Legislature(2005 - 2006)CAPITOL 120

02/02/2005 01:00 PM JUDICIARY


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01:13:10 PM Start
01:14:29 PM Therapeutic Courts Alaska Court System & Partners for Progress
01:45:31 PM SB56
02:14:33 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview: Therapeutic Courts TELECONFERENCED
AK Court System & Partners for Progress
Bills Previously Heard/Scheduled
+= SB 56 CRIMINAL LAW/PROCEDURE/SENTENCING TELECONFERENCED
Heard & Held
*+ HB 88 OFFENSES BY MINORS/AGAINST TEACHERS TELECONFERENCED
<Bill Hearing Postponed to Fri. 2/4/05>
+= HB 41 ASSAULT ON SCHOOL EMPLOYEES TELECONFERENCED
<Bill Hearing Postponed to Fri. 2/4/05>
SB 56 - CRIMINAL LAW/PROCEDURE/SENTENCING                                                                                     
                                                                                                                                
1:45:31 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be CS FOR  SENATE BILL NO. 56(JUD), "An Act  relating to criminal                                                               
law and procedure, criminal sentences,  and probation and parole;                                                               
and providing  for an  effective date."   [CSSB 56(JUD)  had been                                                               
amended twice on 1/31/05.]                                                                                                      
                                                                                                                                
REPRESENTATIVE  ANDERSON   moved  to  report  CSSB   56(JUD),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying fiscal notes.                                                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL said  he  still had  questions about  the                                                               
bill.                                                                                                                           
                                                                                                                                
The committee took an at-ease from 1:46 p.m. to 1:49 p.m.                                                                       
                                                                                                                                
1:49:51 PM                                                                                                                    
                                                                                                                                
CHAIR   McGUIRE  noted   that  at   the  bill's   prior  hearing,                                                               
Representative Gara had  made a motion to adopt  Amendment 3 but,                                                               
because of time constraints that day, had withdrawn it.                                                                         
                                                                                                                                
1:50:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA  again made  a motion  to adopt  Amendment 3,                                                               
labeled 24-LS0308\L.1, Luckhaupt, 1/28/05, which read:                                                                          
                                                                                                                                
     Page 4, lines 10 - 17:                                                                                                     
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 24, line 4:                                                                                                           
          Delete "Sections 1, 4, 6, 26, and 29 - 31"                                                                            
          Insert "Sections 1, 4, 6, 25, and 28 - 30"                                                                            
                                                                                                                                
     Page 24, lines 5 - 6:                                                                                                      
         Delete "Sections 2, 3, 5, 7 - 25, and 27 - 28"                                                                         
         Insert "Sections 2, 3, 5, 7- 24, and 26 - 27"                                                                          
                                                                                                                                
     Page 24, line 7:                                                                                                           
          Delete "secs. 8 - 21"                                                                                                 
          Insert "secs. 7 - 20"                                                                                                 
                                                                                                                                
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
                                                                                                                                
1:50:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA stated that a  judge can increases a sentence                                                               
based  on the  "Chaney criteria"  [statutory guidelines  based on                                                             
the  1970 Alaska  Supreme Court  case,  Chaney v.  State].   With                                                             
Amendment  3, Representative  Gara said,  judges are  required to                                                               
explain their  sentencing decisions, and it  gives defendants the                                                               
right to  file an appeal  if they  think their sentences  are too                                                               
long.   He said that  if the legislature  takes out the  right to                                                               
appeal,  "this bill  is going  be here  next year."   He  said he                                                               
thinks it is a constitutional issue.                                                                                            
                                                                                                                                
1:53:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  referred to lines  11-13 on page  4 and                                                               
said that it says that a  sentence reviewed by an appellate court                                                               
may not  be reversed as  excessive, adding that he  believes this                                                               
does not  take away the right  to appeal.  It  limits the court's                                                               
discretion  to  render  a   decision,  which  therefore  violates                                                               
Article IV,  Section 2, of  the Alaska State  Constitution, which                                                               
makes  the supreme  court the  highest court  in the  land.   One                                                               
cannot have  the judicial power of  the state in a  court when it                                                               
is denied the right to reverse  a sentence as excessive.  That is                                                               
a limitation on  the judicial power of  the state, Representative                                                               
Gruenberg stated.  He also said  it is contrary to Rule 520(c) of                                                               
the Alaska Rules  of Appellate Procedure, which  gives the courts                                                               
full power  to reverse a decision.   He said, therefore,  that he                                                               
supports amendment 3.                                                                                                           
                                                                                                                                
1:55:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   COGHILL   said   the   constitution   says   the                                                               
jurisdiction of  the courts should  be prescribed by law,  and he                                                               
thinks, "one of the things that  we've done in the legislature is                                                               
give  sentence prescription,  and  if  you want  to  call that  a                                                               
limitation  on the  court, that  certainly  is; this  is just  an                                                               
extension of that prescription."   He said he thinks the language                                                               
in  the  bill  wouldn't  be  challengeable  constitutionally,  so                                                               
Representative Coghill said he will vote against Amendment 3.                                                                   
                                                                                                                                
CHAIR  McGUIRE announced  that  the  committee's packet  contains                                                               
arguments   for  and   against  Amendment   3,  and   noted  that                                                               
Legislative  Legal  and  Research Services  reported  that  other                                                               
states that have  a similar prohibition against  appeals based on                                                               
excessiveness have  been upheld.   Chair  McGuire said  there are                                                               
good arguments on both sides,  and predicted that the debate will                                                               
continue.   She said  she will oppose  the amendment  because she                                                               
thinks an important prerogative of  the legislature is to be able                                                               
to  set mandatory  minimum  sentences for  certain  crimes.   She                                                               
added that  she would  prefer to have  aggravators in  place, but                                                               
separate trials are costly, and it  is necessary to draw the line                                                               
somewhere.  She  said there are some lawmakers who  would like to                                                               
simply raise  the minimum sentence,  but she said she  feels more                                                               
comfortable with giving  the courts a range.  If  the bill allows                                                               
for  appeals based  on  excessiveness, there  will  be an  appeal                                                               
"every single time."                                                                                                            
                                                                                                                                
2:00:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG responded  to Representative  Coghill's                                                               
points  and  said  that  even   if  Representative  Coghill  were                                                               
correct, it would  only apply to the court of  appeals and not to                                                               
the  supreme  court.   Representative  Gruenberg  added  that  he                                                               
looked at the  two states where Chair McGuire said  a similar law                                                               
was upheld, and  he countered that those laws  are very different                                                               
from what Alaska  is doing.  He said that  the Washington statute                                                               
limits the defendant's ability to  file an appeal, and the Kansas                                                               
statute  limits  the court's  jurisdiction  in  the legal  sense.                                                               
That is  "not at all  what this bill  does; this bill  limits the                                                               
court's  power  to  issue  a judgment  of  reversal,  and  that's                                                               
different from a jurisdictional issue," he said.                                                                                
                                                                                                                                
2:02:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA  said  he  does  not  want  to  argue  about                                                               
constitutionality  because the  committee cannot  determine that,                                                               
and he wants  to point out that he thinks  determining a range is                                                               
acceptable.    Amendment  3  does  not  alter  that;  instead  it                                                               
requires judges to  explain to the public what they  did and why,                                                               
he  said.    Representative  Gara said  he  doesn't  always  have                                                               
complete trust  in judges, and  the whole  point of the  court of                                                               
appeals is  to keep the  law consistent.   Making a  judge defend                                                               
his or her decisions makes the system more credible.                                                                            
                                                                                                                                
2:05:01 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE   said  she  thinks   there  are  two   issues  in                                                               
Representative  Gara's  amendment,  and she  recommends  that  he                                                               
consider bifurcating it  if it fails.  She said  she is much more                                                               
sympathetic to his requirement of findings.                                                                                     
                                                                                                                                
REPRESENTATIVE  ANDERSON recapped  Chair McGuire's  comments, and                                                               
asked Representative Gara to respond.                                                                                           
                                                                                                                                
REPRESENTATIVE GARA said  Amendment 3 leaves the law  the same as                                                               
it is  today, and the people  who have the right  to appeal today                                                               
will have that  right tomorrow.  He said he  agrees that there is                                                               
abuse  of the  appeal process,  but people  with good  appeals as                                                               
well as bad appeals file.   He said that by eliminating the right                                                               
to appeal, both  groups of people will be punished,  and it would                                                               
protect all  judges regardless of  whether they are doing  a good                                                               
job.   "By taking away  the right  to appeal from  everybody, you                                                               
are going to  uphold sentences that shouldn't  have been issued,"                                                               
he said.                                                                                                                        
                                                                                                                                
2:07:50 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE   responded  that  under  the   current  system  a                                                               
defendant  knows that  if sentencing  goes above  the presumptive                                                               
because of  an aggravating  factor, the  likelihood of  appeal is                                                               
less.   The  reason for  pairing  the appeal  exclusion with  the                                                               
range is the  "human tendency to say 'if there's  a range of four                                                               
to seven, and I get anything  more than four, I'm mad about it.'"                                                               
She  remarked   that  all  of  Representative   Gara's  arguments                                                               
standing alone make sense, but it  is the package that causes her                                                               
concern.  She  said that Section 7, puts  "downward pressure," on                                                               
the sentencing,  and she  reiterated her  belief that  anyone who                                                               
gets  more years  than  the  bottom of  the  range  will want  to                                                               
appeal.                                                                                                                         
                                                                                                                                
2:09:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA said those were  good points.  However, going                                                               
back to the  premise of the bill, he remarked,  the Department of                                                               
Law (DOL)  said it did not  want to change the  average sentences                                                               
in  the  state,   but  that  it  wanted  to  abide   by  the  new                                                               
constitutional ruling.  Representative  Gara said he believes his                                                               
amendment would do that -  keep Alaska's sentencing guidelines as                                                               
similar to  current guidelines as  allowed.  He opined  that this                                                               
bill changes sentencing  for every crime, and  if the legislature                                                               
wants to do that, it should consider each crime individually.                                                                   
                                                                                                                                
2:10:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  spoke   on  incarceration  costs,  and                                                               
suggested that  it would save the  state money when an  appeal is                                                               
won.  He  added that judges make  "occasional mistakes," sentence                                                               
appeals are inexpensive,  and a few successful  appeals can "save                                                               
the state a significant amount of money."                                                                                       
                                                                                                                                
The committee took an at-ease from 2:12 p.m. to 2:14 p.m.                                                                       
                                                                                                                                
[SB 56, as  previously amended, was held over with  the motion to                                                               
adopt Amendment 3 left pending.]                                                                                                

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