Legislature(1999 - 2000)
03/06/2000 02:30 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 372 - COMMUNITY BASED SENTENCING CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 372, "An Act relating to criminal sentencing and restitution." Number 2019 REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor of HB 372, first offered some history. He explained that our inherited legal system and almost all traditional societies have had, as a primary goal, the propitiation or restoration of the victim to a pre-offense condition. One Norman king, however, at the time of the Norman invasion, had decided that he owned everything and everybody in England; therefore, every offense against a person or property was an offense against the king. Thus began the continuing tradition where one pays a fine to the government even though the offense was against an individual. REPRESENTATIVE DYSON noted that in the last 25 years, there has been a growing trend in this country to get back to the concept of restorative justice. Alaska's constitution is one of the few in the nation that actually talks about it. Furthermore, [Alaska's] juvenile justice system is completely committed to this concept of restorative justice and trying to get back to a pre-offense condition. Representative Dyson indicated he'd been considering this concept for three years, including a possible constitutional amendment regarding the adult justice system that he had decided is too big a "bite" at this time. He said HB 372 is a relatively small step in that direction. REPRESENTATIVE DYSON explained that HB 372 just says that after a case has been adjudicated and a decision has been made, the judge may order, as part of the punishment, the restitution of the victim or the community. If negotiations between the offended party and the perpetrator are successful, and if the judge concurs, then [the judge] can give that negotiated settlement the force of law. Representative Dyson noted that several judges in the state are doing pioneer work in this area; he mentioned so-called circle sentencing and community-based sentencing, "where they work with the community of the offender and/or offendee, and the victim and the perpetrator, to negotiate terms that will try to restore the victim and the community to the pre-offense condition." REPRESENTATIVE DYSON noted the presence of Robert Buttcane, who has been overseeing this radical transformation in the juvenile justice system with impressive results. Pointing out that judges also have been working on some of these issues, he indicated that the previous year he had brought Judge Barry Stewart (ph), a pioneer in North America in the restorative justice concept, here from the Yukon Territory to talk about his work in Canada and other countries. REPRESENTATIVE DYSON related his own experience with perpetrators. That they have been enabled to "restore" their victims - or to take major steps towards that - has been a major step in their own reclamation; it provides a basis on which to begin to forgive themselves, to deal with the magnitude of their crimes, and to take steps to have more productive lives. Representative Dyson emphasized that this bill only deals with nonviolent property crimes and those sorts of things, not with violence. Number 2231 REPRESENTATIVE GREEN concurred that this has been extremely effective in the juvenile justice system, both here and Back East, where he attended workshops. In many cases, it was the young person's first offense. He said he wonders whether the same effect would be there for adults, however. REPRESENTATIVE DYSON responded that he had attended one national restorative justice conference, and has been in contact with the people who are working on this. Some states such as Vermont have done this totally, and the rate of recidivism is remarkably reduced, although arguably not all as a result of the restorative justice concept. As for adults that he has dealt with, who have had to face their victims and the impacts on those victims, this has been a major emotional event in their lives. REPRESENTATIVE DYSON recounted how he had sat at dinner twice in Washington, D.C., with the mothers of murdered children and the men who had murdered them; they had worked through, over the years, being reconciled, "and the perpetrator making what retribution could be." He said he believes the evidence is absolutely with this concept. He emphasized that this is totally voluntary. It gives the judges freedom to explore it, if the perpetrator is willing; he noted that historically, in other settings, many perpetrators have not been willing just because of the trauma of having to face their victims. Number 2324 REPRESENTATIVE KERTTULA asked, "What about in situations of domestic violence or with children?" Noting that she had just looked at the statutes, she pointed out that some offenses against the family aren't exempted [in the bill]. Her concern arises because in those situations there is an inherently unequal bargaining position. For instance, she has heard arguments against having mediation in divorce cases for precisely that reason, because the person who has been the victim gives in a little bit too easily. REPRESENTATIVE DYSON responded: Once again, it's totally voluntary, ... and we're trusting that the judge and/or the victims' advocates will be there to support them, and that they not be intimidated. In eastern Oregon, where I've been around some of this ... happening, it's been fascinating because the victim will come to ... the sentencing panel and say, "Here's what I need: I need to know that this person is never within ... 150 miles of me; I need to have counseling; I need to have my doctor bills paid; I need to have my property restored; I need to be recompensed for the time I lost when I was in the hospital, and pain and suffering." And ... the perpetrator will come and say, "Well, I didn't realize ... how much trouble I caused. I'll agree to stay ... 150 miles away, but I do have a maiden aunt ... in that country I'd like to be able to visit, and I'd like to be able to negotiate [a] twice-a-year visit, you know, whatever. Here's what I can do to pay back the doctor bills and fix [the] car." And that's all negotiated there. But, indeed, the victim has to be able to make their case for what they want." Number 2415 REPRESENTATIVE CROFT referred to the language that says "may, with the consent of the offender, impose a sentence ...." He asked whether it should say "with the consent of both the offender and the victim." He surmised that a victim just wouldn't agree to the negotiated agreement. He asked the reason for putting [the victim] through the negotiating process if the person doesn't want to do it. REPRESENTATIVE DYSON deferred to Peter Torkelson. Number 2439 PETER TORKELSON, Staff to Representative Fred Dyson, Alaska State Legislature, answered that to his understanding from going over this with Legislative Legal Services personnel, it should be implied that the victim has to be willing to be involved in the negotiating process with the offender. He indicated that is the intention. REPRESENTATIVE DYSON added that both have to agree to the solution. REPRESENTATIVE CROFT concurred that clearly the negotiated agreement is between the offender and victim and requires their coming to terms. However, it isn't as clear to him that the whole process doesn't start without the victim's approval. REPRESENTATIVE DYSON replied, "If you're correct, we would be delighted to have that clarified." TAPE 00-28, SIDE B Number 0011 REPRESENTATIVE GREEN referred to language in the bill that read, "or between the offender and the community if there is no victim." He asked, "How would you determine the community?" REPRESENTATIVE DYSON explained that if a school were vandalized or if someone vandalized the parking meters, for instance, then the designated representative of the community - the mayor or a designee, for example - would negotiate what it takes to propitiate the community. REPRESENTATIVE GREEN asked about the potential effects of hearing about a particular agreement on other potential perpetrators. REPRESENTATIVE DYSON answered that this certainly is aimed at repairing the damage to the victim. It is still in the judge's purview, however, to ensure that the penalties are sufficient to provide an adequate deterrent. Number 0079 MR. TORKELSON pointed out that this can also be in addition to another type of sentence or a portion of a sentence. Section 2 of the bill, which amends the restitution section of law, is potentially in addition to jail time or another penalty that the judge may feel is appropriate. "It's not necessarily an easy way out," he added. REPRESENTATIVE GREEN asked whether that would be understood. REPRESENTATIVE DYSON answered that he believes it is clear, but he offered to research that. He remarked that often the judge will ask the perpetrator whether he or she wants to work on the restitution portion of the penalty. When the judge give the power of law to [the agreement] at the end, generally there will be alternative sanctions: "You're going to pay this money, you're going to fix this, you're going to do these things to get your act together, and so on and so forth; you fail, you go back and [do] three-to-five [years in jail], and otherwise, you've got six months' jail time, a year and a half suspended, and all this work to do to repair your victim." Number 0152 CHAIRMAN KOTT asked whether the victim can be a minor. If so, who would negotiate the settlement if the minor could not do it? REPRESENTATIVE DYSON replied that he had assumed it would be the minor in conjunction with the minor's guardian, whoever that is. or whoever represents that person. It could be the Office of Public Advocacy, he suggested, if assistance were needed. REPRESENTATIVE KERTTULA said that gets back to her concern with the children involved in this. She asked how it plays out and whether Representative Dyson assumes there will be an advocate for the people there. She noted that the legislation doesn't say that. REPRESENTATIVE DYSON replied, "Absolutely. ... They have a right to be represented, and we have a ... responsibility to let them know that they have that right, and provide it if they don't." He emphasized that this regards sentencing. REPRESENTATIVE KERTTULA commented, "But that's usually what my clients really cared about." She asked whether one idea was to have the public advocate, probably, in cases where the public defender is already representing a victim going into this. [Representative Dyson's response was indiscernible.] Number 0228 REPRESENTATIVE CROFT remarked that this is a fascinating approach. Noting that committee packets contained an Anchorage Daily News article, he mentioned that he had talked with Judge Wanamaker. He said there must be ways to create alternatives. Calling attention to Representative Dyson's statement that this is all voluntary, he requested confirmation that the judge would have the power to decide not to use this approach, even if the case fit the statute and the offender and victim were willing. REPRESENTATIVE DYSON said he believes so. REPRESENTATIVE CROFT asked, "If we're just giving them more tools and the sentence can be out there as a hammer, ... what's the problem? What have you heard?" REPRESENTATIVE DYSON said there is a signficant paradigm shift happening, and virtually all traditional societies try to get back to a pre-offense condition. The Tlingits had requested 300 blankets in recompense after an elder had died, for example. Furthermore, Barry Stewart (ph) had related a fascinating story from New Zealand: Elders from two villages met to decide the penalty for rape after the Crown had decided the guilt of the perpetrator; the elders had decided that because the woman was now less desirable in marriage, the perpetrator had to make her so wealthy that she was at least as attractive in marriage as she would have been. Representative Dyson emphasized the desire to try to balance the scales and make the victim whole. Number 0330 REPRESENTATIVE CROFT, speaking in response to Representative Green's question, said Judge Stewart (ph) had described to him the affected community rather than Anchorage. If a school had been vandalized, he suggested, a PTA [Parent Teacher Association] representative might be involved, or a teacher and a student, or members from the nearby area who felt less safe; they could talk about the effects of [the vandalism] in terms of how they felt about the school, for example. Representative Croft indicated that in his limited experience in this, it is both the worst and the best for offenders to meet face-to-face with those they have hurt and to discuss how that can be remedied. "Even if the money they end up getting fined is less, it's much more impactful than simply a $300 fine to the court," he added. REPRESENTATIVE DYSON agreed, adding that people he knows who have done "major time" say they have paid their debt to society by spending time in jail. However, that doesn't help the victim, who is still out there with losses such as hospital bills, as well as terror that person may feel. REPRESENTATIVE CROFT said he isn't sure that helps society much, either. Number 0403 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, came forward to testify on HB 372. She told members that there are some really good ideas and thoughts behind this bill, but the department has serious problems with it; she said she isn't sure whether there might be some common ground but would set out the problems. MS. CARPENETI informed members that in 1970 the Alaska Supreme Court had decided State v. Chaney, which set out several factors that the court must consider when imposing sentence on a defendant; embodied in Alaska's presumptive sentencing law in 1978, those include protection of the public, reaffirmation of societal norms, condemnation of the criminal act and the seriousness of the offense. This bill, however, allows a sentencing judge to ignore most of those and to focus on restoration of the victim and community, and rehabilitation of the offender, which are important goals but not the only goals that the judge should consider. MS. CARPENETI pointed out that this applies to felony offenses. In 1978, the state, through the legislature, adopted a presumptive sentencing scheme; the rationale behind it was a concern by the legislature that although it isn't even desirable to get sentences of equal amounts of imprisonment around the state, or for other terms of sentencing, the belief at the time was that there was too much disparity in sentences for robberies perpetrated in Fairbanks versus Juneau, for example. The idea was to look at what the defendant did and impose a term that gave the sentencing judge discretion to go up or down under certain circumstances, as set forth by the legislature; it evened out some of the "bumps." Ms. Carpeneti noted that there had been concern over discrimination in sentencing and those sorts of issues. That presumptive sentencing scheme has guided Alaska's courts since 1978. She stated: We've worked on ways to give the judge more discretion for certain things, when you have factors in aggravation and factors in mitigation, that the legislature fine-tunes every year. We add them when situations come up that aren't allowed for in the statutes. And this bill really allows a defendant and a victim to negotiate around presumptive sentencing, which has been our law for many years and has worked out to be ... a good scheme. So we have concerns about the way it kind of end-runs presumptive sentencing. MS. CARPENETI informed members that another concern, especially for more serious offenses like felonies, is that a defendant and a victim aren't really in equal bargaining positions. First, a defendant has a lawyer, but this bill doesn't provide a lawyer for a victim. Although the prosecutor acts as the spokesperson for the victim and does his or her best to represent the victim's interests, [the Department of Law] also has at heart the interests of the state as a whole and the people as a whole. Second, in terms of covering felonies, many domestic violence crimes are not in Chapter 41 of Title 11; burglary, criminal trespass, terroristic threatening and arson could be domestic violence offenses that should not be negotiated because the victim and the defendant are not in equal bargaining positions. There are good reasons why our law does not allow negotiation in terms of child custody and divorce, in cases where there has been domestic violence, Ms. Carpeneti said, because a power issue exists "no matter where you are in terms of divorce and representation." Number 0608 MS. CARPENETI also expressed concern about the practicalities of how this would work. Although the bill doesn't say so specifically, it is supposed to apply when a person has been convicted but not sentenced. Suggesting that Representative Kerttula correct her if she were wrong, Ms. Carpeneti said she doubts that it would work in that case, because most defendants are not going to enter a plea of guilty to a charge unless they know what the sentence will be. This would be pre-adjudication negotiations, which would raise all sorts of problems and concerns of cross-examination of the victim, for example. MS. CARPENETI cautioned that this will probably have the effect of allowing defendants of means to get better sentences than those without means. Furthermore, although the sponsor says it applies only to nonviolent property crimes, the bill doesn't say that or limit it to misdemeanors. Ms. Carpeneti suggested perhaps these provisions could be looked at in terms of improving the position of the victim to make his or her case in front of the sentencing judge. She continued: We do have victim impact statements. Victims are statutorily authorized to come into court and make an oral statement. It doesn't even have to be under oath; it can be just a statement. They can do a written statement to the court. They can talk to the Department of Corrections when they're doing presentence reports. There are a lot of provisions already in our statutes that allow the victim to have a voice in what sentence is imposed. We still have a civil compromise statute that this committee looked at last week, in terms of ... our law still allows certain crimes to be civilly compromised if they are misdemeanors. And I think this committee last week fine-tuned that bill so it would not allow any sort of civil compromise for ... any kind of domestic violence case. The court can invite comment by community representatives. There is nothing in our law that prohibits that approach. We have concerns - the same as Representative Green did - about if there is no victim in the crime, who is going to speak for the community? And suppose there are problems in a diverse community with different interests? So those are our basic concerns with this bill. ... It says it's voluntary, but it's not voluntary in the sense that it does allow the court to ignore our jurisprudence for the last 30 years and our sentencing laws that have been working pretty well. Number 0751 REPRESENTATIVE CROFT asked what the Chaney factors are. MS. CARPENETI noted that she had paraphrased them previously. She read from AS 12.55.005, which she said is basically a paraphrasing as well [of the factors that the court shall consider in imposing sentence]: (1) the seriousness of the defendant's present offense in relation to other offenses; (2) the prior criminal history of the defendant and the likelihood of rehabilitation; (3) the need to confine the defendant to prevent further harm to the public; (4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order; (5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct; and (6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms. Number 0800 REPRESENTATIVE CROFT stated his understanding from Ms. Carpeneti's testimony that in addition to those factors, the aggravating and mitigating factors are changed every year or two. MS. CARPENETI responded, "Well, you fine-tune them. ... You add aggravators and you add mitigators." REPRESENTATIVE CROFT noted that the legislature has the power to do that. He asked, "Do we have the power to change the Chaney factors, or are they constitutionally mandated?" MS. CARPENETI said it was a decision of law. REPRESENTATIVE CROFT voiced his understanding that the legislature, in this bill or any other, could change those if, as the policy making body for the state, the legislature decided to do so. MS. CARPENETI said she believes so. REPRESENTATIVE CROFT explained his reason for asking. This provides an option that changes the process, and that may change the factors. He doesn't know whether the sponsor wants to say that the negotiated sentence shall be evaluated by the judge under the Chaney factors or to ensure that it meets those elements, for example, or wants [the legislature] to change one or more of those factors. MS. CARPENETI noted that Article I, Section 12, of Alaska's constitution does set some parameters on sentencing; the Chaney case had elaborated on the constitutional provisions. She added: I think you could go in and modify [AS] 12.55.005 to modify the goals of sentencing, if that was your desire. One thing that I would say is that judges are doing this now. ... There are judges in the Matanuska Valley who are having "circle" sentences. There's nothing in our law that I'm aware of that prohibits this approach to sentencing. But our concern is if you state it in our statutes the way this bill states it, you're going to be allowing negotiations of sentences in cases where nobody anticipates that it's a good idea to do so. Number 0917 REPRESENTATIVE GREEN asked Ms. Carpeneti whether she was present when the sponsor was discussing the fact that this would be voluntary, in addition to normal law, and that it just deals with trying to make the victim whole without abrogating any other penalties that might be applied to the perpetrator. MS. CARPENETI affirmed that she had heard that. Although she thinks that is the intent, she said, she doesn't know whether this bill provides for that. Practically, she would have to give it some serious thought because she is wondering what defendant will enter a plea to a charge without knowing what the sentence is going to be. To her understanding now, there usually is a ceiling on jail time and fines. She added, "I don't know whether restitution is part of it; it probably could be, or it may be. ... So this would not apply to many cases because so many of our cases ... are resolved by plea negotiations." Number 0984 REPRESENTATIVE CROFT indicated he previously had heard concerns from the Public Defender Agency, where the youth court program originated, about that very thing, and yet the youth court later became the biggest proponent of this. These [agreements] were workable in the juvenile context, he said, which has unique issues; it seems to him that they are workable here too. Representative Croft suggested that there could be a process to have that discussion in which, if the negotiation ended in something unacceptable, those admissions cannot be used in court. Or, if the negotiations broke down, the parties would be back where they started. He asked, "Can't we do things like that, as we did in youth court?" MS. CARPENETI answered, "I think we can do that now." She suggested looking at the victim impact statements to make sure that they are broad enough to allow the victim to set forth all of his or her concerns, and what would make him or her whole again. REPRESENTATIVE CROFT responded that there is a big difference between submitting a piece of paper to the judge, as a victim impact statement, and having the opportunity with other members of the community and the offender to negotiate the consequences. He explained: I worry that we tend to look at it as "the way we have always done it is the only way we can do it." And I know that that was the perspective of the [Public Defender Agency]. Until they got in and involved, they were very, very worried about the "traditional rights" approach that was able to be solved in the youth court context. And I worry that we're taking that same "we can't do this 'cause that's not the way we do it" approach. MS. CARPENETI commented that she has that feeling, too, when she takes the position that she is taking. However, she also knows that this is being done on an informal basis throughout the state, where the defendant and victim agree and the judge concurs; there are "circle" sentences where this had been done. She indicated she wasn't against the position that perhaps some procedures or statutes might need to be fine-tuned or changed to recognize this type of practice. In response to further questions, Ms. Carpeneti clarified that she believes it is a good idea in certain cases. However, she doesn't think the state needs to adopt a statute that authorizes a judge to ignore all the tradition of sentencing. Furthermore, she assumes that when judges have decided to do a "circle" sentence, which doesn't happen often, they have taken all the statutory factors into account. Number 1204 CHAIRMAN KOTT referred to Ms. Carpeneti's earlier indication that there may be common ground. He asked, "Can we get from here to there?" MS. CARPENETI said she would be happy to work with the sponsor towards that goal. "I think so," she added. Number 1240 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He commented that this had been a really good discussion. He then spoke in favor of the concept, agreeing there have been some good results in juvenile cases; he mentioned that Robert Buttcane is an expert on this type of process. MR. McCUNE also noted that although a little different, the same process applies somewhat in the mental health courts that both the state and the [federal government] have been working on, in Anchorage, to try to prevent recidivism in mental health cases; he mentioned a special court to addresses those particular [sentences], and said there is quite a lot of victim involvement in those cases as well. He restated support for the concept. MR. McCUNE informed members that this would tend to have a fairly high impact [on his agency] if done as a sentencing tool. However, there are other ways of doing it. For example, in the juvenile system, restorative justice is implemented as a pretrial diversion or a diversion arrangement; the charges are held over someone's head under certain conditions and then dismissed if the juvenile fulfills the conditions that were agreed upon in [victim]-offender mediation. Number 1365 REPRESENTATIVE KERTTULA asked what Mr. McCune believes the fiscal impact will be [on the Public Defender Agency] if this is set up full-scale. She offered her opinion that it would be fairly substantial, although she hadn't seen a fiscal note from the agency. MR. McCUNE answered that the agency hadn't prepared a fiscal note yet. It is hard to say what the impact might be. It is something the judge has discretion about. Also, a lot of offenses are taken off the table, such as all of the offenses against a person, and it involves consent of the offender, by the statute, and also must involve consent of the victim or there wouldn't be any negotiation. Therefore, a fiscal note would be speculative. MR. McCUNE conveyed concern about the fiscal compact, however. He mentioned the drug court; he indicated his agency had determined that if a drug court were set up, quite a lot more involvement would be needed from public defender attorneys than is required under the current system. Mr. McCune expressed hope that the end result would be less recidivism and crime, and less need for public defenders in the long run, which certainly is the goal of this. Noting the lack of hard and fast data about the number of cases and the agency's duties, however, he said his attitude is that this is still in the learning stage. Number 1482 REPRESENTATIVE CROFT asked whether the state could, using the youth court model, hold a presumptive statutory sentence over the perpetrator's head. MR. McCUNE suggested Representative Croft was referring to a pretrial diversion program. He doesn't know whether it would have to be in statute, he said. The Department of Law would have to set that up, as a policy matter, and to agree to administer it and to screen cases. Recalling pretrial diversion in the late 1970s, disbanded around 1980, he said there really hasn't been a formal pretrial diversion "setup" since then. REPRESENTATIVE CROFT responded that he doesn't know that it would have to be a pretrial [diversion] or set up like the youth court model, however, because within the agreed-upon sentence it could say that there is three years' [jail time] suspended, for example, conditioned upon meeting all the other conditions imposed. MR. McCUNE agreed that it can be done in a sentencing situation and doesn't have to be a pretrial diversion. The one "circle" sentencing case he had just read about in the paper was a DWI [driving while intoxicated] sentencing case that wasn't handled through his agency. The defendant did plead "no contest" to the DWI, Mr. McCune noted, and the court set about doing a sentence with the input of community representatives, the victim, the police officer and others involved. Number 1650 REPRESENTATIVE DYSON offered closing remarks. He told members he believes this will save millions of dollars because prisoners who are not a threat to public safety won't be in "hard cells" in Arizona, for example, but will be out working to repay their victims and to help support their families, although they may, indeed, be lodged at a community facility, wearing a bracelet and urinating in a bottle daily. To his understanding, no present sentencing laws and guidelines are removed by this. It only adds another factor to the sentencing guidelines and goals regarding negotiated propitiation of the victim. Suggesting this concept goes back to the Old Testament, he posed as example: Eric kills my cow and does it accidentally, he replaces my cow. If he did it on purpose, he has to replace two cows. ... That gives me a cow back and him an additional penalty. Now our system gives both cows to the government and leaves the victim without a cow. ... It's utterly absurd. ... What we're trying to do is getting back to fixing the harm, repairing the harm. Number 1769 MR. TORKELSON spoke up to add clarification. On page 1, lines 8 and 9, regarding presumptive sentencing, it says "if that sentence otherwise complies with this chapter." He said that is there with the goal of not totally unraveling the presumptive sentencing guidelines and established traditions. In addition, Section 3 is just "one of 17 other mitigating factors" that could be used by a court in figuring out what the correct presumptive term might be; it isn't undoing the presumptive term. He remarked, "So I'm not certain that we're just flushing the last 30 years; that's certainly not the intent when we put it together." As for concern expressed [by Ms. Carpeneti] about who would want to go into a situation where the potential outcome is known, Mr. Torkelson reported that in Vermont one agrees to plead guilty, for example, and then gets the choice of 90 days in jail or taking whatever sentence is negotiated by the "community reparative board." He concluded that there are ways around some of those concerns as well. Number 1882 REPRESENTATIVE DYSON conveyed that he appreciates Representative Kerttula's concern, but if the harm caused were ruining someone's prized old car, for example, the reparation would be to restore it. Doctor bills or counseling bills are quantifiable, he noted. That is the genius of the reparative model. MR. TORKELSON referred to testimony about the Chaney provisions set forth by the supreme court, stated in AS 12.55.005. He told members this adds AS 12.55.011 below that, and doesn't negate or repeal those [factors]. It adds one more thing that the court may consider after - presumably - it has complied with [AS 12.55.]005 in looking at all these other factors. He said that is the intent. Number 1990 REPRESENTATIVE KOTT suggested that clarifying Section 1 by specifically adding in Chaney factors as goals wouldn't be a problem, then, as it is the sponsor's intent to ensure that the goals under Chaney still exist. REPRESENTATIVE DYSON replied, "Absolutely." Number 2026 REPRESENTATIVE CROFT referred to the points made by Ms. Carpeneti that some domestic violence crimes aren't under AS 11.41, and that negotiations between perpetrators and victims are inherently difficult because of the perpetrator's power over the victim. MR. TORKELSON responded by mentioning Representative Dyson's intention of "no violence, no crimes against the person." He stated, "[AS] 11.41 is the standard crime against the persons that we use in ... other factors." Noting that some felonies aren't in AS 11.41, Mr. Torkelson said a domestic violence situation is under AS 11.41, to his belief, if there is any form of battery or assault. REPRESENTATIVE KERTTULA pointed out, however, that domestic violence crimes don't always get charged that way. Trespass is a classic example; there often is domestic violence at the root of it, but the crime charged is trespass. "So you're probably at least going to have to consider ... what the facts of the case are," she said. She added about the legislation, "I really think it's well meaning, but it's just going to be an incredible lot of work to make a change like this, to be sure that you don't cause problems with inequality in sentencing, and that's one of them." REPRESENTATIVE DYSON conveyed the desire for consistency but not "foolish consistency." Particularly in rural Alaska, he noted, there is real pressure to have culturally appropriate sentencing. In northern Canada, much of the restorative justice is working with in rural areas with the First Nations people, with great success; having the perpetrator deal with the elders of the community and the shame brought upon them, and making it right, follows a cultural tradition perhaps several thousand years old. Although it is working well there, Representative Dyson said he doesn't think the same kind of consistency should be enforced in downtown Juneau or Palmer, for example. Number 2278 CHAIRMAN KOTT applauded the idea of the bill, which he said deserves the greatest scrutiny that the committee can give it. He announced that HB 372 would be held over.
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