Legislature(1995 - 1996)
05/03/1995 01:43 PM Senate 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 38 SENTENCING;3RD SERIOUS FELONY OFFENDER
PATTY SWENSON, staff to Rep. Bunde, sponsor of the measure,
described HB 38. The bill provides a 40-99 year prison sentence
for third-time class A felons. Discretionary parole and good time
sentence reductions would not be available to those offenders,
however they could request, from the court, a reduction in sentence
after they have served the greater of one-half of their definite
term or 30 years. HB 38 gives the prosecutors some discretion in
the decision to pursue third-strike sentencing to avoid unjust
results in certain cases where the evidence may be weak. The bill
also allows prosecutors some flexibility to proceed with normal
presumptive sentencing provisions when necessary. The legislation
is crafted to keep costs to a minimum.
Number 225
BARBARA BRINK, Deputy Public Defender, offered the following
insight into the impact of HB 38 on the Public Defender Agency.
HB 38 creates a class of defendants that can be subjected to a 40-
99 year mandatory term. Because it is without the possibility of
parole, or a good-time provision, the bill creates the most severe
penalty available in the states. Increased litigation will result,
increasing costs to the Public Defender Agency in the following
three ways. First, a person charged with a third-strike felony
will want to go to trial. Unlike the Department of Corrections,
which anticipates a fiscal impact down the road, the Public
Defender Agency will be severely impacted immediately. Second,
because of the consequences, these trials will involve extended
investigations, lengthy trials, and expert witnesses. These cases
will require the most skilled and experienced litigators and
therefore the most expensive attorneys. Before a case can go to
trial, the Public Defender Agency will have to do a collateral
attack: it will have to scrutinize the prior strikes of the
defendant to ensure constitutional validity. That will require
review of volumes of material from previous cases. If any of the
prior convictions were out-of-state, travel will be required, as
well as contractual expenses, and appearances in court in other
states if court action is necessary there. For the prior strike to
count, the felony would have to have been committed in Alaska,
there must have been a plea or constitutionally valid trial, and
there must have been competent counsel. Third, more felony
convictions will end up in trial, since nobody will want a first
strike on their record: increased litigation will also arise in the
first and second strikes.
MS. BRINK continued. Currently 94 percent of all felony cases
result in retrial. Even a single trial is an extreme drain on
resources. For the District Attorney's Office, law enforcement,
courts, judges, clerks, bailiffs, juries, etc., a single trial can
consume weeks of time. The system is not capable of allowing every
single criminal defendant to go to trial. With the three-strike
law, the system would collapse upon itself. Plea bargaining
results in convicts serving long jail sentences without the need
for a trial. Three-strikes legislation has been used in other
states without success. In California, the legislation has been on
the books for one year and is straining the criminal justice system
to the point of deadlock. It is clogging court calendars and
forcing fewer prosecutions of other crimes. Previously in
California, 90 percent of all felony cases were plea-bargained; now
the number is less than 14 percent. The California three-strike
law is broader than HB 38, the third strike can be any felony
offense, however the California experience illustrates that the
policy makers that passed the legislation consistently
underestimated the impact the legislation would have. The
expansion of HB 38, from 40-99 years, means that more cases will be
filed than anticipated. Prosecutors tend to save 99 year sentences
for the worst cases. Under HB 38, the prosecutor has to decide by
arraignment in Superior Court whether it is a three-strike case.
With violent crime rates lower, and little or no growth in the
overall crime rate over the past two decades, the impetus for HB 38
needs to be examined. The largest number of inmates are 18-24 year
old males, without high school diplomas, and unemployed. Education
and prevention methods need to be discussed as alternatives.
Number 353
SENATOR TAYLOR announced the committee would move the calendar back
to confirmations, since Senator Miller arrived. SENATOR GREEN
moved the Senate Judiciary confirmation report be sent out of
committee with individual recommendations. There being no
objection, the motion carried.
Number 370
BRANT McGEE, director of the Office of Public Advocacy, concurred
with Ms. Brink's testimony. He reiterated that each case will go
to a lengthy trial and will not be subject to charge or plea
bargaining. Prior convictions will be attacked by the defense in
an attempt to eliminate a prior felony conviction. The financial
impact on the Office of Public Advocacy will be substantial since
it is likely the Public Defender Agency will be representing many
of these people.
SENATOR TAYLOR asked if the Public Defender Agency will have the
choice of whether to make a collateral attack, if issues are
available on previous convictions, or to plea bargain instead.
MR. McGEE answered under Title 18 and the Rules of Professional
Conduct, the Public Defender Agency is required to represent
zealously any defendant whose case it is given by the court system.
The Public Defender Agency must do what is best for the client, and
a collateral attack will be one of the only ways to relieve the
burden of the punishment. Frivolous attacks will not be pursued,
but to determine whether a collateral attack is frivolous would
require an exhaustive review of the prior felony case.
Number 410
SENATOR TAYLOR stated he wanted, for the record, an explanation of
the options available under this legislation, from people working
in the field. He expressed concern that people who complain the
Public Defender Agency is clogging up the courts assume the Agency
has a choice in how to represent the defendant.
MR. McGEE clarified the Public Defender Agency attorneys do not
have any choices if they want to continue to practice law in
Alaska. They have a constitutional and ethical responsibility to
do whatever they can for their client. SENATOR TAYLOR asked if an
attorney would be disbarred for not doing whatever he/she could.
MR. McGEE replied a second lawyer would be hired to attack the
first lawyer's performance, the costs skyrocket, and the courts are
tied up even longer.
Number 442
REPRESENTATIVE CON BUNDE provided the following testimony. HB 38
will cost money, but those costs are to protect citizens. The
preference of the Public Defender Agency to plea bargain serious
offenses, and allow those people back out on the streets, has
created the revolving door problem. HB 38 allows for prosecutorial
discretion, and will only be used in the most serious of cases. He
discussed the discrepancy in the projected number of cases by
different agencies, and in the fiscal notes. Supporters of the
issue are willing to pay the price to keep the most violent felons
off the street. They are not capable of being rehabilitated, and
have been in the system twice already for five to fifteen years.
As existing laws apply, they would go to jail for another 12 1/2
years for a third conviction. As the Department of Corrections'
fiscal note indicates, there would be no fiscal impact for that
time period since those offenders would be in jail during that time
anyway. About 250 people are in jail for third felony convictions,
and about 150 are in jail for subsequent felony convictions. He
questioned the expense of letting these people back into society.
Habitual criminals take a substantial amount of money out of the
public coffer, at the expense of the public. That expense does not
include the human tragedy they cause.
Number 486
SENATOR TAYLOR commented his concern is that the legal systems in
California and Washington State are breaking down because of this
legislation. The result may be that fewer people would be
prosecuted because of a lack of district attorneys. Prison
overcrowding is already problematic.
REPRESENTATIVE BUNDE reminded Senator Taylor that HB 38 is very
different from the California and Washington laws. SENATOR TAYLOR
noted the bill limits the provisions to class A felons, and has a
ten year time limit, which are commendable provisions. However, he
indicated professionals in the criminal justice system have no
choice in the matter, since it removes discretion from the
prosecutor and defender in the ability to bargain.
Number 509
REPRESENTATIVE BUNDE responded the bill does allow for
prosecutorial discretion, in that prosecutors are allowed to pick
and choose the cases that are appropriate. SENATOR TAYLOR asked if
there would be significant restrictions placed on prosecutors when
choosing. REPRESENTATIVE BUNDE stated he believes the discretion
would lie solely with the prosecutor as to whether the evidence and
severity of the case warrants this charge. The prosecutor is
limited by the type of crime when applying this sanction. After
reviewing the case, the prosecutor would notify the court the
habitual offender option was being sought.
Number 526
SENATOR TAYLOR applauded Rep. Bunde for introducing the
legislation, as it is a necessary tool, although he is concerned
the ramifications of the bill are not yet understood. He added the
idea is not new, most Western states had a habitual criminal law on
the books for years and almost all of those states rejected that
law. Many of the reasons for rejection were corrected in HB 38.
Number 536
MARGOT KNUTH, Assistant Attorney General, stated the Department of
Law favors the concept of treating repeat offenders more harshly,
however the fiscal consequences of HB 38 are considerable. Section
15 removes the good time provision. The Department of Law believes
there are two advantages to "good time." First, it motivates good
behavior; its elimination will be a disincentive to cooperative
behavior. Second, the amount of time accumulated under good time
upon release, is time the person is under supervision by the
Department of Corrections. This supervision cannot exist unless
there has been some credited time. The supervision is a good way
to reintroduce a parolee into society. For those reasons, the
Department of Law would propose that Section 15 not be adopted.
Number 566
SENATOR TAYLOR asked Ms. Knuth if she found anything in Ms. Brink's
or Mr. McGee's testimony she would disagree with, from her
experience. MS. KNUTH answered she did not; and agreed HB 38 will
prompt more defendants to go to trial because he/she would have
nothing to lose by doing so, and that it will require collateral
attacks on prior felonies.
Number 586
SENATOR TAYLOR asked Ms. Knuth to describe how an attorney would
attack a conviction that had been established and firm for five
years. MS. KNUTH stated the attorney would file a special pleading
that initiates a new case, the purpose of which is to review the
case for constitutional violations that may have occurred in the
course of the prosecution. If any violations did exist, there
would be a basis for vacating that conviction. A bill introduced
by the Governor puts some restraints on repeat re-examinations of
what the public considers to be final convictions.
SENATOR TAYLOR gave the following example. A defendant pleads
guilty to a second felony offense, and after serving the sentence,
is picked up on another felony charge seven years later. The
current attorney notes the defendant is Mexican, does not speak
English very well, and was held in jail for three days. The
attorney will challenge the prior conviction based on the
defendant's Miranda rights.
TAPE 95-29, SIDE B
SENATOR GREEN asked if the Department of Law is assuming the "good
time" provision would provide an incentive for good behavior for a
third time felon. MS. KNUTH commented it is true that even a third
time offender with a 50 year sentence believes that "good time"
behavior will lessen the sentence by one-third.
SENATOR TAYLOR stated he disagrees with the "good time" concept as
it was invented to free up prison space. At a sentencing course at
a judges' college he attended, with international participants,
sentencing procedures were compared. In Australia a 20 year
sentence means the prisoner will serve 20 years; if prisoners
misbehave, their sentences are extended. In Alaska, prisoners are
unpunished by early release, for crimes they already committed.
Number 557
REP. BUNDE agreed with Senator Taylor's assessment of the "good
time" provision, and noted that a person convicted of sexual abuse
of a minor could serve as little as five years and be out on "good
time." The notion that the parole system is successful is a
misperception. These people are psychopaths and need to be
isolated from the general population so that more people are not
victimized.
SENATOR TAYLOR asked for an estimate of the difference between
current sentences for third time class A felons, and the sentence
that would be received under HB 38. REP. BUNDE affirmed the
average sentence for a third time serious felon is 12 1/2 years.
Under HB 38, the convict would serve at least one-half, or 30
years, of the 40 - 99 year sentence.
MS. KNUTH added the 12 1/2 year sentence is correct if a person is
convicted of a single class A felony offense which has a maximum
term of 20 years. Usually these defendants have committed multiple
offenses with a series of consecutive sentences. The group most
likely to fit within the parameters of HB 38 are serving 30 or more
years already through consecutive sentencing on multiple
convictions.
SENATOR TAYLOR asked if that is why the fiscal note from the Dept.
of Corrections is as low as it is. MS. KNUTH replied
affirmatively. SENATOR TAYLOR asked if HB 38 would only apply to
prospective felons. REP. BUNDE answered HB 38 has a ten year
retroactive clause.
Number 522
SENATOR GREEN asked on which conviction for those convicts
currently serving long sentences, the sentence was imposed (the
third or greater than third). MS. KNUTH explained it is on several
convictions entered at the same time for a third time offender.
There may be multiple victims, typically a sex offender commits
several offenses before they are apprehended and charged. If
convicted on all charges, part of the sentences are consecutive.
SENATOR GREEN clarified it may be the person's first appearance in
court but that person has been accused of several crimes.
SENATOR TAYLOR referred to the retroactive clause on page 8 and
clarified it only is retroactive for 10 years. REP. BUNDE added it
only applies to three separate class A felony convictions,
therefore it would not apply to a person convicted of raping three
people as one charge. He stated a person convicted at the age of
25 would be free at age 45, under current law, yet research shows
a person in their 60's is less inclined to violence.
Number 482
SENATOR TAYLOR discussed a case in Florida in which a 17 year old
youth plea bargained and received a 44 year sentence for a first
offense. He was one of the people who shot the German tourists.
The choice was to plea bargain and serve 44 years, or be prosecuted
under the felony murder rule and face the death penalty.
Number 464
MARGARET BERCK, representing the American Civil Liberties Union
(ACLU), gave the following testimony. The ACLU is opposed to HB 38
for several reasons. This approach would be costly and is not the
best use of limited expenditures in the criminal justice system.
In response to comments made by previous witnesses, regarding a
potential increase in the number of trials, she noted a previous
client she represented chose to go to trial last December to
prevent a "strike" in anticipation that HB 38 might pass. ACLU
believes judges should have independence in judging individuals
that come before them, to allow judges to take into account
individual qualities when fashioning a sentence. HB 38 will cause
greater resources to be applied to a smaller group of people.
Aside from the increase in the number of trials, plea bargaining
may be used to obtain an offense that would not be considered a
"strike." She discussed another client who had prior felony
convictions, although not class A felonies, who was sentenced to 61
years, with 20 years suspended. She commented HB 38 essentially
sets up a very specific category of offenders and suggests
mandatory sentencing ranges for those individuals, and may allow
defense attorneys to argue for lesser sentences for other serious
offenders. HB 38 may apply to other bodies of case law in
unforeseen ways. She discussed the provision which prevents
sentence modification unless one-half or 30 years of the term is
served. She discussed a case of a terminally ill prisoner and
explained HB 38 would preclude a judge from allowing relief in such
a case.
Number 357
SENATOR TAYLOR noted that provision is in Section 6, and commented
the result of deleting that section would be the deletion of the
one-half or 30 year provision, therefore a language change would be
necessary. The intent would be to allow the court to make a
discretionary choice for extraordinary circumstances. MS. BERCK
stated she made her motions under Alaska Criminal Rule 35B.
SENATOR TAYLOR asked Ms. Berck her opinion of the "good time"
provision. MS. BERCK stated she would support providing inmates
with motivation to comply with rules and regulations within the
correctional setting, however she hoped a judge would take into
account the "good time" allowance when determining the length of a
sentence, or consecutive sentences.
Number 296
SENATOR GREEN questioned the solution to repeat offenders who
continue to commit serious crimes, if the three strikes approach is
not used. MS. BERCK noted this approach spends a large amount of
money on a small segment of offenders, albeit serious offenders.
The increase in crime is caused by the young male population, and
she feels tougher sentences initially, for crimes of a less serious
nature, might be a successful alternative.
Number 248
JERRY SHRINER, Special Assistant with the Dept. of Corrections,
discussed the department's zero fiscal note. He pointed out that
given the best of circumstances, if offenders were able to be
released at the end of 30 years, the population covered by this
bill would reach 450 people in 30 years. That number is higher
than current prison capacity in the state. Under current
sentencing practices, the same number of people will be in prison
in 12 1/2 years, as that number tends to remain constant. The
increase under HB 38 to 450 inmates in 30 years would be in
addition to other increases in the prison population that may
occur. A 450-bed medium to maximum security prison would cost at
least $80 million in current dollars to construct, and $10-$12
million per year in operating costs.
MR. SHRINER continued. Mandatory sentencing law studies have been
conducted in several states and have yielded the following
conclusions. In Delaware, with respect to drug and violent crimes,
incarcerating repeat offenders has had no effect on the rise in the
crime rate. Other factors are fueling the increase in crime. The
Pennsylvania Commission on Correctional Planning has recommended
all mandatory laws be repealed in favor of sentencing guidelines,
to give more flexibility to judges to consider individual
characteristics. In Oregon, a plan was adopted that recommended
that any new programs focus on probation, parole, and intermediate
sanctions. The Campaign for an Effective Crime Policy, a national
organization comprised of 750 justice and correctional experts,
concluded the streets are not any safer as a result of mandatory
sentencing, and that the cost-effectiveness of incarcerating repeat
offenders, from any perspective, is questionable. In states that
have studied their mandatory sentencing laws, they have studied
them from the standpoint of rising crime rates despite the
incarceration of more habitual criminals. They also extended the
studies to determine to what extent those sentences act as a
deterrent to committing a crime. While 65 percent of offenders
noted they were well aware of mandatory sentencing prior to their
offense, only 25 percent actually considered it when making the
decision to commit the crime.
Number 157
SENATOR TAYLOR asked Mr. Shriner to contact John Rees, of the
Corrections Corporation of America. That corporation owns the
correctional facility in Arizona that Alaska has contracted with.
The 500 bed facility took 5 1/2 months to complete at a cost of $14
million. He stated it would make no sense to build a prison in
Alaska for $80 million. He asked Mr. Shriner what the cost of
housing inmates at Spring Creek is. MR. SHRINER replied it cost in
excess of $100 per day, per prisoner. He pointed out state
facilities in Arizona cost $43 per day, and private facilities cost
$59 per day.
SENATOR TAYLOR moved the adoption of a conceptual amendment that
would allow for judicial discretion to release prisoners under
unusual circumstances (as proposed by Ms. Berck), in Section 6,
page 3. There was objection to the amendment. The motion failed
with Senators Green, and Miller voting "nay," and Senator Taylor
voting "yea."
SENATOR TAYLOR moved a second amendment suggested by MS. KNUTH, to
delete Section 15. SENATOR GREEN objected to the motion. The
motion failed with Senators Green and Miller voting "nay," and
Senator Taylor voting "yea."
SENATOR MILLER moved CSHB 38 (JUD)am out of committee with
individual recommendations. There being no objection, the motion
carried.
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