Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/12/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 64-OMNIBUS CRIME/CORRECTIONS BILL
CHAIR COGHILL announced the consideration of SB 64. He asked
Senator Dyson to summarize the idea of Amendment 1, 28-
LS0116\G.11, which the committee was considering at the end of
the previous hearing.
1:39:30 PM
SENATOR DYSON explained that certain very serious crimes
committed by juveniles are automatically waived to adult court
before the trial. Twenty-four states have amended their laws to
allow a judicial review so the judge can make a decision about
whether or not the extenuating circumstances make the juvenile a
candidate for rehabilitation in the juvenile system. He noted
his intention to offer an amendment to the amendment to exclude
unclassified felonies from the group of crimes that could be
subject to judicial review.
CHAIR COGHILL stated that he was reluctant to include this
matter in the bill, but wanted it thoroughly vetted. He asked
Ms. Carpeneti to provide the Department of Law's perspective.
1:42:24 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, Juneau, Alaska,
expressed appreciation for the cooperative work on the bill and
offered her opinion that in its current form the bill is in good
shape. However, the administration is unable to support proposed
Amendment 1, which would essentially eliminate the auto waiver
for 16 and 17-year-olds who commit very serious crimes.
She said there are two significant interests at work: the
interest of doing society's best to rehabilitate a minor, and
the interest of public safety. While nobody wants to give up on
a minor, some 16 and 17-year-olds commit extremely serious
crimes and the auto waiver statutes were designed to address
them.
1:44:44 PM
SENATOR OLSON joined the committee.
MS. CARPENETI cautioned the committee not to repeal the auto
waiver statutes this way because it leaves open questions going
forward. For example, a question has been raised about who does
the risk assessments that are described in the amendment, and
the Division of Juvenile Justice has said it doesn't have the
authority to do these for juveniles who have been waived into
the adult system. There are also questions about where minors go
to be assessed, and what will happen to them while the issue is
litigated.
She also pointed out that the current drafting of the amendment
would be easier to waive to adult court a person under age 16
who has been charged with murder than it would be to waive
somebody who is 16 or 17. This is an evidentiary issue; for
minors under age 16 who have committed unclassified felonies or
a felony against a person, there is a rebuttable presumption
that they are not amenable to treatment in the juvenile system.
The amendment doesn't address that rebuttable presumption for 16
or 17-year-olds.
CHAIR COGHILL said the idea was that the juvenile would show
that by a preponderance of the evidence he/she could be
rehabilitated. He asked for help understanding how this is
different.
MS. CARPENETI explained that under current law the state has the
burden to prove that a child in not amenable to treatment.
However, for a child under 16 years of age who is charged with
an unclassified or class A felony, there is a rebuttable
presumption that the child is not amenable to rehabilitation.
The proposed amendment does not address that rebuttable
presumption, she said.
SENATOR DYSON countered that it doesn't do away with it so it
stays in its present form.
MS. CARPENETI responded that the amendment doesn't address it at
all for 16 and 17 year olds, which would make it harder to prove
that the juvenile is not amenable to treatment. It's an
evidentiary consideration that should be addressed and is an
example of one of the many things that need to be considered
before changing a procedure like this, she said.
She highlighted that Title 27 already has a procedure called
dual sentencing that in some cases allows the court to impose
both a juvenile sentence and an adult sentence. The person can
be addressed in the juvenile system and depending on how he/she
does, the adult portion of the sentence may or may not be
imposed. This isn't used very often, but it gives a chance to
people for whom there is hope for rehabilitation by age 19 or
20. If it doesn't happen by then, the adult sentence is imposed.
MS. CARPENETI said there are things that could be done to make
the statutes more responsive, but there are too many public
safety concerns to eliminate the auto waiver at this point.
1:51:34 PM
CHAIR COGHILL asked, under this amendment, what crimes would be
charged as a class A felony.
MS. CARPENETI explained that the amendment gives the possibility
of a waiver decision on all cases that are auto waived.
Unclassified felonies include murder, certain cases of sex
trafficking, murder in the first and second degree, sexual
assault, rape, and sexual abuse of a minor in the first degree.
Class A felonies against a person would include attempted rape,
attempted sexual abuse of a minor, manslaughter, and robbery in
the first degree.
The current auto waiver also applies to arson, a class B felony
against a person where the person used a deadly weapon and had
been previously adjudicated delinquent for a similar offense,
and two most serious weapons offenses.
1:53:18 PM
SENATOR MCGUIRE asked if Title 27 is working with dual
sentencing and if there is something that's happening that
lawmakers aren't addressing.
MS. CARPENETI said her point is that dual sentencing may be the
answer in some manslaughter cases. There is some discretion with
plea agreements and new evidence where an auto waived case can
be brought back to juvenile court, but it doesn't happen very
often.
SENATOR MCGUIRE summarized that there is some discretion in
sentencing for the judge to say this is an act of manslaughter
versus an intentional homicide and that person would then be
incarcerated at a juvenile facility.
MS. CARPENETI confirmed that if a person is charged with murder
and convicted of a non-waivable offense, there is a procedure in
statute where the juvenile can ask the court to be moved back
into the juvenile system.
1:56:49 PM
SENATOR DYSON asked her to comment on the attorney general's
statement about no more plea bargaining on some classes of
felonies.
MS. CARPENETI clarified that the policy is no sentence
bargaining for serious offenses, but this doesn't apply if new
evidence shows the state can't prove what was originally
charged.
SENATOR DYSON asked if she's saying that now there will be no
sentencing bargains for felonies.
MS. CARPENETI offered to provide the written policy because it's
just certain felonies.
1:58:04 PM
SENATOR WIELECHOWSKI asked if it would change the
administration's view if unclassified felonies were removed, as
Senator Dyson mentioned.
MS. CARPENETI replied that would be better, but it's preferable
to look at the whole picture.
SENATOR WIELECHOWSKI asked if a child who breaks windows and is
charged with a felony could be auto waived into the adult
system.
MS. CARPENETI replied there is a discretionary waiver statute,
but it probably would never be applied to a property crime.
SENATOR WIELECHOWSKI asked for a list of the class A felonies
that would apply.
MS. CARPENETI paged through the statutes and named the class A
felonies that are crimes against a person: manslaughter, assault
in the first degree, manslaughter of an unborn child, certain
kidnapping crimes, attempted rape, attempted sexual abuse of a
minor, and robbery in the first degree.
SENATOR WIELECHOWSKI said he agrees in concept with the
amendment but worries about where to draw the line. He asked to
hear the history of the auto waiver statute.
CHAIR COGHILL welcomed Ralph Samuels.
2:04:44 PM
At ease.
2:05:12 PM
RALPH SAMUELS, representing himself, Anchorage, Alaska, shared
the tragic story of his brother's murder. Under the waiver
procedure at that time it took six years to determine whether or
not a male who had confessed on video to the execution-style
murder was a juvenile. He said Amendment 1 essentially returns
the law to that state.
He explained the history of the auto waiver statute. In 1993,
former Senator Halford introduced Senate Bill 54 to address the
circumstance of a series of murders and violent offenses that
were committed by young juveniles. It stirred up a lot of
controversy, but it really only affects a very narrow scope of
offenders. The law applies to situations where somebody is hurt
badly or killed by a juvenile.
MR. SAMUELS said the bill received very broad bipartisan support
over the two years it took to pass. The debate points then were
similar to those mentioned now about the probability of
reformation, brain development on teens, and public safety.
McLaughlin Youth Center testified in support of the bill because
they wanted to get rid of the young violent offenders in the
facility who were staying so long that they became role models
for the juveniles who had been adjudicated delinquent for
offenses like selling weed or shop lifting.
He cautioned that it is OPA and the public defender's duty to
zealously defend all their clients. If the option is available
they'll petition to reverse waive, even for the kid who carried
a gun. They may not be successful, but they'll try.
MR. SAMUELS shared that his brother was murdered in his own home
yet the public defender and OPA wrote a letter saying there were
elements of self-defense in the crime. That argument didn't
work, but they tried because it's their role in the system, he
said.
2:11:25 PM
He cited the Alaska Constitution Article 1 Section 12 - Criminal
Administration and Article 1 Section 24 - Rights of Crime
Victims and highlighted that this debate is missing the voice of
the victim and victim's rights organization. He concluded with
the caution that adding this amendment to the bill will cause
the legislation to fail.
CHAIR COGHILL stated that the victim has to be central in any
decision.
SENATOR MCGUIRE expressed appreciation that the Chief Justice
mentioned the legislation that puts a time limit on the
requirement to expedite rulings that favor victims. She also
offered her belief that there ought to be a renewed commitment
by legislators to pass one piece of victim's rights legislation
every year. This would put that constitutional requirement into
practice, she said.
CHAIR COGHILL welcomed Mr. Provost.
2:18:28 PM
CHRIS PROVOST, representing himself, Anchorage, Alaska, said he
worked for the Office of Public Advocacy (OPA) for 22 years and
retired last June. He extended condolences to Mr. Samuels and
expressed outrage that it took six years for the waiver
proceeding. It should take four to six months at most, and the
court is generally very diligent about that, he said. He also
highlighted the Court System reform in the last few years to
consider the comments from victims and victim's advocates when
making a decision about these crimes.
He commented as follows on the points that were raised about
Amendment 1:
· This is not a repeal of the auto waiver statute; it is a
provision for judicial review.
· Minors who are charged with an auto waive crime stay in
adult prison until a determination is made. This is a
concern of the Juvenile Justice Division.
· He questioned the idea that [this amendment would make] it
is easier to waive a juvenile age 15 and younger. The
intention is that the rebuttable presumption that the
juvenile is not amenable to treatment should be part of
this. It may not be in the language but the burden is still
on the juvenile to prove he/she is amenable to treatment by
age 20.
· He questioned the notion that the state has the burden to
prove a juvenile is not amenable to treatment, because the
first paragraph of AS 47.12.100 addresses the only time the
burden would fall on the state to prove that the juvenile
is not amenable to treatment.
· The Department of Corrections has done a very good job of
segregating juveniles who are waived into the adult system.
· He offered his experience that the Department of Law's
policy about no bargaining applies to both plea bargains
and sentence bargains for most cases involving violence
against a person.
· Juveniles can be waived for felony property crimes through
this provision, although it's never used.
· The problem of incorporating these offenses under dual
sentencing is that in order for the adult sentence to be
imposed, the juvenile has to be determined not amenable to
treatment, so the waiver hearing will take place whether
dual sentencing is used or not, just like in discretionary
waiver.
· With regard to the suggestion to remove the unclassified
felonies from the proposed amendment, the practical reality
is that the kids who commit the heinous crimes will get
waived to the adult system.
· He expressed concern about the juveniles who will slip into
the adult system when they're not nearly as culpable as
their, often older, codefendants. These are the kids who go
along with the idea of doing a robbery or burglary, but
have no idea that someone is carrying a weapon.
2:27:34 PM
SENATOR MCGUIRE said she's inclined to believe that this subject
should be addressed in a separate bill. However, she is ready to
look for opportunities to help young people who have made
mistakes to be rehabilitated. She asked if he was undertaking
any efforts, other than the proposed amendment, to help these
youths.
MR. PROVOST described efforts when he worked for OPA to work out
options other than just having a judge review and make a
decision.
SENATOR MCGUIRE suggested he might find more support in the
legislature if he shares some of those ideas.
SENATOR DYSON asked him to discuss why dual sentencing isn't
used.
MR. PROVOST said it's a convoluted statute that's open to
interpretation, and it still involves a hearing before a judge
to determine whether or not the sentence should be imposed.
2:32:34 PM
At ease
2:32:46 PM
CHAIR COGHILL reconvened the meeting and asked Senator Dyson to
speak to Amendment 1.
SENATOR DYSON described his efforts over the years to work on
restorative justice. He related a personal experience from
childhood and asked the committee to consider that sometimes
there are extenuating circumstances for youths who have
committed a heinous crime. He said he appreciates the pushback
and he has no intention of hobbling a good piece of legislation.
CHAIR COGHILL said he agrees with some of what's been said in
defense of the amendment and he's willing to take on the issue,
but it's outside the scope of what he envisions for this bill.
He suggested the sponsor consider withdrawing Amendment 1.
2:38:39 PM
SENATOR DYSON opined that it's not out of line to consider this
matter in this bill. He continued to say that he has begged two
attorneys general, the governor and several others within the
Department of Law to take on the issues of sentencing review,
smart justice, and disproportionate sentencing. It's been to no
avail. He cited statistics to illustrate that the current system
isn't working: 60 percent of the people in prison today are not
violent; there are 2.5-3 times as many Alaska Natives in prison
as any other ethnic group; prisons are overcrowded; Alaska
incarcerates its citizens at the 4th or 5th highest rate in the
nation; and the Justice Forum says Alaska is amongst the worst
states for barriers to reentry. At the current rate, Alaska will
have to build another $350 million prison in six years, and it
doesn't appear that the Department of Law is actively dealing
with this problem. He concluded that DOL's inertia verges on
irresponsibility.
SENATOR DYSON withdrew Amendment 1, 28-LS0116\G.11.
2:42:54 PM
At ease
2:43:25 PM
CHAIR COGHILL moved Amendment 2, labeled 28-LS0116\E.3.
SENATOR MCGUIRE objected for purposes of an explanation.
AMENDMENT 2
OFFERED IN THE SENATE
TO: CSSB 64(JUD), Draft Version "E"
Page 1, line 1, following "offenses;":
Insert "relating to the definition of 'prior
convictions' for certain theft offenses;"
Page 2, line 17:
Delete ", entice,"
Page 5, following line 30:
Insert a new bill section to read:
"* Sec. 12. AS 11.46.295 is amended to read:
Sec. 11.46.295. Prior convictions. For purposes
of considering prior convictions in prosecuting a
crime of theft under AS 11.46.130(a)(6) or
11.46.140(a)(3), or in prosecuting the crime of
concealment of merchandise under AS 11.46.220(c),
(1) a conviction for an offense under
another law or ordinance with similar elements is a
conviction of an offense having elements similar to
those of an offense defined as such under Alaska law
at the time the offense was committed;
(2) a conviction for an offense under
Alaska law where the value of the property or services
for the offense was lower than the value of property
or services for the offense under current Alaska law,
is a prior conviction for that offense; and
(3) the [. THE] court shall consider the
date of a prior conviction as occurring on the date
that sentence is imposed for the prior offense."
Renumber the following bill sections accordingly.
Page 10, line 13:
Delete "of"
Insert "involving"
Page 12, line 1:
Delete "time"
Insert "a day [TIME]"
Page 12, line 3, following "liberty":
Insert "on that day"
Page 12, line 15:
Delete "plan"
Page 12, line 17:
Delete "the director of"
Page 14, line 7:
Delete "and"
Insert "or"
Page 14, line 13:
Delete "by the close of the next business day"
Insert "within 24 hours"
Page 14, line 17:
Delete "(g) of this section"
Insert "this subsection"
Page 21, line 31, following the second occurrence of
"Act,":
Insert "AS 11.46.295, as amended by sec. 12 of
this Act,"
Page 22, line 1:
Delete "sec. 12"
Insert "sec. 13"
Delete "sec. 13"
Insert "sec. 14"
Page 22, line 2:
Delete "sec. 14"
Insert "sec. 15"
Delete "sec. 15"
Insert "sec. 16"
Page 22, line 3:
Delete "sec. 16"
Insert "sec. 17"
Delete "sec. 17"
Insert "sec. 18"
Page 22, line 4:
Delete "sec. 18"
Insert "sec. 19"
Page 22, line 5:
Delete "sec. 19"
Insert "sec. 20"
Delete "sec. 20"
Insert "sec. 21"
Page 22, line 6:
Delete "sec. 21"
Insert "sec. 22"
Delete "sec. 22"
Insert "sec. 23"
Page 22, line 7:
Delete "secs. 1 - 27 and 29 - 34"
Insert "secs. 1 - 28 and 30 - 34"
Page 22, line 8:
Delete "sec. 23"
Insert "sec. 24"
Page 22, line 9:
Delete "sec. 25"
Insert "sec. 26"
Delete "sec. 26"
Insert "sec. 27"
Page 22, line 10:
Delete "sec. 27"
Insert "sec. 28"
Page 22, line 11:
Delete "secs. 1 - 27 and 29 - 34"
Insert "secs. 1 - 28 and 30 - 34"
Page 22, line 12:
Delete "secs. 1 - 27 and 29 - 34"
Insert "secs. 1 - 28 and 30 - 34"
Page 22, line 16:
Delete "sec. 30"
Insert "sec. 31"
Page 22, line 18:
Delete "sec. 30"
Insert "sec. 31"
Page 22, following line 19:
Insert a new bill section to read:
"* Sec. 35. The uncodified law of the State of
Alaska is amended by adding a new section to read:
TRANSITIONAL PROVISIONS: REGULATIONS. (a) The
Department of Corrections may adopt regulations
necessary to implement AS 33.05.020(f) and (g), added
by sec. 26 of this Act.
(b) The board of parole may adopt regulations
necessary to implement AS 33.16.060(c), added by sec.
27 of this Act, and AS 33.16.150(b), as amended by
sec. 28 of this Act.
(c) The regulations adopted under (a) and (b) of
this section take effect under AS 44.62
(Administrative Procedure Act), but not before July 1,
2014."
Renumber the following bill section accordingly.
Page 22, line 20:
Delete "sec. 28"
Insert "sec. 29"
Page 22, following line 20:
Insert new bill sections to read:
"* Sec. 37. Section 35 of this Act takes effect
immediately under AS 01.10.070(c).
* Sec. 38. Sections 1 - 28 and 30 - 34 of this Act
take effect on July 1, 2014."
CHAIR COGHILL summarized that Amendment 2 provides mutually
acceptable language for the Nygren credit, and the balance is
the cleanup language that was discussed during the previous
hearing.
JORDAN SHILLING, Staff, Senator John Coghill, explained that the
first change is to the title. The second change removes the term
"entice" from Senator Wielechowski's amendment. The next change
clarifies that changing the felony theft threshold does not
affect prior offenses. Next, the phrase "crimes of domestic
violence" is changed to "crimes involving domestic violence."
The next change clarifies that it does not jeopardize credit for
the entire treatment program if a person for some reason spends
a day doing something that is not for rehabilitative purpose. It
only affects that day. Next, the terms "plan" and "the director
of" were removed to provide flexibility for the Nygren credit.
The next change is a wording preference changing "and" to "or."
Then to tighten the reporting requirement for the 24/7 program,
terminology was changed from "by close of next business day" to
"within 24 hours." The change on page 14, line 17, is a wording
preference. Page 21, line 31, ameliorates a drafting error and
adds burglary and criminal trespass into the applicability
statutes. Finally, a new section says the Department of
Corrections can start working on regulations immediately.
2:47:41 PM
SENATOR MCGUIRE removed her objection.
SENATOR COGHILL announced that without further objection,
Amendment 2 is adopted.
2:48:12 PM
SENATOR MCGUIRE moved to report Version E CS for SB 64, as
amended, from committee with individual recommendations and
attached fiscal note(s).
SENATOR DYSON thanked the Chair and Senator Ellis for their work
on the Sentencing Commission.
CHAIR COGHILL thanked the committee (Senator Dyson in
particular), Senator French and Senator Ellis.
Finding no further objection, he announced that CSSB 64(JUD) and
forthcoming fiscal notes moved from the Senate Judiciary
Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Version E.pdf |
SJUD 2/12/2014 1:30:00 PM |