Legislature(1995 - 1996)
03/17/1995 01:22 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER REPRESENTATIVE BUNDE, bill sponsor, made a motion to adopt the committee substitute for HB 38 (JUD), Version C, dated 3/10/95. Seeing no objection, the committee substitute was adopted. REPRESENTATIVE BUNDE said CSHB 38 clears up some language concerns expressed about the original bill. He called the bill drafter, Jerry Luckhaupt forward to answer questions about the committee substitute. He stated that basically, it makes Section (j) apply to the previous Section (f), so that they mean the same thing. Section 6 discusses a definite term, and this clarifies the language. In Section 7 the habitual criminal section gives the 40 to 99 year sentence, which is a change from the mandatory 99 year sentence in the previous version of the bill. Section 8 clarifies the language about two prior felony convictions. It specifies that they are separate convictions. It cleans up the language about a definite sentence and a most serious felony. REPRESENTATIVE FINKELSTEIN said his understanding was that whenever we have used presumptive sentencing, we have also set up a three judge panel to allow an appeal to see that justice is being served. We did have comments from the previous representative of the Department of Law, Mr. McNally, who said presumptive sentencing would be required to uphold the challenge. It may be arguable, and it may not be necessary, but it is a good policy, and if we are going to say in the case of presumptive sentencing that you are going to get these absolute sentences, there has to be some opportunity, some due process to determine if there are circumstances here where justice would not be served. The discretion between 40 and 99 years is an improvement to the bill, but still, for most people, 40 on up is a life sentence, or close to it, even if it were reduced down to 30 years. To impose presumptive sentencing, which has lower penalties, requires a three judge panel. JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, Legislative Affairs Agency, explained that for purposes of presumptive sentencing, the sentencing court has options. If the court finds clear and convincing evidence that the manifest injustice would result from imposing the presumptive term under the statute, the court can then refer a case to a three judge panel. That is done in all presumptive sentencing cases under current law. For the most part, this is for second and third felony offenders, and for all class A felony offenders. There is one case where we have imposed the mandatory term of 99 years. That is for murder in the first degree, with numerous aggravated circumstances. Those are torture murders, murders of a peace officer, or the murder of an emergency responder while performing their duties. It is in situations like that where the court does not have the option of deviating from that 99 year sentence, and going to the three judge panel. He did not know of any constitutional requirement or impediment that would require a referral to a three judge panel. If the comments of Mr. McNally were from last year the comments, he remembered were in reference to situations where we were imposing the 99 year sentence, and there would have to be some sort of review; and that is provided through the direct appeal process that would be available in these cases. MR. LUCKHAUPT explained that in states where presumptive sentencing is used, there has been concern that presumptive sentencing could lead to particular consequences that are unjust, and hence, this idea of the three judge panel exists. But, again, it is under very narrow circumstances that cases are referred to the three judge panel. REPRESENTATIVE FINKELSTEIN offered his amendment to the bill. First, he wanted to change the word "shall" to "may" on page 1, line 15 of the amendment. It makes it a little clearer. The amendment reads: Page 6, following line 30: Insert new bill sections to read: "Sec. 13. AS 12.55.165 is amended to read: Sec. 12.55.165. EXTRAORDINARY CIRCUMSTANCES. (a) If the defendant is subject to sentencing under (1) AS 12.55.125(c), (d), (e), or (i) and the court finds by clear and convincing evidence that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 or from imposition of the presumptive term, whether or not adjusted for aggravating or mitigating factors, the court shall enter findings and conclusions and cause a record of the proceedings to be transmitted to a three-judge panel for sentencing under AS 12.55.175; or (2) AS 12.55.125(l) and the court finds by clear and convincing evidence that manifest injustice would result from imposition of the definite term, the court may enter findings and conclusions and cause a record of the proceedings to be transmitted to a three-judge panel for sentencing under AS 12.55.175. (b) In making a determination under (a)(1) [(a)] of this section, the court may not refer a case to a three-judge panel based on the defendant's potential for rehabilitation if the court finds that a factor in aggravation set out in AS 12.55.155(c)(2), (8), (10), (12), (15), (17), (18)(B), (20), (21), or (28) is present. Sec. 14. AS 12.55.175(b) is amended to read: (b) Upon receipt of a record of proceedings under AS 12.55.165, the three-judge panel shall consider all pertinent files, records, and transcripts, including the findings and conclusions of the judge who originally heard the matter. The panel may hear oral testimony to supplement the record before it. If the panel finds that manifest injustice would result (1) for a record of proceedings transmitted under AS 12.55.165(a)(1), from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 or from imposition of the presumptive term, whether or not adjusted for aggravating or mitigating factors, or (2) for a record of proceedings transmitted under AS 12.55.165(a)(2), from imposition of the definite term, it shall sentence the defendant in accordance with this section. If the panel does not find that manifest injustice would result, it shall remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentencing under AS 12.55.125. Sec. 15. AS 12.55.175(c) is amended to read: (c) The three-judge panel may in the interest of justice sentence the defendant for a proceeding transmitted under (1) AS 12.55.165(a)(1), to any definite term of imprisonment up to the maximum term provided for the offense or to any sentence authorized under AS 12.55.125(a), (b), (c), or (i). Sec. 16. AS 12.55.175(e) is amended to read: (e) If the three-judge panel determines under (b)(1) [(b)] of this section that manifest injustice would result from imposition of the presumptive term and the panel also finds that the defendant had an exceptional potential for rehabilitation and that a sentence of less than the presumptive term should be imposed because of the defendant's exceptional potential for rehabilitation, the panel (1) shall sentence the defendant to the presumptive term required under AS 12.55.125; (2) shall order the defendant under AS 12.55.015 to engage in appropriate programs of rehabilitation; and (3) may provide that the defendant is eligible for discretionary parole under AS 33.16.090 during the second half of the sentence imposed under this subsection if the defendant successfully completes all rehabilitation programs ordered under (2) of this subsection." Renumber the following bill sections accordingly. REPRESENTATIVE BUNDE objected. MR. LUCKHAUPT thought the word "shall" should not be changed to "may" on page 1, line 15 of the amendment. Under current law, and the language that he has basically mirrored, it is already discretionary. The judge must find by clear and convincing evidence that manifest injustice would result from sentencing the defendant from 40 to 99 years. The judge has the discretion to find that or not. Once the judge finds that, the word "shall" is there, to make sure the judge enters the findings and conclusions so that the three judge panel can then review the case. Once the judge finds that, the judge must send it to the three judge panel. Then the three judge panel looks at the findings and conclusions, and reaches their own decision on whether or not clear and convincing evidence exists that manifest injustice would result from sentencing, and if the three judge panel disagrees, then they can send it back. The word "shall" is there to make sure the judge enters findings and conclusions, and then sends the case up when he finds that there is clear and convincing evidence that manifest injustice would result. Number 445 CHAIRMAN PORTER asked Representative Finkelstein if he wished to rescind his amendment to his amendment. REPRESENTATIVE FINKELSTEIN said yes, he would rescind that part of his amendment. He would change "shall" back to "may." REPRESENTATIVE BUNDE was not sure they would want to apply a lower standard offense to this bill, because they are talking about the worst case scenarios of habitual offenders, and he is really concerned about keeping the fiscal impact down. He then asked Mr. Luckhaupt for his assessment of what this amendment would do to the bill. MR. LUCKHAUPT answered that the amendment would basically allow the judge, when he finds this clear and convincing evidence of manifest injustice, to refer the case to the three judge panel who would make that finding. The three judge panel would not have to sentence someone to the 40 to 99 years that is provided for in this case. The court would have to sentence the person to at least the presumptive term for the offense. This would be a third felony offense, so they would have to give the minimum sentence, at least. For first degree murder, we provide for a 20 year minimum term, and for the other unclassified felonies, we provide for a five year minimum. Some of the presumptive terms for a third offense are as follows: For your third sexual offense, the presumptive term is 25 years; for your third felony conviction, if your current one is a class A felony conviction, then your presumptive term is 15 years. Basically, this provides an option to throw out the habitual criminal sentencing process and go back to the regular presumptive sentencing process, or the range of sentencing processes currently provided for unclassified felonies in law. It establishes the current sentencing structure as a minimum that the three judge panel could sentence to. CHAIRMAN PORTER said as far as the fiscal impact goes, if anything, there might be a savings. This review would be used in an exceptional case. Number 530 REPRESENTATIVE BUNDE said one of the initial reasons for the bill was that the public has not been particularly happy in some cases with the judicial system. They feel that they have been too flexible, too liberal in their generosity; not in their political sense. He felt the amendment would deter from the message he is trying to send, the message people have asked him to send. He continued to oppose the amendment. REPRESENTATIVE FINKELSTEIN said his focus in this legislation is not so much on the habitual criminal, but on three strikes, and you will get a higher penalty. If you compare what we are doing here, it does that, even with this amendment. You go up from either 15 years to 40 - 99, or you are going from 25 up to 40 - 99. There is a big difference. If the minimum of any of these sentencing processes is 30 years, if you are 30 when you go in, and 60 when you get out, this is close to life in prison, and therefore, still achieves the purpose, because it is upping the minimum sentences for people who fit this third category. That is what people who feel this way would like to achieve. Do we want to have the minimum be 40 years, when there may be a circumstance out there where justice would not be served? Imagine someone who has a DWI and kills someone, which is a very bad crime, but it is a crime that could go on at any day in any one of our towns with a hundred people on the road who are driving drunk. It is a matter of happenstance as to who actually kills someone. Our laws reflect that. Manslaughter is one of the things that counts in this. That gets you into jail the first time. Now you are in jail, and you feel that your life is threatened if you stay in jail, so you try to escape, and you manage to get your hands on a knife and escape, and then you are eventually brought back to jail. Someday, when you are discharged, and you are out on the street again, your previous life is completely gone after serving all this time. Now you are involved in some other illegal activity such as dealing drugs. If you get arrested one time for dealing drugs, you have had your third strike. I think that is the kind of case where a three judge panel would say, "Hmm, I do not think justice is being served, and this is not necessarily in the best interest of society." There are people who need to fill our jails who are worse threats to society than this person. CHAIRMAN PORTER responded, saying that one thing to keep in mind is that it might very likely be the case that the prosecutors would not elect to charge under this statute. They do have that discretion in the first place. It could be that a three judge panel does have discretion to alter a minimum sentence. The way he reads "three judge panel" under 12.55.175, the panel may sentence a defendant to any definite term of imprisonment up to a maximum, or to any sentence authorized under AS 12.55.010, or AS 12.55.015; and AS 12.55.015 is just a general provision for sentencing anyone. MR. LUCKHAUPT stated that under current law that is true. The amendment is to avoid that. That section would only apply to the current cases that can be referred to the three judge panel. At that point, the panel can sentence to any term. They can go below the minimum for that offense. This amendment separates it, so that if you are being sentenced under the habitual criminal law, and you are referred under that law to the three judge panel, then they cannot go below the presumptive or minimum term. That is on page 2, lines 17 - 19. The section that deals with the judges finding extraordinary circumstances is on page 1. Page 2, Section 16 of the bill describes sentencing authority. REPRESENTATIVE FINKELSTEIN felt that in general, prosecutors go for the highest level of crime that they have evidence for sustaining the case, because they are upholding the laws by doing that. That is one of their responsibilities. It also gives them more room if they are trying to negotiate and to get the defendant to accept a guilty plea. In our system of justice, we cannot put too much emphasis on the prosecutors to achieve this. Their goal is to prosecute. We cannot always expect them to mitigate every one of these concerns. They have to go out and make their strongest and best case. CHAIRMAN PORTER did not dispute that. He said that we also cannot disregard history and what the normal practice of prosecution is. Heinous cases normally receive heinous consideration; and those cases that are not heinous, do not receive heinous consideration, due to the high volume of cases that are presented. REPRESENTATIVE FINKELSTEIN agreed that was true under current law, but this is a whole new area. We never got into presumptive sentencing without any appeal option for the unusual circumstance. Number 660 REPRESENTATIVE BETTYE DAVIS spoke in favor of the amendment. She understood what the sponsor was trying to do with the bill, and he has worked hard to make this more palatable to more people, but she sees this amendment as something that would be helpful to the bill. She believed the bill was aimed at the wrong group of people. She has seen and read that violent crime is on the decline, and not on the incline. This bill is targeting older people. It is not the older people, but the younger people where we have the problem. We have teenage crime all across the nation. She thought the committee should take their time and really consider what we actually want. We would have to have more jails, and a place to keep these older people. The medical bills would be more expensive. If we can keep a few people from falling into this category simply by having this amendment added to the bill, it is a good thing that we should do. For that reason, she supported the amendment. It might not save but a precious few, but we could not go wrong by doing it. Number 680 REPRESENTATIVE BUNDE said that people in this category have already been convicted twice before, so they have already had a two judge panel review. You have to work pretty hard to fall under the purview of this bill. CHAIRMAN PORTER asked for a roll call vote on the amendment. Representatives Davis and Finkelstein voted yes. Representatives Toohey, Bunde, Vezey, Green, and Porter voted no. The amendment failed two to five. REPRESENTATIVE BUNDE made a motion to move CSHB 38(JUD) out of committee with individual recommendations and accompanying fiscal notes. Hearing no objection, it was so ordered.
| Document Name | Date/Time | Subjects |
|---|