Legislature(1999 - 2000)
03/27/2000 01:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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." He noted that there was a new proposed committee substitute (CS), Version D. Number 1910 REPRESENTATIVE GREEN made a motion to adopt the proposed CS for HB 372, version 1-LS142\D, Luckhaupt, 3/8/00, as the working document before the committee. There being no objection, it was so ordered and Version D was before the committee. PETER TORKELSON, Staff to Representative Dyson, Alaska State Legislature, explained that Version D attempts to address several concerns raised when the bill was previously before this committee. One concern surrounds whether the bill may create a situation in which a victim goes into negotiation with an offender when the situation isn't conducive to a real negotiation. Version D addresses this in two ways. First, on page 1, line 6, the language "with the consent of the victim" was inserted to make it clear that the victim must consent to the process from the beginning. Second, on page 1, lines 10-12, a new sentence was inserted that reads as follows: "Before accepting a negotiated agreement, the court shall determine that the victim has not been unduly influenced or intimidated in reaching the agreement." Although experience in other states has shown that courts are very sensitive to this, Mr. Torkelson said, it was felt that it would be best to be clear. MR. TORKELSON noted that there was also concern that this bill might circumvent the presumptive sentencing guidelines that are specified. To his understanding, presumptive sentencing applies to unclassified felonies, class A felonies and second-time [class] B or C felonies. He specified that by saying that no violations of AS 11.41 would be considered for this, the intent is that no person-to-person violent crime is ever to be considered. Therefore, it eliminates most of the presumptive sentencing [issues]. Regarding concerns that this bill would undo the "Chaney doctrine," he directed the committee to the language on page 1, lines 8-9, which read, "if that sentence otherwise complies with this chapter". He said that sentence should cover some of those concerns because this is a simple, optional addition that the court may consider in the appropriate circumstance. MR. TORKELSON informed the committee that since this bill was last heard, the Chief Justice had referred, in his State of the Judiciary [address], to restorative justice and a program that is currently happening, at the impetus of the court system, in what is called "circle" sentencing. The Chief Justice had mentioned Magistrate Jackson (ph), who has utilized "circle" sentencing in approximately 20 cases and has seen some benefits to that program. Mr. Torkelson stressed that this is happening now. The sponsor feels that this is an important enough issue that the legislature should make a statement endorsing an effort in this direction, he said, in order to determine whether it is worth pursuing. Number 2141 REPRESENTATIVE GREEN asked whether this [legislation] is viewed - by the sponsor or any of the attorneys to which he has spoken - as compromising any types of alternative sentencing or victims' rights. MR. TORKELSON answered that restorative justice is sort of a culmination of a number of movements in the criminal justice system for some time; victims' rights is an issue that the legislature had dealt with not many years ago. This legislation is actually the next step, in a sense, in victims' rights in that it allows the victim, in the right situation and if everyone consents, to sit down with the offender. Experience in other states has shown that following these experiences, offenders often are less likely to reoffend and victims feel that they can start down a path towards a normal life again. Mr. Torkelson said to the sponsor's belief, part of the state's role is to "service" the victim as well as the offender. He referred to Representative Green's question and said no, this is actually the next step and an ultimate form of recognition of the rights and the voice of the victim. Number 2341 REPRESENTATIVE KERTTULA asked whether [Mr. Torkelson and the sponsor] had thought of using this model for just misdemeanors or alcohol-related crimes to begin with. Most of her own concerns relate to using it in the "felony setting," she noted, and she is glad to see assaults no longer included because there is an inequitable situation there that is hard to sort through. Suggesting that Anne Carpeneti could comment, she conveyed her understanding that presumptive sentencing isn't just for assaults but goes across a panoply of burglaries, breaking and entering, and theft. She acknowledged that people who have had something stolen from them may feel just as violated. She noted that the magistrate discussed by the Chief Justice had done this mostly for misdemeanors and alcohol-related crimes. MR. TORKELSON responded: We've had considerable discussion with the Department of Law and amongst ourselves about this. We are aware that the Department of Law still objects to the bill primarily for that reason, the felony issue. ... There are a number of felonies that could potentially fall under this that are non-person-to-person type of crimes, property crimes, that would [be classified] as a felony; ... if you steal more than $500, that's a felony. And in our discussions, the sponsor just isn't really willing to give that up, in the sense that we've cut out the person-to-person crimes, and if you write a bad check for $505 with intent to defraud, then this should maybe still ... apply to you. Again, we are, to some degree, relying on the court's discretion. If it's a particularly egregious crime, if it's a multiple offender, we certainly don't expect a judge to invoke this type of process where we all sit down and talk about it. ... We're really relying on the judge ... in these types of cases. The sponsor isn't really willing to back down on that for a couple specific reasons: one, other states have had some success with these property-type-crime felonies - there's not really a hard-and-fast line between the people ... that this will work for and not, just based on that $500 mark - and also because we have been made aware that it is happening now; even though it wasn't specifically stated by ... the Chief Justice, there are some what we call less egregious felonies that, for instance, the youth court may deal with. And we don't want to make a bill that says, ... specifically, from the policy making body, "You should not be doing that," because they're taking it very slow and very easy, and they're taking just a few of these mild felonies into account now, and we really don't want to say that they shouldn't, because the sponsor believes that if the court feels it's appropriate, then they should think about this. So, ... we understand that the department will still oppose it for that reason. And that's where we part ways, I guess. Number 2341 REPRESENTATIVE KERTTULA asked, "Have you thought about nonpresumptive felonies, first time, and limiting it to that? Have you had that discussion." MR. TORKELSON said that was actually an idea put forth informally and discussed. "My boss indicated that he liked it the way it [the bill] was," he added. Number 2360 REPRESENTATIVE GREEN said he hadn't seen what AS 11.41 says, but Mr. Torkelson had indicated that it is being put in to avoid the problem with presumptive sentencing. MR. TORKELSON clarified: We're avoiding most of the things. When you think of presumptive sentencing, some ... ax murderer goes out and kills somebody, we want that guy to serve 20 years. [AS] 11.41 is person-to-person crime. And so, that's most of the things you think about when you think of, ... "Get this guy." That's covered in [AS] 11.41. There are some other crimes that would be felonies, ... a second-time property crime, that would fall under presumptive sentencing. But, again, the bill says "if the sentence otherwise complies with this chapter." So we shouldn't be undoing that. Number 2392 REPRESENTATIVE KERTTULA asked whether her recollection is accurate that the sponsor's intent was not to include domestic violence cases. She emphasized that cases other than those in AS 11.41 might involve domestic violence, including trespassing cases, which many times are classic domestic violence cases in disguise. She asked whether Mr. Torkelson believes that the sponsor would be amenable to some language like "an offense other than a violation of 11.41 or where domestic violence is alleged." MR. TORKELSON answered: We did talk some about that. We looked at some different language, and we started getting pretty verbose in trying to define ... what types of things could and couldn't. Certainly, if there's any assault involved, we would be out of that because that's 11.41. The sponsor felt like, again, we are relying so much on the courts to determine, for instance, in a family case, the very child custody and things, that we really have to rely on them to implement this, and we have to rely on them to realize when a victim -- first of all, the victim would have to consent. Number 2445 REPRESENTATIVE KERTTULA pointed out the need for a little more protection there for that particular crime, in terms of just recognizing that often domestic violence isn't charged as an assault. "I've seen some pretty scary cases that were charged as trespass," she explained, "and that's the problem. You've got all the facts there, but the victim may not even be willing to come forward. ... And then the victim sometimes will consent because of fear, as well." She suggested perhaps asking Ms. Carpeneti from the Department of Law or Ms. Hugonin to speak to that briefly regarding some kind of language that could be added. MR. TORKELSON replied: I would just, for the sponsor's sake, point [out] that we have the two clauses in there we believe would address that. One is the consent of the victim, which -- we don't know whether someone would be - it's impossible to see that - if they would be ... somehow consent when they didn't really want to consent. And then, also, a specific finding that the court would determine that the victim has not been unduly influenced or [intimidated]. So ... we've tried to draw some safeguards on that. TAPE 00-39, SIDE B Number 0010 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage, noting that he had testified in favor of the bill previously. Although he hadn't seen the latest version, as described by Mr. Torkelson it makes sense to him to have the language "with the consent of the victim" on line 6, he said. Furthermore, although he believes that the courts are "pretty clued in" to any undue influence, if the committee feels that [language to protect against that] should be included, the agency doesn't have any problem with that. MR. McCUNE restated earlier comments that there have been good experiences with restorative justice in the juvenile justice system, even for offenses such as burglaries where young people have gone into a home and stolen coins, for example, although maybe not for the most serious of burglaries. He said those things can be adjusted for a first-time offender, if the case is screened properly through a victim-offender mediation process, which he indicated is done by a nonprofit organization and approved by the juvenile intake authorities. He expressed hope that this can translate into adult court, at least to some extent. He concluded, "I think the court has a lot of discretion in that they may do it or may not. But ... these restorative justice processes have been tried ... in this state and other states, as well, and they've produced some really good results." Number 0099 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, came forward to testify. She informed members that her organization hadn't had an opportunity to speak with the sponsor about the bill. However, they would have concerns with only limiting the exclusion to AS 11.41; instead, they encourage the committee to consider adding crimes involving domestic violence as defined in AS 18.66.990. MS. HUGONIN explained that there is a list of domestic violence crimes in the statutes that are outside of AS 11.41; that list includes burglary, criminal trespass, arson, criminal mischief, terroristic threatening, violating a domestic violence protective order or harassment. There are several scenarios in which it is dangerous to put victims in a situation of having to consent to do something in the courts. Often it is in a victim's best interest to take seriously the threat that a perpetrator poses and to try to mitigate that potential in any way possible. "Usually, that means giving up a lot of their rights or access to the court," Ms. Hugonin said. MS. HUGONIN told members that the legislature has recognized this difficulty, and the domestic violence Act of 1996 included very tight parameters around mediation. She expressed hope that the legislature would treat this current issue with the same seriousness. If there is a protective order is in place, she noted, mediation is not allowed to take place; it is only allowed in limited circumstances after a judge has explained to the victim that the victim doesn't have to agree to the mediation. Ms. Hugonin restated her request that the committee consider adding [to the exclusions] crimes involving domestic violence as defined in AS 18.66.990, which would include all the domestic violence crimes. REPRESENTATIVE KERTTULA thanked Ms. Hugonin for providing the cite. Number 0208 CHAIRMAN KOTT also thanked Ms. Hugonin and called an at-ease at 2:10 p.m. He called the meeting back to order at 2:17 p.m. CHAIRMAN KOTT announced that during the intermission there had been discussion about adding language on line 6 after "AS 11.41" that would say "or involves domestic violence as defined in [AS] 18.66.990." REPRESENTATIVE KERTTULA asked whether the word "crimes" was included. MS. HUGONIN proposed that it say "a crime involving domestic violence as defined in [AS] 18.66.990." REPRESENTATIVE GREEN concurred. CHAIRMAN KOTT restated the proposed amendment: "[AS] 11.41 or a crime involving domestic violence as defined in [AS] 18.66.990." He informed listeners that in addition, on lines 11 and 12, the amendment would strike the words "unduly influenced or" and insert the phrase "or coerced" after "intimidated". Therefore, it would read: "has not been intimidated or coerced in reaching the agreement." He asked whether there was any objection to that as an amendment. There being no objection, Chairman Kott announced that the foregoing was [adopted as] Amendment 1. CHAIRMAN KOTT asked whether anyone else wanted to testify on the bill. He closed testimony and asked the wishes of the committee. Number 0287 REPRESENTATIVE GREEN made a motion to move CSHB 372 [Version D], as amended, from committee with individual recommendations and the attached indeterminate fiscal note. CHAIRMAN KOTT added that the bill has the support of the Public Defender Agency, which is unusual. He asked whether there was any objection. There being no objection, CSHB 372(JUD) was moved from the House Judiciary Standing Committee.
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