Legislature(1995 - 1996)
03/08/1995 01:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HJUD - 03/08/95 HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER Number 275 REPRESENTATIVE BUNDE, sponsor of the bill, described his bill. Sponsor Statement: "HB 38 provides a mandatory 99-year sentence for a specific group of offenders who have two separate prior class A or unclassified felony convictions. "Under this proposed legislation discretionary parole and good time sentence reductions are not available to offenders who are sentenced to a 99 year term. However, HB 38 allows those with a 99-year sentence to ask the court for a reduction in sentence after they have served 50 years of their sentence. This provision is similar to what is allowed when a murderer is convicted of a 99- year sentence. "This proposed legislation gives prosecutors some discretion in the decision to pursue the 99-year sentence. This will avoid unjust results in certain cases where the evidence may be weak. This provision will also allow the prosecutor some flexibility to proceed with the normal presumptive sentencing provisions when necessary. "There is a cost for keeping a person incarcerated for 99 years. This legislation is crafted to keep the cost to a minimum and save the state money. Strong punishments can shape behavior and deter crime. Offenders may find they want to move to a state without a 3 strikes statute. Some offenders may decide the third strike is not worth the rest of their life, and change their behavior. Additionally, studies have shown that the recidivism rates for three time offenders let back into society are between 65-76 percent. These offenders are taking up costly time in our judicial system by committing the same crimes again and again. If the revolving door is stopped the associated costs will decrease. "It is time to close the revolving door too many repeat offenders depend upon. This proposed legislation will make our state a safer place. I urge your positive consideration of this legislation." Number 380 REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of Section 6. JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, described Section 6. He said Section 6 is the statutory meat of the bill, where we get started into what the sentence structure will be. What we are doing is creating another way for people to be sentenced, whose current conviction is their third most serious felony conviction. "Most serious felony" is defined through Section 6. What has to occur to receive this 99-year sentence for this third most serious felony conviction, is that the prosecutors must provide notice that they intend to seek a 99-year sentence. Then if the person is convicted of that crime, and the judges, without discretion, do sentence the person to another sentence, other than this mandatory 99-year sentence; we use those same exceptions in the murder statute. There are one or two other provisions in our standard sentencing provision of 12.55. Section 7 of the bill adds in provisions for how you determine when something is a previous most serious felony conviction for establishing that the person has two previous convictions. This bill, as it progressed last year, was modified so that each of the convictions had to have occurred as part of a separate criminal escapade. The first two convictions had to have occurred at different times, and both convictions must have occurred before the current conviction. MR. LUCKHAUPT explained Section 8 of the bill. In order to work in the language about how we are going to allow someone to challenge these previous convictions, and we have this new term "most serious felony," we basically had to rewrite the section. It deals with the procedure of how a defendant can challenge these convictions. MR. LUCKHAUPT explained Section 9. It deals, again with how the defendant is able to challenge the convictions of whether or not one of the previous convictions is a most serious felony conviction. MR. LUCKHAUPT explained Section 10. It adds a new subsection to clarify when a previous conviction is counted as a previous conviction. Last year when we were doing this bill, we discovered that our current statutes are not clear. In all cases when we are trying to determine when a prior most serious felony conviction or any prior conviction should be counted as a prior conviction. This was the language we developed with the Department of Law to clarify, not only the situation presented in this bill, but the situations presented across the board in all of our criminal sentencing schemes where a previous conviction increases the penalty. MR. LUCKHAUPT explained Section 11. It is an aggravating factor that can be used for offenses to increase the presumptive term. That is basically a technical change we are making. MR. LUCKHAUPT explained Section 12. It defines "most serious felony." It means any unclassified or class A felony, which are the crimes that the legislature has determined to be the most heinous of crimes, and it is only unclassified and class A felonies prescribed under AS 11, under our criminal code, or an attempt, or conspiracy, or criminal solicitation to commit any of those crimes. The attempts, conspiracy, and criminal solicitation to commit a class A felony, are punishable as class B felonies, normally. MR. LUCKHAUPT explained Section 13. It provides that, just like with prisoners who are sentenced to 99 years for certain types of murder, they are not eligible for discretionary parole during the entire term. We mirror that with these 99 year sentences, so that anyone convicted here is not eligible for discretionary parole. REPRESENTATIVE FINKELSTEIN asked about page 7, lines 6 and 7. It says that prisoners are not eligible for a good time deduction if they have been sentenced to this mandatory sentence. MR. LUCKHAUPT said last year a decision was made in one of the committees that we are eliminating good time for people receiving 99 year sentences for being habitual criminals under this bill. People receiving 99 year sentences for murders in the first degree were eligible for good time, and that did not seem to make much sense that we could not get good time here, but they could get good time under a 99 year sentence in that situation. The decision was made to eliminate good time for both classes of criminals, and to do that, to avoid this being an ex post facto law, where we are increasing a criminal punishment after the crime has been committed, and after the person has been sentenced; that we can only eliminate good time for people receiving murder sentences for offenses that are committed after the effective date of this act. So those people with 99 year sentences who committed their offenses before the effective date of this Act would still be eligible for good time, since good time is considered to be a reduction of sentence, in the federal courts, and most state courts. The United States Supreme Court has found that good time is a reduction of sentence, so any time the legislature tries to take away good time, or lessen its affect, that represents an unconstitutional ex post facto law. Number 560 CHAIRMAN PORTER asked about the provision for judicial review at a certain age. MR. LUCKHAUPT answered that provision is in Section 5. It was put in when they adopted the mandatory 99 year sentences for certain first degree murders, and it was felt that there should be a way for that sentence to be modified at some point in time. Section 5 of the bill provides that a defendant can file a motion for sentence reduction after they have served half of the mandatory 99 year sentence. The decision was made in this bill, to match that, and to provide a bit of leniency here, to allow people with a 99 year sentence to apply to the court for a sentence reduction. CHAIRMAN PORTER asked if he would consider Number 3 of Section 6, "...a prisoner for prescribed mandatory term may not otherwise be reduced..." as inconsistent with that provision? MR. LUCKHAUPT said not necessarily. While we actually have not been able to apply that provision to these other 99 year sentences yet, he would not say that it is implicative, since this other subsection is in the same section of the bill. They are read together. In one situation, legislature is saying that you can never reduce the sentence, but we are also providing, in the same section of the bill, a way to do that. The proper way would be to say, "notwithstanding that provision," we can provide for the sentence reduction. That was not done in 1990, and so it has not been done here. It may not be entirely necessary to do that. Basically, this provision would mean nothing if you did not read these two provisions together, to allow something to occur, which, when you look at the rules of statutory construction, the legislature intends, all of their acts, by enacting this provision to allow a sentence reduction after 49 and 1/2 years. They enacted that knowing this other section was out there. You have got a duplicate provision of this language that would apply to those mandated 99 year murder sentences, in statute now. That was not a problem when we enacted in 1990, and he would not anticipate it to be a problem in this case either. CHAIRMAN PORTER said he would like a bill they did not have to argue about. REPRESENTATIVE BUNDE said some people would observe this as the geriatric provision, for a number of reasons. Perhaps a 65 or 70 year old is no longer a danger to society. CHAIRMAN PORTER wanted to make sure they could still use that provision. REPRESENTATIVE FINKELSTEIN asked, under the presumptive sentencing, which of those are subject to the three judge panel if you are trying to appeal a presumptive sentencing for 99 years for some other crime. Do we have a three judge panel that applies to all of those? How do you appeal the existing presumptive sentences? MS. OTTO, Deputy Attorney General, Criminal Division, answered that right now, if you are subject to a presumptive sentence, and there are no aggravating or mitigating factors, you can ask the court to refer the case to the three judge panel. That would be for sentences that fall under the normal presumptive sentencing statutes. This is not a normal presumptive sentence, this is a mandatory sentence, as is the other mandatory 99 year sentence, and the three judge panel does not apply to those cases. This is taking away judicial discretion to deviate from the sentence that the legislature laid out. REPRESENTATIVE FINKELSTEIN asked if for these kind of life imprisonments, there was any sort of court standard or expectation of due process for these higher levels of sentencing. He thought you had to have an appeal route. MS. OTTO answered the court usually defers to the legislature in determining the kind and length of sentence that should be imposed. They do their best to put in procedures to make the process constitutional, so that in imposing a sentence, somebody would have to be given the right to be heard, and would have to be able to be represented by counsel and all of the other procedural protections that we impose, but the legislature has the ability to set a particular sentence for a particular offense. REPRESENTATIVE FINKELSTEIN asked if there had been any court rulings that say it is a violation of due process, or cruel and unusual punishment if you use presumptive sentencing regardless of the circumstances. MS. OTTO said she knew there were challenges being made to "three strikes and you're out" statutes in other states, based on exactly that argument; but to her knowledge there has been no such ruling in Alaska. MS. OTTO then gave her testimony, after answering Representative Finkelstein's questions. She started working in prosecution in 1978, she has been an assistant district attorney, district attorney, and chief prosecutor. She has testified before the legislature on behalf of the Department of Law for many years in favor of prosecution legislation. She now supervises the district attorney's offices in the state. She has been described by some people as never having met a tough criminal bill that she did not like. She believes strongly in protecting the public through tough criminal legislation. She felt this bill was rational in that it narrowly targets the kind of offenders that really are getting long sentences. It is clear that Representative Bunde has put a lot of work into the language. She was frustrated with the bill, however, and she had been working on it for a couple of days. The Legislature has before it a supplemental for the Department of Corrections to make it possible for them to keep the people who are in custody now, incarcerated. The amount of cuts that are being made to the Department of Corrections are such that what we are talking about right now, is letting every single misdemeanant out, and not incarcerating anybody else who is being sentenced for a misdemeanor for the rest of the fiscal year, because we do not have the money to keep facilities open, to keep them in jail. So she has been trying to figure out the legal process that we need to go through to have that happen. She is very bothered by this. She thinks they have laws like DWI and domestic violence, all the misdemeanor crimes that we have, for a reason. She thinks people need to go to jail for those. She thinks people need to stay in jail for those. If you do not have penalties for people when they are committing minor crimes, you have people cycling out of control, and they think they can get away with things, and that there will not be any penalty. The reality is, unless the legislature appropriates the money that is necessary to keep these very expensive correctional facilities operating, we cannot put people in jail, or keep them in jail. REPRESENTATIVE BUNDE observed that last year in another body he was asked if he was personally willing to pay taxes to support a bill like this, and he certainly is. We are talking about hardened criminals, and a lot of Ms. Otto's frustration comes from the incarceration of people who are not going to fall into that category. Before we need to build more prisons, the public has to perceive the need, before they support building prisons. He is talking about 5 or 6 hard core, habitual criminals that are not going to overwhelm the correction system the way we are being overwhelmed by these misdemeanants, who are in a different category. CHAIRMAN PORTER noted it was not his intention to pass the bill out of committee that day. Number 830 RANDALL BURNS, Executive Director, Alaska Civil Liberties Union, testified via teleconference from Anchorage. He disagreed with the schematics of the bill and the belief that his bill really does not have a fiscal note in the near future. There was a story in the Anchorage Daily News this morning, noting one of the clear impacts of this bill, is in fact, a financial one. The decision will be made for a future strike (felony) not to plead to them anymore. He thought they should look at the history of the jurisdiction, of what has been happening to the court system as a result of the decision to adopt what is called "three strikes" or "habitual" legislation. The point is, felons are simply not pleading out to those anymore, but are insisting on going to trial. That costs more money. The question you have to ask is whether or not that makes any sense. For instance, research gives us information about the death penalty bill, which you have obviously been privy to in this committee in years past. It has shown us that our judges are presently giving first degree murderers significant penalties. What good does it do to have mandatory sentences, when the average sentence imposed for first degree murder ranges between 62 and 87 years? One of the issues is that there is not really a significant need for this bill. He felt our current statutes already had significant protections. TAPE 95-27, SIDE A Number 000 MR. BURNS continued, disagreeing with the geriatric provision. For humanitarian reasons alone, if a prisoner is subject to cancer, and dying, they should not have to die in prison. He also felt this legislation was increasing the danger to law enforcement officials in Washington State. Criminals would rather go out in a shoot out, than be arrested, knowing they will spend the rest of their life in jail. He felt that a mandatory life sentence was cruel and unusual punishment. He believes in the reformation aspect of the State of Alaska Constitution. Number 120 BARBARA BRINK, Deputy Director, Public Defender Agency, testified via teleconference from Anchorage. She felt the fiscal impact to the state would be noticed immediately, since this changes the sentence for people who are now serving a 10 year sentence, to a life in prison sentence. She felt the cost of convicting someone would be substantial, as it would require proving the constitutionality of each prior conviction, some of which may have occurred in other states, which would in turn, require travel. The prior strike would have to be shown to be a felony in the State of Alaska. It would have to be a constitutionally valid plea. That person would have to have had competent counsel, and if there is any differing procedure in the other state, that has to be accounted for as well. Thousands of man hours would be involved there. Any person in this category would be more likely to go to trial, rather than plea to the charge. Currently, 94 percent of felony cases here in Alaska do not go to trial. They are resolved with plea bargains, pleas to the charges, dismissals, and negotiations. You would be turning a simple trial into a complicated drain on the Alaska Court System, the Public Defender's Office and the District Attorney's office. MS. BRINK felt HB 38 was targeting the wrong age group. The rate of crime for older people is decreasing, while the crime rate among juveniles and younger adults has risen. She said that every hour we spend locking up old people, is an hour we cannot spend elsewhere. REPRESENTATIVE BUNDE spoke to the concern over crowding our courts. He guessed we could uncrowd our courts if we just stop arresting people, but that is not the purpose. This may indeed cause more work for courts, but one of the problems is the lack of public confidence in this judicial system at this point. Many people have told him how uncomfortable they are with the discretion judges have. He read an article about how judges use their romantic notions to try to rewrite our laws. He felt that if a person was not rehabilitated after 20 years in prison, they most likely will never be. Number 420 CHAIRMAN PORTER explained that in his experience, he has asked criminals if they realized how close they actually were to spending the rest of their lives in jail, and in some instances, they actually did make a turn, and changed their behavior. That is an element that can be used when you have this kind of crime on the books. It is an expensive one, and we should try to craft this legislation in the least expensive, most effective way we can. Our legal counsel will be working with the bill sponsor over the next few days to try to put them in. One change that was mentioned was the clarifying language on page 4, section (b) which begins on line 26. It could be misinterpretted, and he would like to have a bill that does not ask more questions than it answers. There will be suggestions on other sections too. He ended the discussion on HB 38 for further consideration and changes.
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