Legislature(1999 - 2000)

04/19/2000 02:15 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
          HB 372-CRIMINAL SENTENCING AND RESTITUTION                                                                            
                                                                                                                                
REPRESENTATIVE FRED DYSON, sponsor of HB 372, explained that                                                                    
virtually all justice systems have traditionally focussed on                                                                    
restoring the victim to a pre-offense condition.  In biblical                                                                   
times, if a cow was killed, the community would come together and                                                               
require that the owner of the cow be compensated.  In this country,                                                             
a movement back to a restorative or reparative justice system is                                                                
occurring.  HB 372 is a small step that puts in statute language                                                                
that permits judges to allow perpetrators of non-violent crimes to                                                              
negotiate reparations for the community or for the victim which the                                                             
judge can use as part of the offender's sentence.                                                                               
                                                                                                                                
Number 819                                                                                                                      
                                                                                                                                
DEAN GUANELI, Assistant Attorney General with the Criminal Division                                                             
of the Department of Law (DOL), agreed with Representative Dyson                                                                
that the current process of awarding restitution to victims has                                                                 
problems, however he does not believe HB 372 addresses the key                                                                  
issues.  HB 372 is unfair to victims and it is unfair to other                                                                  
defendants.  In addition it contains uncertain procedures.                                                                      
                                                                                                                                
MR. GUANELI said first of all, putting victims in a position to, in                                                             
essence, plea bargain with the defendant over the sentence puts the                                                             
victim in an unequal bargaining position.  Defendants have a right                                                              
to counsel, and if they cannot afford one, counsel is appointed for                                                             
them.  Victims may not have a lawyer therefore they could be taken                                                              
advantage of by defense attorneys who know the law and procedures.                                                              
Nothing will be gained by the victim when negotiating directly with                                                             
the defendant.   Defense attorneys are likely to tell the victims                                                               
if they agree to a lesser sentence, they will get paid the full                                                                 
amount of restitution.  Although the bill contains a provision that                                                             
addresses coercion or intimidation, defense attorneys will simply                                                               
be using good negotiating tactics.                                                                                              
                                                                                                                                
MR. GUANELI maintained that HB 372 will create a series of                                                                      
uncertain procedures.  When the defendant reaches an agreement with                                                             
the prosecutor over a plea, it is presented to the judge.  If the                                                               
judge does not accept the agreement, the defendant is allowed to                                                                
withdraw his plea and the case goes to trial.  The agreement could                                                              
be held over the victim's head by the defense attorney who might                                                                
say if the victim does not agree, the case will go to trial.  It                                                                
raises the spectre of putting the victim in a position of having to                                                             
plea bargain without being aware of all of the laws and rules of                                                                
procedure.  It also raises questions about the role of the                                                                      
probation office in presenting pre-sentence reports to the court.                                                               
                                                                                                                                
MR. GUANELI commented that the additional thing about creating a                                                                
mitigating factor in which a defendant can make a deal with the                                                                 
victim  allows defendants with money to buy their way out of jail                                                               
time.  He noted that the Senate has passed SB 4 which creates an                                                                
office of victim advocacy. HB 372 will have a large impact on that                                                              
agency as victims will most likely get representation from it.                                                                  
                                                                                                                                
MR. GUANELI suggested the following changes to improve the existing                                                             
system.  AS 12.55.005 contains a list of factors that the court is                                                              
supposed to consider when imposing a sentence.  A factor about                                                                  
restoration of the victim and the community could be included.                                                                  
That would force judges to consider restoration of the victim but                                                               
it would not put the victim in the position of actually having to                                                               
plea bargain.  The factors in the statute then will find their way                                                              
into the appelate opinion.  If the sentencing courts do not                                                                     
adequately take the factors into consideration, the appelate court                                                              
has sentencing review authority so the sentence can be disapproved.                                                             
Second, in imposing restitution, the court can require compensation                                                             
in some form other than money.  Some judges make restitution a                                                                  
condition of probation so that if the offender does not pay, he or                                                              
she could be put back in jail.  That only works for the duration of                                                             
the probation period, however.   He suggested making the order of                                                               
restition a condition of probation and a condition of the sentence.                                                             
That way, if the restitution is not paid before the probation                                                                   
period ends, the order of restitution can be reduced to a civil                                                                 
judgment and enforced by the victim.  He indicated that by placing                                                              
the condition of sentence in statute, all judges would use it.                                                                  
                                                                                                                                
MR. GUANELI informed committee members that he had a list of his                                                                
suggestions which could easily be put in an amendment format.                                                                   
                                                                                                                                
Number 1338                                                                                                                     
                                                                                                                                
SENATOR HALFORD noted that the title of HB 372 is broad enough to                                                               
amend almost anything into it.  He asked Representative Dyson how                                                               
he felt about the proposed amendment.                                                                                           
                                                                                                                                
REPRESENTATIVE DYSON said he has not yet seen the list of                                                                       
suggestions which disturbs him.  He thought they sounded good.                                                                  
                                                                                                                                
MR. GUANELI indicated the suggestions were given to Representative                                                              
Dyson's staff earlier today.                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR suggested that Mr. Guaneli meet with Representative                                                             
Dyson to discuss a proposed amendment.  He noted that as a district                                                             
judge he has seen victims hold defendants hostage.  He thought HB
372 provides for victims' allocution rights and for enforcement                                                                 
rights that the court can give to victims.  He noted that                                                                       
representatives of womens' shelters throughout the state expressed                                                              
concern about negotiations between partners in domestic violence                                                                
cases.                                                                                                                          
                                                                                                                                
REPRESENTATIVE DYSON pointed out that the crime of domestic                                                                     
violence and other crimes of violence were left out of the bill for                                                             
that very reason.  HB 372 only applies to the sentencing phase and                                                              
it allows, not mandates, the judge to allow negotiations.                                                                       
                                                                                                                                
CHAIRMAN TAYLOR noted in a majority of cases, sentencing occurs at                                                              
arraignment.  Only in a felony case will there be some delay in the                                                             
sentencing process.                                                                                                             
                                                                                                                                
REPRESENTATIVE DYSON said this weekend a restorative justice                                                                    
conference is being held in Anchorage and he will be attending one                                                              
in Washington, D.C. in May.  Most of the judges in Alaska see this                                                              
as an opportunity to protect the rights of the victim.  Many judges                                                             
are referring cases to mediation which is done in a very controlled                                                             
environment where the victim's rights are looked after.                                                                         
                                                                                                                                
CHAIRMAN TAYLOR announced the committee would put the bill aside                                                                
for a short time while Representative Dyson and Mr. Guaneli discuss                                                             
a proposed amendment.                                                                                                           
           HB 372-CRIMINAL SENTENCING AND RESTITUTION                                                                           
                                                                                                                                
MR. PETER TORKELSON, legislative aide to Representative Dyson,                                                                  
informed committee members that he and Representative Dyson sat                                                                 
down with representatives from DOL.  Representative Dyson is not                                                                
opposed to incorporating Mr. Guaneli's proposed amendment into HB
372.  He believes DOL intends to replace HB 372 with the proposed                                                               
amendment which Representative does not support.                                                                                
                                                                                                                                
Amendment 1 reads as follows.                                                                                                   
                                                                                                                                
                      A M E N D M E N T  1                                                                                      
                                                                                                                                
OFFERED IN THE SENATE                        DEPARTMENT OF LAW                                                                  
     TO:  CSHB 372(FIN)am                                                                                                       
                                                                                                                                
*Section 1.  AS 12.55.005 is amended to read:                                                                                   
                                                                                                                                
          Sec. 12.55.005.  Declaration of purpose.  The purpose of                                                              
this chapter is to provide the means for determining the                                                                        
appropriate sentence to be  imposed upon conviction of an offense.                                                              
The legislature finds that the elimination of unjustified disparity                                                             
in sentences and the attainment of reasonable uniformity in                                                                     
sentences can best be achieved through a sentencing framework fixed                                                             
by stateute as provided in thie chapter.  In imposing sentence, the                                                             
court shall consider                                                                                                            
     (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;                                                             
     (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                                                               
     condemnationn of the criminal act and as a reaffirmation of                                                                
     societal norms; and                                                                                                        
               (7)  the restoration of the victim and the community.                                                            
                                                                                                                                
*Sec. 2AS 12.55.045(f) is amended to read:                                                                                      
                                                                                                                                
     (f) If a court proposes to order a defendant to pay                                                                        
     restitution under this section of more [LESS] than $5,000, and                                                             
     the defendant's sentence includes [DOES NOT INCLUDE] a period                                                              
     of unsuspended incarceration exceeding 90 days, the court may                                                              
     take into account at the time of sentencing the defendant's                                                                
     present and future ability to pay the restitution proposed.                                                                
     The court shall presume that the defendant has the ability to                                                              
     pay the amount proposed unless the defendant at the sentencing                                                             
     hearing establishes by clear and convincing [A PREPONDERANCE                                                               
     OF THE] evidence the inability to pay the amount proposed.                                                                 
                                                                                                                                
*Sec. 3  AS 12.55.045 is amended by adding new subsections to read:                                                             
                                                                                                                                
     (I)  An order of restitution made under this section is a                                                                  
     condition of the defendant's sentence and, in cases in which                                                               
     the court suspends all or a portion of the defendant's                                                                     
     sentence, the order of restitution is a condition of the                                                                   
     suspended sentence.  If the court suspends imposition of                                                                   
     sentence under AS 12.55.085, the order of restitution is a                                                                 
     condition of the suspended imposition of sentence.                                                                         
                                                                                                                                
                                                                                                                                
SENATOR ELLIS expressed support for adding the amendment to the                                                                 
bill.                                                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR noted the proposed amendment contains the word                                                                  
"may" so it does not mandate anything.                                                                                          
                                                                                                                                
SENATOR ELLIS moved to adopt Amendment 1 as an addition to the                                                                  
legislation.  There being no objection, the motion carried.                                                                     
                                                                                                                                
SENATOR ELLIS moved SCS CSHB 372(JUD) from committee with                                                                       
individual recommendations.  There being no objection, the motion                                                               
carried.                                                                                                                        

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