislation                                                                      
would resolve the civil aspect of minor criminal offenses.                                                                      
                                                                                                                                
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES                                                                      
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW provided                                                                          
information on the legislation. The department is not                                                                           
opposed to restorative justice, but has some concerns                                                                           
regarding the legislation. She gave a brief history of                                                                          
current sentencing procedures. She observed that the main                                                                       
focus of presumptive sentences in the late 70's was to                                                                          
impose a sentence according to the offence and to provide                                                                       
uniformity for certain acts. She maintained that restorative                                                                    
justice is a bend in the road. She acknowledged that it is                                                                      
appropriate in certain cases and added that judges are using                                                                    
the process in mental health cases, substance abuse and in                                                                      
minor property crimes. Statutory authority is not needed for                                                                    
restorative justice. She expressed concern that the                                                                             
legislation sets parameters around the use of restorative                                                                       
justice. She stated that the department is concerned that                                                                       
restorative justice would be allowed in cases that they do                                                                      
not feel are appropriate such as first time unclassified                                                                        
felonies, first time class A felonies, and second offense                                                                       
class B and C felonies; this includes arson and burglaries.                                                                     
She maintained that these are serious crimes and questioned                                                                     
if a victim would be in a position to negotiate with an                                                                         
offender.                                                                                                                       
                                                                                                                                
Ms. Carpeneti stated that the department is also concerned                                                                      
that allowing negotiation between a victim and an offender                                                                      
is difficult because the victim is not in an equal                                                                              
bargaining position, victims are not represented. She                                                                           
recommended that the courts continue their current practice                                                                     
of slowly applying restorative justice in cases where it is                                                                     
appropriate without legislation.                                                                                                
                                                                                                                                
Ms. Carpeneti noted that in a victimless crime there is a                                                                       
question of who is the community. There would be cases where                                                                    
it is unclear who represents the community or what is best                                                                      
for the community. She summarized that the department has                                                                       
problems with the legislation but not with restorative                                                                          
justice.                                                                                                                        
                                                                                                                                
Co-Chair Therriault pointed out that the judge does not have                                                                    
to accept a negotiated agreement if he/she does not believe                                                                     
it is adequate punishment.                                                                                                      
                                                                                                                                
Ms. Carpeneti expressed concerns regarding equality of cases                                                                    
where the offender has enough money to negotiate a                                                                              
settlement that the victim thinks is fair as opposed to the                                                                     
person that does not have enough money to pay for the car or                                                                    
the window to make the victim whole.                                                                                            
                                                                                                                                
Co-Chair Therriault questioned if judges could be relied on                                                                     
not to allow perpetrators to buy their way out of adequate                                                                      
punishment.                                                                                                                     
                                                                                                                                
Ms. Carpeneti responded that it would be easier for a judge                                                                     
to address the issue on a case by case basis. The                                                                               
legislation provides for mitigating factors for a negotiated                                                                    
fee.                                                                                                                            
                                                                                                                                
Representative Grussendorf questioned if the state                                                                              
prosecutor would not act as the victim's attorney. He asked                                                                     
if the legislation could require that the state agree to                                                                        
negotiation.                                                                                                                    
                                                                                                                                
Ms. Carpeneti noted that defenders have one attorney for his                                                                    
or her only interest. The interest of the prosecutor is                                                                         
divided. She agreed that the legislation could require                                                                          
agreement by the state. She acknowledged that there has not                                                                     
been a problem with the current use of restorative justice.                                                                     
                                                                                                                                
Vice Chair Bunde summarized that the legislation is                                                                             
permissive and that judges can choose not to use the                                                                            
provisions of the law. Ms. Carpeneti agreed that the                                                                            
provision is permissive but emphasized that it is difficult                                                                     
for a judge to know if there has been intimidation. She gave                                                                    
the example of an older person that has been the victim of                                                                      
someone known to them. She stressed that victims can be                                                                         
fragile and afraid to speak for themselves. She noted that                                                                      
restorative justice is being used for cases involving mental                                                                    
health. She suggested amending the purposes of sentencing                                                                       
under AS 12.55.005. She stated that restoration to the                                                                          
victim and community could be added to sentencing purposes.                                                                     
                                                                                                                                
Vice Chair Bunde observed that the judge initiates                                                                              
restorative law under the current practice. If the                                                                              
legislation is passed the victim or the offender could                                                                          
initiate justice.                                                                                                               
                                                                                                                                
Ms. Carpeneti noted that, in Anchorage, cases are directed                                                                      
to particular courts where judges have adopted procedures.                                                                      
She suggested that the legislation would result in defense                                                                      
lawyers contacting victims. She pointed out that defendants                                                                     
often will not plea guilty unless they know what their                                                                          
sentence would be. She maintained that the provision is not                                                                     
practical due to plea negotiations.                                                                                             
                                                                                                                                
Co-Chair Mulder expressed concern with presumptive                                                                              
sentencing. He summarized that the department is concern                                                                        
that the legislation would allow the court to circumvent                                                                        
presumptive sentence. Ms. Carpeneti explained that a                                                                            
negotiation would be a mitigating factor and would allow the                                                                    
court to reduce presumptive sentencing.                                                                                         
                                                                                                                                
Co-Chair Mulder questioned if the negotiated settlement                                                                         
should include the judge. Ms. Carpeneti stated that it would                                                                    
depend on the type of case but that it would not a bad idea                                                                     
to include the judge. Co-Chair Mulder emphasized that the                                                                       
judge would be the third party to balance the agreement. He                                                                     
noted that there are some factors that might want to be                                                                         
exempted. Ms. Carpeneti responded that there has been                                                                           
discussion on excluding cases that are outside of AS 11.41.                                                                     
                                                                                                                                
In response to a question by Co-Chair Therriault, Ms.                                                                           
Carpeneti noted that an offender that burns down a house and                                                                    
an offender that burns something in someone's yard would                                                                        
both be included under arson.                                                                                                   
                                                                                                                                
In response to a question by Representative J. Davies, Ms.                                                                      
Carpeneti explained that the legislation adds a mitigating                                                                      
factor. She discussed presumptive sentencing under AS                                                                           
12.55.125. She noted that terms were set for what were                                                                          
deemed to be the right time for certain offenses. Then                                                                          
mitigating factors were set out to allow the court to raise                                                                     
or lower sentences. Factors of mitigation have to do with                                                                       
excuses. The defendant has to prove by clear and convincing                                                                     
evidence that it was a mitigated crime. The legislation                                                                         
would add a mitigating factor without clear and convincing                                                                      
evidence.                                                                                                                       
                                                                                                                                
Representative Grussendorf questioned how "community" would                                                                     
be defined. Ms. Carpeneti responded that she did not know                                                                       
how community would be defined.                                                                                                 
                                                                                                                                
BLAIR MCCUNE, DEPUTY DIRECTOR, PUBLIC DEFENDER AGENCY                                                                           
testified via teleconference in support of the legislation.                                                                     
He clarified that mandatory fines and surcharges would be                                                                       
included. He pointed out that the Victim's Rights Act                                                                           
protects the victim. He noted limitations on the contact of                                                                     
victims by the defendant's lawyer or the defendant. The                                                                         
state while representing the public interest also often                                                                         
represents the interest of the victims.                                                                                         
                                                                                                                                
Mr. McCune observed that juvenile court cases are screened                                                                      
to be sure that the cases chosen are appropriate. There is a                                                                    
victim offender mediator, which helps the process. He                                                                           
suggested that judges would be less inclined to take cases                                                                      
negotiated through straight contact. He maintained that                                                                         
restorative justice is about mediated controlled and                                                                            
carefully screened cases, in which the interests of the                                                                         
community, the victim and the offender are taken into                                                                           
account and carefully weighed. He noted that restorative                                                                        
justice has worked well in other states.                                                                                        
                                                                                                                                
Representative Grussendorf reiterated his questioned                                                                            
concerning the definition of "community".                                                                                       
                                                                                                                                
(TAPE CHANGE, HFC 00 - 102, SIDE 2)                                                                                             
                                                                                                                                
Mr. McCune gave examples of the interpretation of community.                                                                    
Mothers against Drunk Drivers were involved in a DWI case.                                                                      
Other restorative justice cases have included local merchant                                                                    
associations in downtown areas that were vandalized. He                                                                         
acknowledged that community is not strictly defined.                                                                            
Representative Grussendorf summarized that the judge would                                                                      
decide the definition of community. Mr. McCune affirmed.                                                                        
                                                                                                                                
Representative Dyson expressed confidence in the judge's                                                                        
ability to look after the interest of the victims. He                                                                           
pointed out that judges are already doing it and that the                                                                       
legislation would just authorize current practice. He                                                                           
stressed that there are good application opportunities for                                                                      
rural Alaska and emphasized that it is not a new practice.                                                                      
                                                                                                                                
Representative J. Davies expressed concern that there not be                                                                    
unintended consequences. He asked for purpose of including a                                                                    
mitigator.                                                                                                                      
                                                                                                                                
Mr. Torkelson responded that the purpose was to allow the                                                                       
judge to take the negotiation into account.                                                                                     
                                                                                                                                
Representative J. Davies noted that all the other mitigators                                                                    
were on the nature of the crime itself. He pointed out that                                                                     
there would be a new class of mitigators.                                                                                       
                                                                                                                                
Vice Chair Bunde stated that his concern is with the victim.                                                                    
He stressed that he would rather have his loss restored than                                                                    
have someone sit in jail.                                                                                                       
                                                                                                                                
Representative Dyson observed that perpetrators that go                                                                         
through restorative justice have lower incidents of                                                                             
recidivism. He maintained that working to restore a loss                                                                        
expresses the magnitude of the crime and the loss on the                                                                        
offender. He felt that it would be a greater punishment to                                                                      
face victim and be accountable.                                                                                                 
                                                                                                                                
Co-Chair Therriault stressed that he wanted to assure that                                                                      
judges do not just rubber stamp negotiations but take an                                                                        
active role.                                                                                                                    
                                                                                                                                
Representative Grussendorf questioned if some of the more                                                                       
serious crimes should be excluded. Representative Dyson                                                                         
acknowledged his concern and added that making up for a                                                                         
burglary is a good experience for the burglar. He emphasized                                                                    
that it can work for very violent crimes and urged that the                                                                     
judge make the decision.                                                                                                        
                                                                                                                                
Representative Grussendorf pointed out that burglary and                                                                        
arson can turn into very serious offenses.                                                                                      
                                                                                                                                
Co-Chair Therriault questioned if lesser and greater extents                                                                    
of arson can be separated.                                                                                                      
                                                                                                                                
Representative J. Davies stated his intention to offer                                                                          
amendments on the legislation. He stated that he would like                                                                     
to add a requirement that the court approve the negotiation                                                                     
before it happens.                                                                                                              
                                                                                                                                
Co-Chair Mulder questioned if the judge should be involved.                                                                     
Discussion ensued regarding involvement of the judge. Co-                                                                       
Chair Mulder argued in support of the judge's involvement.                                                                      
Representative J. Davies stressed that there are classes of                                                                     
restorative justice that would not require the involvement                                                                      
of the judge during negotiations.                                                                                               
                                                                                                                                
Representative J. Davies restated his intention to offer an                                                                     
amendment that would insert a sentence at the end of section                                                                    
1: in this section "community" shall be defined by the                                                                          
court. Mr. Torkelson observed that "community" is defined as                                                                    
a group of people with common interests.                                                                                        
                                                                                                                                
Representative J. Davies stated that his amendment would                                                                        
make it clear that is not up to the offender to define the                                                                      
community.                                                                                                                      
                                                                                                                                
Mr. Torkelson questioned why would the defense attorney                                                                         
allow to a defender to go into something without knowing the                                                                    
outcome. Representative J. Davies pointed out that have the                                                                     
choice to agree or go back to the original sentencing.                                                                          
                                                                                                                                
HB 372 was heard and HELD in Committee for further                                                                              
consideration.                                                                                                                  

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