Legislature(2005 - 2006)BUTROVICH 205

01/18/2005 08:30 AM JUDICIARY

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08:33:56 AM Start
08:37:44 AM SB56
10:21:55 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
            SB 56-CRIMINAL LAW/PROCEDURE/SENTENCING                                                                         
8:37:44 AM                                                                                                                    
SENATOR THERRIAULT,  prime sponsor  of SB  56, told  members that                                                               
Heather Brakes  would give an overview  of the bill and  then DOL                                                               
and DOC would speak to specific sections of the bill.                                                                           
MS. HEATHER BRAKES,  staff to Senator Therriault, said  SB 56 was                                                               
drafted in  response to a  U.S. Supreme  Court ruling in  June of                                                               
2004 that  has affected  Alaska's sentencing  structure. Alaska's                                                               
presumptive  sentencing scheme  was developed  in the  1970s. The                                                               
current system  limits judicial discretion  to a  single definite                                                               
term  unless  the  judge finds  that  aggravating  or  mitigating                                                               
factors exist, allowing for departure  from the set term. In June                                                               
of  2004,  the  U.S.  Supreme  Court struck  down  the  State  of                                                               
Washington's   sentencing   structure,  which   is   functionally                                                               
equivalent to Alaska's law, as  unconstitutional. The court found                                                               
that  under the  Sixth Amendment,  a defendant  has the  right to                                                               
have  a  jury,  not  the  judge,  determine  whether  aggravating                                                               
circumstances exist  to justify  increasing a sentence  above the                                                               
statutorily prescribed  term. The Blakely v.  Washington decision                                                               
has  created confusion  for  the Alaska  Court  System and  other                                                               
states. SB  56 will  make it  easier for  judges to  consider all                                                               
factors  in sentencing  and  to impose  probation  in all  felony                                                               
cases.  It  will make  probation  supervision  more effective  by                                                               
giving police  greater arrest authority over  probationers. Chair                                                               
Seekins and Senator Therriault drafted  SB 56 in conjunction with                                                               
CHAIR SEEKINS disclosed that his son  works for Ms. Parkes at DOL                                                               
as an assistant district attorney in Fairbanks.                                                                                 
MS.  SUSAN PARKES,  Deputy Attorney  General, Criminal  Division,                                                               
Department of  Law (DOL), told  members the Blakely  decision has                                                               
created  turmoil in  several states.  She  appreciated the  quick                                                               
introduction  and hearing  of  SB 56.  DOL believes  SB  56 is  a                                                               
balanced approach to the Blakely problem.                                                                                       
MS.  PARKES gave  the following  history  of Alaska's  sentencing                                                               
scheme. Pre-1970,  Alaska had open sentencing,  which gave judges                                                               
wide-open  discretion for  sentencing.  The  legislature found  a                                                               
large disparity  among sentences  for the  same crime  across the                                                               
state existed;  therefore presumptive sentencing  was introduced.                                                               
The  legislature   decided  to  create  a   presumptive  sentence                                                               
presumed to be the appropriate  sentence for the typical offender                                                               
committing  the  typical  offense.   The  legislature  wanted  to                                                               
provide  some  flexibility  to  individualize  sentences.  That's                                                               
where  the  aggravators  and  mitigators  came  in.  Judges  make                                                               
findings on  aggravators and mitigators  by clear  and convincing                                                               
evidence. The  aggravators and mitigators are  clearly defined in                                                               
statute and judges are not required to use them.                                                                                
MS. PARKES  told members  the current system  has worked  well to                                                               
remove sentencing disparities. A  1999 felony sentencing study by                                                               
the Alaska  Judicial Council found  that all disparities  in non-                                                               
presumptive ranges have  decreased. DOL is proposing in  SB 56 to                                                               
keep  the  best  parts  of  the  current  system,  do  away  with                                                               
disparity,  provide  judges  with flexibility,  and  comply  with                                                               
Blakely in a balanced way that  will not eat up Alaska's criminal                                                               
justice resources.                                                                                                              
8:44:49 AM                                                                                                                    
MS. PARKES referred  to a chart and said that  instead of one set                                                               
appropriate sentence,  SB 56  proposes a range  that a  judge can                                                               
use without  having to find  aggravators or  mitigators. Alaska's                                                               
presumptive scheme is fairly simple  compared to other states; it                                                               
is based on one criterion  - prior felony convictions. A sentence                                                               
can be  increased for a sex  felony with prior sex  offenses, use                                                               
of a weapon, or for  causing serious physical injury. Essentially                                                               
it is  based on  prior felonies.  She described  how to  read the                                                               
chart; the bolded language is the range being proposed.                                                                         
8:46:01 AM                                                                                                                    
MS. PARKES said that to go  beyond the range, aggravators must be                                                               
noticed by  the state  and presented  to a  trial jury.  The jury                                                               
must find  aggravators beyond a  reasonable doubt. The  judge has                                                               
the discretion to impose an increased sentence.                                                                                 
Mitigation  remains the  same under  SB 56  and Blakely.  A judge                                                               
still  has the  discretion to  make findings  on mitigators  with                                                               
clear and  convincing evidence and  decide whether to  reduce the                                                               
sentence  below  the proposed  presumptive  range.  DOL hopes  to                                                               
maintain flexibility for the judge.  Taking aggravators to a jury                                                               
trial  will be  more resource  intensive.  SB 56  will avoid  the                                                               
grand  jury  requirement.  Currently,  to  indict  for  a  felony                                                               
offense in Alaska,  one must go to a grand  jury. One judge ruled                                                               
that aggravators  must go to the  grand jury as well.  SB 56 only                                                               
requires notice to  the defense before trial. A  grand jury often                                                               
happens early in a case when aggravating factors are unknown.                                                                   
8:48:34 AM                                                                                                                    
MS.  PARKES  said the  next  change  pertains  to the  fact  that                                                               
currently  there are  no presumptive  sentences for  first felony                                                               
offenders for B  and C felonies, and only for  people with priors                                                               
and  for  class  As  and unclassifieds.  For  uniformity,  SB  56                                                               
proposes  a presumptive  range for  people  convicted of  B or  C                                                               
felonies without priors. Some people  have expressed concern that                                                               
by creating these ranges, sentences  will be increased across the                                                               
board. One  concern is that  judges will automatically go  to the                                                               
top of  the range.  DOL proposed ranges  starting at  the current                                                               
presumptive  level   and  going  up  because   mitigation  hasn't                                                               
changed. She has not had that  experience with judges and that is                                                               
not DOL's  intent. DOL's  intent is  to maintain  the flexibility                                                               
that judges currently  have in being able  to increase sentences.                                                               
If that is  of concern to the committee, DOL  will work on intent                                                               
language  that  says  it  is  not  the  legislature's  intent  to                                                               
increase sentences across  the board but to  maintain the current                                                               
system in a way that complies with Blakely.                                                                                     
8:50:48 AM                                                                                                                    
MS.  PARKES  said another  highlight  in  the  bill is  an  added                                                               
statutory aggravator in Sec. 19.                                                                                                
CHAIR SEEKINS specified that the  committee is working on version                                                               
MS. PARKES  referred to page  15 and  said that aggravator  31 is                                                               
based on a  prior criminal history of  misdemeanors. The question                                                               
is  if the  legislature decides  to create  presumptive sentences                                                               
for  first  felony  offenders,   should  someone  with  no  prior                                                               
felonies  but  a  lengthy  history  of  misdemeanors  be  treated                                                               
differently than someone  with no prior criminal  history at all.                                                               
Aggravator  31  recognizes that  a  lengthy  criminal history  is                                                               
defined as 5  or more class A misdemeanors and  allows a judge to                                                               
aggravate the sentence if appropriate.                                                                                          
MS. PARKES described the other proposed changes as:                                                                             
     On section  2, page 2, regarding  periodic sentencing -                                                                    
     currently judges can  impose periodic sentencing, which                                                                    
     can be a  nightmare for DOC, i.e.,  a one-year sentence                                                                    
     could be  served on weekends only.  This creates safety                                                                    
     and paperwork  problems. In  this section,  the ability                                                                    
     to  allow periodic  sentencing would  be  limited to  a                                                                    
     situation where  a judge was  authorized to  order such                                                                    
     sentencing.  It must  be for  an employment  obligation                                                                    
     that  pre-existed to  sentencing and  that will  create                                                                    
     extreme hardship and prevent  the defendant from paying                                                                    
     fines or restitution. Judges  have been giving periodic                                                                    
     sentencing  for  employment,  illnesses,  funerals,  or                                                                    
     births to the point where  people come and go, creating                                                                    
     a  hardship  for  DOC.  The  legislature  may  want  to                                                                    
     restrict this  provision further to sentences  that are                                                                    
     of a certain length.                                                                                                       
     Section  6(a)(7) on  page 4  - currently,  judges often                                                                    
     delegate to  probation officers  the ability  to impose                                                                    
     appropriate   probation  conditions   as  circumstances                                                                    
     change.  Someone may  be sentenced,  do 3  or 4  years,                                                                    
     then   be  on   probation.  Circumstances   can  change                                                                    
     dramatically for that person  once he/she is on parole.                                                                    
     Since the judge won't  know the appropriate conditions,                                                                    
     he/she will delegate authority  to a probation officer.                                                                    
     A recent  Court of Appeals decision  questioned whether                                                                    
     judges   have  legal   authority   to  delegate.   This                                                                    
     provision would  codify that practice and  allow judges                                                                    
     to  have  that  flexibility.  She  deferred  to  Deputy                                                                    
     Commissioner Parker for further explanation.                                                                               
The last  substantive change  is in  Sections 26,  30, and  31 on                                                               
pages 19 and 23. A recent  Court of Appeals opinion was issued in                                                               
Rickle v State.  That case involved a situation  during which the                                                               
City of  Homer police officers  were doing  a bar check  in Homer                                                               
and  saw  a felony  DUI  convict  in a  bar  that  was either  on                                                               
probation or  parole. They knew  that person  should not be  in a                                                               
bar.  The  police  officers  detained   the  person,  called  his                                                               
probation officer and confirmed that  he was on parole. They were                                                               
authorized to arrest the person for  a parole violation and did a                                                               
pat down  search, during  which they  found cocaine  and arrested                                                               
him.  The Court  of Appeals  found the  police did  not have  the                                                               
authority to  do an initial  stop and detain to  investigate. DOL                                                               
believes   it  is   appropriate  for   a  police   department  to                                                               
investigate  possible parole  violations.  This  change allows  a                                                               
police department  to stop if  there is reasonable  suspicion; if                                                               
probable cause  of probation conditions  exists, the  police have                                                               
the authority to arrest that person.                                                                                            
8:58:43 AM                                                                                                                    
MS. PARKES said the Blakely  problem required changes be made for                                                               
parole  and probation,  so those  changes are  addressed in  this                                                               
CHAIR SEEKINS asked if Section  30 gives a parole officer without                                                               
a warrant the ability to also  arrest a parolee for violation and                                                               
whether that exists now.                                                                                                        
MS.  PARKES said  yes  but  it does  not  exist  now for  certain                                                               
8:59:33 AM                                                                                                                    
SENATOR  THERRIAULT asked  how the  court would  have the  police                                                               
officer handle  such a situation  and whether the  police officer                                                               
would just  report to the parole  officer that the person  was in                                                               
the bar and let the system handle it.                                                                                           
MS. PARKES said yes. The court  ruled the police could not detain                                                               
based only  on the belief that  the parolee should not  have been                                                               
in a  bar. The  parole officer  would have had  to file  a parole                                                               
violation and made an arrest at a later time.                                                                                   
9:00:12 AM                                                                                                                    
SENATOR THERRIAULT asked  if the police had picked  him up, would                                                               
they have  to follow the  same procedures for  questioning anyone                                                               
and in the meantime check with the parole officer.                                                                              
MS.  PARKES  said  yes.  Right  now  police  officers  must  have                                                               
reasonable suspicion to stop and  investigate. They would have to                                                               
follow the same procedures under the bill.                                                                                      
SENATOR THERRIAULT  asked if  the defendant  would have  the same                                                               
right to remain silent and request legal counsel.                                                                               
MS. PARKES said absolutely.                                                                                                     
9:01:00 AM                                                                                                                    
SENATOR GUESS said  the opinions issued by the  Supreme Court two                                                               
weeks ago  on mandatory sentencing  and guidelines  are difficult                                                               
to understand.  She asked if  the mandatory  sentencing provision                                                               
in SB 56 could conflict with the latest Supreme Court decision.                                                                 
MS. PARKES said those decisions  were very confusing. The Supreme                                                               
Court's FanFan-Booker decisions looked  at the federal sentencing                                                               
guidelines  and   how  Blakely   affected  them.   That  decision                                                               
consisted  of 125-pages  of  majorities,  dissents, joinings  and                                                               
not-joinings. DOL  does not  believe that  ruling affects  SB 56.                                                               
The  federal sentencing  guidelines  are significantly  different                                                               
from the way Alaska's presumptive  sentencing is set up. They are                                                               
much more complicated and require  more factual findings from the                                                               
judge  to get  the  defendant on  the grid.  For  the most  part,                                                               
Alaska's grid  is based essentially on  prior felony convictions.                                                               
The court is clear  that the judge can still make  that kind of a                                                               
finding. The factual findings beyond  prior convictions require a                                                               
jury.  She believes  the upshot  of  the FanFan-Booker  decisions                                                               
were  that  the  federal  guidelines  would  be  voluntary.  They                                                               
ordered judges  to consult  them but judges  are not  required to                                                               
follow them.                                                                                                                    
9:03:25 AM                                                                                                                    
SENATOR GUESS said  Section 6 was described  as codifying current                                                               
practice. She  asked if  any literacy/communication  issues might                                                               
arise if  new conditions are  put on  a probation officer  when a                                                               
parolee is not English proficient.                                                                                              
MS. PARKES  deferred to Deputy  Commissioner Parker but  said the                                                               
proposal  indicates  the  additional  condition  be  provided  in                                                               
writing  to the  defendant.  She presumed  the probation  officer                                                               
would talk to a defendant to  make sure the conditions are clear.                                                               
She recognized that  concern and explained that to  enforce a new                                                               
condition,  there  must be  a  finding  that the  person  clearly                                                               
understood it.                                                                                                                  
CHAIR SEEKINS asked Ms. Parkes to standby for future questions.                                                                 
9:05:20 AM                                                                                                                    
MS.   PORTIA   PARKER,   Deputy   Commissioner,   Department   of                                                               
Corrections (DOC), said she would  expand on sections that affect                                                               
the  DOC.  Periodic  sentencing  can  be  very  problematic  when                                                               
managing populations  with overcrowded facilities. DOC  is at 100                                                               
to 103  percent capacity  all of  the time. She  is aware  of two                                                               
cases where  judges ordered periodic  sentences to be  served. In                                                               
one,  a prisoner  with a  long  sentence served  the sentence  on                                                               
weekends -  for over one year  the prisoner had to  be discharged                                                               
every week. That process is  costly and time consuming. The other                                                               
case  involved  a  7-year sentence.  The  prisoner  was  released                                                               
during the  summers with no supervision.  Long-term prisoners are                                                               
often sent  to Arizona so  prisoners have to be  transported back                                                               
and  forth   when  released.  That  creates   a  disparity  among                                                               
sentences  for   other  inmates.   DOC  sees   philosophical  and                                                               
logistical problems. Short prison sentences  are not as much of a                                                               
problem because  prisoners might  spend their  time in  a halfway                                                               
9:07:29 AM                                                                                                                    
MS. PARKER  said in regard to  Section 6 - the  general condition                                                               
of probation - the number  12 condition is an extremely important                                                               
condition for  probation officers  to do their  jobs effectively.                                                               
Number  12 is  the delegation  of some  authority to  a probation                                                               
officer  by a  judge.  It preserves  the  current practice.  This                                                               
condition has  been used in  Alaska and almost every  other state                                                               
and  jurisdiction.  Generally, the  court  would  order that  the                                                               
probationer abide by any special  instructions given by the court                                                               
or  any  of its  duly  authorized  officers, including  probation                                                               
officers  of   DOC.  This  allows   the  probation   officer  the                                                               
flexibility to  respond to things as  they come up -  some common                                                               
occurrences are  substance abuse  issues not reported  during the                                                               
sentencing phase. If those issues  did not come up at sentencing,                                                               
the probation officer can intervene  later and require treatment.                                                               
That avoids going back to  court to request additional conditions                                                               
and keeps people out of prison.  Returning to court would place a                                                               
huge  burden on  the  court  system. This  would  be  used as  an                                                               
intermediate sanction.                                                                                                          
9:10:33 AM                                                                                                                    
SENATOR THERRIAULT asked Ms. Parker to read that language again.                                                                
MS. PARKER reads  probation condition number 12,  which refers to                                                               
delegating some authority to a probation officer by a judge:                                                                    
      Abide by any special instructions given by the court                                                                      
       or any of its duly authorized officers, including                                                                        
     probation officers of the Department of Corrections.                                                                       
SENATOR  THERRIAULT referred  to  Senator  Guess's concern  about                                                               
non-English speakers and asked Ms.  Parker to suggest language to                                                               
make that clear.                                                                                                                
MS. PARKER  said a parole  officer would make sure  a non-English                                                               
speaking  prisoner understands  the  conditions  of probation  or                                                               
parole. She offered  to look into adding a provision  to have the                                                               
person sign a statement saying he/she understands.                                                                              
9:12:46 AM                                                                                                                    
MS. PARKER explained  that Sections 26, 30, and  31 affect parole                                                               
by  giving  the  police  officer authority  to  stop  and  detain                                                               
someone  who  might  be violating  parole  conditions,  which  is                                                               
important in smaller villages without  probation offices. DOC has                                                               
statutory authority to  work with VPSOs, who can  serve as parole                                                               
agents. In those areas, DOC  provides training. In larger cities,                                                               
law  enforcement  calls  the on-duty  supervisor  and  DOC  works                                                               
collaboratively  with law  enforcement.  DOC  believes this  will                                                               
improve  the  working  relationship   with  law  enforcement  and                                                               
intervene to keep offenders from violating.                                                                                     
Sec.  29 codifies  the current  practice of  the parole  board by                                                               
making clear that the board has  the authority to deny a prisoner                                                               
consideration  for   parole,  once   the  board   has  considered                                                               
discretionary parole and the prisoner was denied release.                                                                       
SENATOR  HUGGINS   asked  if,  regarding  Arizona   and  periodic                                                               
imprisonment,  prisoners sent  to Arizona  go back  and forth  to                                                               
MS. PARKER  said DOC  tries not to  send prisoners  with periodic                                                               
sentences  to Arizona  because  of  the increased  transportation                                                               
costs. DOC  tries to send  only prisoners with long  sentences to                                                               
Arizona,  although DOC  gets ordered  by the  court to  transport                                                               
prisoners back for other reasons.  She said although DOC tries to                                                               
keep  prisoners with  periodic sentences  in the  state, it  puts                                                               
pressure on DOC's  ability to move prisoners  around, even within                                                               
the state.                                                                                                                      
9:16:32 AM                                                                                                                    
SENATOR  THERRIAULT asked  Ms. Parker  to  describe the  specific                                                               
circumstances that led  the court to allow the  one prisoner with                                                               
a periodic sentence to be released during the summers.                                                                          
MS. PARKER  said the court  released that prisoner  to commercial                                                               
fish. She said she doesn't know  how many of those types of cases                                                               
exist and the  overall impact on the system. She  noted those two                                                               
examples were in Juneau.                                                                                                        
SENATOR THERRIAULT  asked if  that person  had a  7-year sentence                                                               
and what the crime was.                                                                                                         
MS. PARKER said she would find out.                                                                                             
9:17:33 AM                                                                                                                    
CHAIR SEEKINS asked if, under  this proposal, the same commercial                                                               
fishing  scenario  could  occur  but more  explanation  would  be                                                               
required and the process would be tougher.                                                                                      
MS. PARKER  said yes,  and DOC's  concern is  that if  judges use                                                               
this to a  greater extent, DOC would have a  very serious problem                                                               
managing  that population.  She  explained that  serving time  in                                                               
prison is  a hardship on  every inmate who  has to serve  time in                                                               
prison when it comes to supporting their families.                                                                              
CHAIR  SEEKINS said  he  is  unaware of  the  extent of  periodic                                                               
sentencing  and  asked  if  SB  56 would  create  a  new  cottage                                                               
industry  in  the  sentencing process,  i.e.  requiring  studies,                                                               
surveys, more  lawyers, etc. He  asked if the number  of periodic                                                               
sentences is significant.                                                                                                       
9:19:02 AM                                                                                                                    
MS. PARKER offered to find out.                                                                                                 
CHAIR  SEEKINS asked  if DOC  believes using  periodic sentencing                                                               
for short sentences may be worthwhile.                                                                                          
MS. PARKER said  DOC doesn't oppose periodic  sentences for short                                                               
sentences of 60  to 90 days and noted that  they are granted most                                                               
often. DOC doesn't  oppose them for first  time offenders either.                                                               
DOC's  concern   is  imposing   periodic  sentences   for  felony                                                               
convictions or long-term sentences.                                                                                             
9:20:21 AM                                                                                                                    
CHAIR  SEEKINS asked  if DOC  has a  parameter it  is comfortable                                                               
MS. PARKER said for sentences of  less than one year. DOC prefers                                                               
to have  the authority to  make decisions based on  DOC's matrix.                                                               
DOC does  not want to  expand the  use of periodic  sentences but                                                               
understands why they are necessary at times.                                                                                    
CHAIR SEEKINS  asked if SB  56 would eliminate a  judge's ability                                                               
to use periodic sentences.                                                                                                      
MS.  PARKER  believed  the   current  language  [allows  periodic                                                               
sentences] for more than one year.                                                                                              
9:21:37 AM                                                                                                                    
CHAIR SEEKINS  asked Ms.  Parkes if this  language fits  within a                                                               
particular time parameter.                                                                                                      
MS. PARKER said the draft does  not limit the sentence length for                                                               
periodic   sentencing.  The   current  statute   allows  periodic                                                               
sentencing  with no  limits at  all.  The proposal  limits it  to                                                               
employment situations but not to certain sentences.                                                                             
SENATOR THERRIAULT asked  if the proposed language  does not take                                                               
into consideration  the hardship  on the family.  It says  if the                                                               
system has  imposed a requirement  on the individual,  the system                                                               
should not prevent the person from meeting that requirement.                                                                    
MS. PARKES believed that was the intention.                                                                                     
SENATOR  THERRIAULT said  he would  consider  adding language  to                                                               
differentiate between  shorter and longer terms  of imprisonment.                                                               
He added the  general public would want those  sentences to apply                                                               
only  to  crimes of  lesser  severity.  With regard  to  economic                                                               
hardship,  he said  any person  who gets  himself thrown  in jail                                                               
imposes an economic hardship on  his family. A deterrent to crime                                                               
is the hardship one might impose on any relationships.                                                                          
9:23:55 AM                                                                                                                    
CHAIR  SEEKINS liked  Senator Therriault's  suggestion and  asked                                                               
participants to work  together to figure out a  cut-off point. He                                                               
thought  the  embarassment  factor  could  be  as  great  as  the                                                               
economic factor. He expressed concern  that a large number of the                                                               
prisoners  are indigent.  The state  arrests them,  defends them,                                                               
houses them  in prison  and supports  their families  on welfare.                                                               
People need to  be punished for crimes they commit  but the state                                                               
needs to  be cognizant of the  cost. He said his  concern is that                                                               
sentencing is effective in deterring crime.                                                                                     
SENATOR GUESS referred  to Section 6 and asked if  any history of                                                               
abuse  by  current  probation  officers  exists  and  whether  an                                                               
appeals process for additional conditions exists.                                                                               
9:26:29 AM                                                                                                                    
MS. PARKER  believed they could  appeal to the court  because the                                                               
court orders probationers to comply  with certain conditions. She                                                               
said the conditions were challenged  in court and appealed, which                                                               
is one reason for the current situation.                                                                                        
SENATOR GUESS asked if that is implied in the language.                                                                         
MS. PARKER said that is correct.                                                                                                
SENATOR HUGGINS asked  if Ms. Parker wants a cut-off  of one year                                                               
for a periodic sentence.                                                                                                        
MS.  PARKER said  yes and  that DOC  prefers the  restriction for                                                               
employment  only. In  addition,  the  crime would  have  to be  a                                                               
misdemeanor if the sentence is less than one year.                                                                              
9:28:32 AM                                                                                                                    
SENATOR HUGGINS  asked what the  procedure is to  revoke periodic                                                               
MS. PARKER  said a warrant  would be  issued. She said  she would                                                               
have to look into how many times that happens.                                                                                  
SENATOR  HUGGINS asked  for the  cost to  DOC and  the man  hours                                                               
required. He  expressed concern that revoking  periodic sentences                                                               
is "turning DOC upside down."                                                                                                   
MS.  PARKER  said  that  is  not  a  big  problem  because  those                                                               
prisoners  have   a  good  arrangement.   If  they   violate  the                                                               
arrangement, they will not get a periodic sentence.                                                                             
9:30:09 AM                                                                                                                    
CHAIR SEEKINS noted  that Lt. Todd Sharp was  available to answer                                                               
MS.  BARBARA BRINK,  Public Defenders'  Agency, informed  members                                                               
she had been with the agency almost 23 years.                                                                                   
9:32:20 AM                                                                                                                    
MS.  BRINK  thanked  DOL  and   DOC  for  consulting  the  Public                                                               
Defenders'  Agency  when drafting  the  bill.  She traveled  with                                                               
staff from  DOC and DOL to  a Denver "think tank"  on sentencing.                                                               
She told  members that  SB 56  is a broad,  sweeping fix  to what                                                               
might  not be  a major  problem and  expressed concern  about the                                                               
magnitude of  changes it will  make.   In 2000, the  U.S. Supreme                                                               
Court issued  an opinion  on Apprendy (ph),  which says  that any                                                               
fact that increases the penalty  for a crime beyond the statutory                                                               
maximum  must  be  submitted  to  a  jury  and  proven  beyond  a                                                               
reasonable doubt. Blakely defined the  maximum sentence as what a                                                               
judge can impose based on a jury verdict.                                                                                       
She said eight or nine states  are in the same position as Alaska                                                               
and  repeated that  SB 56  is  too broad  for Alaska's  purposes.                                                               
Alaska  adopted   presumptive  sentencing   in  1978   to  create                                                               
uniformity  in   sentencing.  A   1997  Supreme   Court  Advisory                                                               
Committee  on  Fairness and  Access  suggested  that a  study  of                                                               
presumptive  sentencing   be  undertaken.  The   Alaska  Judicial                                                               
Council  then  issued its  report,  which  said that  presumptive                                                               
sentencing had been a success.                                                                                                  
9:35:51 AM                                                                                                                    
MS.  BRINK  said the  Alaska  Judicial  Council also  found  some                                                               
ethnic variations  in drug sentences and  variations depending on                                                               
gender,  location  in state,  and  whether  a public  or  private                                                               
attorney represented  the offender. She repeated  that the remedy                                                               
in  SB  56  is  too  broad   if  Alaska's  goal  is  to  maintain                                                               
uniformity. SB 56 proposes to  increase the ranges for sentencing                                                               
so  it increases  the possibility  for greater  disparity. SB  56                                                               
satisfies  the  requirements  of  Apprendy and  Blakely  but  too                                                               
broadly.  Now any  judge  can sentence  anyone  to an  aggravated                                                               
sentence  without a  finding of  aggravators, specific  facts, or                                                               
the  right  for a  sentencing  court  to  have that  reviewed  by                                                               
another court. She likened it to  taking a chainsaw approach to a                                                               
problem  that required  a scalpel.  The  Alaska Judicial  Council                                                               
estimated that  aggravated sentences  are applied to  between 105                                                               
and 122 cases each year.                                                                                                        
MS.  BRINK  suggested  some   alternative  proposals.  One  would                                                               
provide the right  of a jury trial. That would  only affect cases                                                               
that  are aggravated.  That  is  not the  most  expedient way  to                                                               
address the  problem but  sometimes expediency  must take  a back                                                               
seat to constitutional rights. She  said the point of the Blakely                                                               
and Apprendy  decisions was  to increase  the reliability  in the                                                               
fact-finding  process. A  jury, not  a judge,  usually determines                                                               
facts.  She read  from the  Supreme  Court decision  on Fan  Fan-                                                               
     The framers  of the Constitution wouldn't  have thought                                                                    
     it too  much to demand  that before depriving a  man of                                                                    
     10 more years  of his liberty, the  state should suffer                                                                    
     the modest inconvenience  of submitting its accusations                                                                    
     to  the unanimous  suffrage  of 12  of  its equals  and                                                                    
     neighbors rather than a lone employee of the state.                                                                        
She said  that by expanding  the judicial ranges  for presumptive                                                               
sentencing in  this bill,  she doubts  any aggravators  will come                                                               
before  the  trial judge.  She  questioned  why the  state  would                                                               
bother trying  to prove an  aggravator if  it could get  10 extra                                                               
years on a defendant without proving anything.                                                                                  
9:40:30 AM                                                                                                                    
MS. BRINK  said her first point  was that the bill  is too broad,                                                               
considering the  number of cases  in Alaska. Her second  point is                                                               
that  the  proposed  range  is  huge  compared  to  the  goal  of                                                               
uniformity. SB  56 will  create lots of  room for  disparity. She                                                               
believes  increasing  the  range   will  increase  sentences  and                                                               
pointed  out  that  there  is  no  range  below  the  presumptive                                                               
sentence. She  said another problem  with the bill is  that there                                                               
is no right  to be indicted on an aggravator  so that leaves open                                                               
the question of whether the grand  jury also has to hear evidence                                                               
on the  aggravators. She  explained that before  a person  can be                                                               
held to trial on a felony case,  the facts must be presented to a                                                               
grand jury,  which is a  one-sided proceeding. The grand  jury is                                                               
to determine whether  there is probable cause to  believe a crime                                                               
was committed.  She noted over 90  percent of cases do  not go to                                                               
9:43:33 AM                                                                                                                    
MS.  BRINK said  90 percent  of cases  don't go  to trial,  often                                                               
because  of  the certainty  of  what  the  client is  facing.  By                                                               
increasing the ranges, that certainty  is eliminated. It will not                                                               
be helpful to plea-bargaining because  there will be a huge range                                                               
the defendant  will consider himself  subject to.  Often periodic                                                               
sentencing  is used  when a  family member  is terminally  ill or                                                               
died and  the offender's presence  is necessary. She  believes it                                                               
is  beneficial  to  the  state to  allow  periodic  sentences  to                                                               
proceed  because  strong  family  ties can  be  used  to  predict                                                               
success upon release.                                                                                                           
9:46:04 AM                                                                                                                    
MS.  BRINK  said  the  state   can  use  31  aggravators  and  16                                                               
mitigators. She then discussed burglary sentences.                                                                              
Her most  strenuous objection was  Section 7 because a  judge can                                                               
increase the sentence without having  to find aggravators or make                                                               
specific findings.  She gave a further  explanation of objections                                                               
and said SB 56 will give too much discretion to judges.                                                                         
She expressed the  need for more judicial review  of sentences if                                                               
the goal is uniformity.                                                                                                         
9:49:08 AM                                                                                                                    
MS. BRINK said the committee  could consider better remedies that                                                               
comply  with the  Sixth Amendment  and preserve  more determinate                                                               
sentencing models. At the Denver meeting  she learned that 8 or 9                                                               
states  have  similar  problems  to Alaska  with  regard  to  the                                                               
Blakely  decision.  No one  can  agree  on  a remedy  to  comply.                                                               
Indiana  is  following the  Kansas  model.  Ohio is  letting  the                                                               
courts  sort  out  whether  its  procedures  are  compliant.  The                                                               
Department  of Justice  recommended  to its  prosecutors that  it                                                               
take aggravators  before a grand  jury. Minnesota has  issued two                                                               
reports to its governor. SB  56 completely revises how sentencing                                                               
will  occur in  Alaska. She  suggested establishing  a sentencing                                                               
commission to look at disparity and what other states are doing.                                                                
9:51:47 AM                                                                                                                    
CHAIR SEEKINS announced a 5-minute at ease.                                                                                     
10:01:42 AM                                                                                                                   
CHAIR SEEKINS  reconvened the meeting  and opened the  hearing to                                                               
questions for Ms. Brink.                                                                                                        
SENATOR THERRIAULT asked  for the total number  of sentences that                                                               
were mitigated.                                                                                                                 
MS.  BRINK  said her  statistics  are  from the  Alaska  Judicial                                                               
Council and  it has more  data from  99 felonies. She  offered to                                                               
get the information and calculate the number.                                                                                   
SENATOR THERRIAULT wanted that information before going forward.                                                                
SENATOR HUGGINS  asked about the  detriments if  aggravators were                                                               
not considered by the grand jury.                                                                                               
MS. BRINK said the point of the  grand jury is to act as a safety                                                               
check. The second  point of the grand jury is  due process notice                                                               
of what witnesses say about the offender's conduct.                                                                             
SENATOR THERRIAULT  said the grand  jury would still  be required                                                               
to come up  with the findings for the underlying  case; this will                                                               
only avoid a grand jury  hearing on the potential aggravators. He                                                               
could see  a whole  time continuum of  charging someone  on final                                                               
CHAIR SEEKINS asked  what happens in the course of  a trial if an                                                               
aggravating factor turns up.                                                                                                    
MS. BRINK  thought that  was a legitimate  concern for  the state                                                               
because often  aggravators don't  turn up  until later.  Often, a                                                               
probation officer  is not  assigned or  a pre-sentence  report is                                                               
not  written until  after  convicted. She  noted  in the  federal                                                               
system,  a lot  of the  investigative work  happens on  the front                                                               
CHAIR  SEEKINS  expressed concern  that  requiring  a grand  jury                                                               
indictment on  the aggravator factor  will slow the  process down                                                               
or eliminate it as a sentencing factor.                                                                                         
10:06:31 AM                                                                                                                   
CHAIR  SEEKINS  noted that  Ms.  Brink  said  that less  than  10                                                               
percent of  people charged go to  trial and that she  believes an                                                               
increase  in   the  range  of  presumptive   sentences  decreases                                                               
certainty  to the  penalty.  He  asked if  she  would attempt  to                                                               
negotiate with  the district attorney  an agreed-to range  now or                                                               
whether that would be left to the judge's discretion.                                                                           
MS. BRINK said  for the most part, she attempts  to negotiate not                                                               
only  a charged  certainty  or adjustment,  but  also a  sentence                                                               
certainty or adjustment.  She  began to poll its agency attorneys                                                               
statewide  and  found  that estimates  of  agreed-upon  sentences                                                               
ranged  from 60  percent to  80 percent.  Most of  the bargaining                                                               
that goes on now includes certainty as to the sentence.                                                                         
10:08:20 AM                                                                                                                   
CHAIR SEEKINS asked  if one couldn't assume this will  be left to                                                               
the discretion of a judge.                                                                                                      
MS.  BRINK  said   with  the  current  system,   she  has  strong                                                               
confidence  about   what  her  client   is  facing   because  the                                                               
presumptive is a  set number and not a range,  although there may                                                               
be some  uncertainty about whether  an aggravator can  be proven.                                                               
With SB 56,  there will be no  reason for the state  to offer the                                                               
low end  of the presumptive range  because there is no  reason to                                                               
believe the judge would give the low end.                                                                                       
CHAIR SEEKINS asked  if one was trying to evaluate  the number of                                                               
cases that would go to trial,  how the number of cases that would                                                               
go  to trial  would  affect  workload on  personnel  of both  the                                                               
district attorney and public defender's offices.                                                                                
MS. BRINK said the workload would  increase if more cases went to                                                               
trial but  it is  impossible to predict  the percentage  of those                                                               
cases. She  said it is up  to the defendant to  choose whether to                                                               
go to trial or enter into a negotiated plea.                                                                                    
CHAIR  SEEKINS  asked  if  her  concern  is  that  the  level  of                                                               
uniformity will be higher.                                                                                                      
MS. BRINK said  her concern is a loss of  uniformity because this                                                               
bill enlarges provisions  and expands the discretion  of a judge.                                                               
She also expressed  concern that SB 56 will jolt  everything up a                                                               
10:11:34 AM                                                                                                                   
SENATOR THERRIAULT  asked, with  regard to plea-bargaining  and a                                                               
client liking  certainty, if the  prosecutor plays into  the role                                                               
of whether the court will take up potential aggravators.                                                                        
MS.  BRINK  said  absolutely  and  that  they  make  the  initial                                                               
decision of whether to charge the person with an aggravator.                                                                    
10:12:13 AM                                                                                                                   
SENATOR THERRIAULT argued that the  prosecutor would have to take                                                               
the  first step  to  trigger  the aggravators  but  the court  is                                                               
required to  look at the  aggravators so that the  current number                                                               
in  statute is  not certain.  He said  he would  imagine that  in                                                               
plea-bargaining, one of  the first things that come  into play is                                                               
foregoing any aggravators.                                                                                                      
MS.  BRINK agreed  and  said  that is  one  of  the first  things                                                               
discussed. Often the  deal is made for  the presumptive sentence.                                                               
She said  that under  SB 56, she  would not be  able to  tell the                                                               
client s/he  has committed  a two-year crime.   Instead  she will                                                               
have to tell him it's a two to four-year crime.                                                                                 
10:13:46 AM                                                                                                                   
SENATOR THERRIAULT asked  if she would discuss  with a prosecutor                                                               
the number  of years within the  range so that dynamic  would not                                                               
change all  that much. He then  asked if she is  fearful that the                                                               
court will  automatically gravitate to  the middle or  higher end                                                               
of the range without encouragement from the prosecutor.                                                                         
MS. BRINK said she couldn't  answer those questions but explained                                                               
SB 56 will give the judge a big  spread to pick from. There is no                                                               
prioritization  of what  factors are  important. The  presumptive                                                               
was designed to take all of those factors into account.                                                                         
CHAIR SEEKINS asked Senator Guess if she had any questions.                                                                     
SENATOR GUESS had no questions but  asked for a response from Ms.                                                               
Parkes later on her interpretation of Section 7.                                                                                
SENATOR HUGGINS  noted that Ms.  Brink estimated that  90 percent                                                               
of  cases are  plea-bargained. He  asked  if the  potential of  a                                                               
higher sentence could increase that number to 91-92 percent.                                                                    
10:16:20 AM                                                                                                                   
MS. BRINK  thought the number could  go either way and  she could                                                               
not make a prediction.                                                                                                          
SENATOR FRENCH arrived.                                                                                                         
SENATOR  THERRIAULT  noted  the  committee  was  considering  the                                                               
following changes:  a change  to the language  in Sec.  2; adding                                                               
language  to  ensure  that  a  non-English  speaking  probationer                                                               
understands  directions  given  by  the  probation  officer;  and                                                               
addressing issues raised with Sections 7 and 29.                                                                                
CHAIR  SEEKINS  asked  Ms.  Brink  if she  believes  that  SB  56                                                               
threatens the constitutional rights of a defendant in any way.                                                                  
MS. BRINK  was not  sure that it  is constitutional  to eliminate                                                               
the right to an appeal.                                                                                                         
CHAIR SEEKINS  asked her to write  a letter on that  topic to the                                                               
committee for further consideration.                                                                                            
10:18:41 AM                                                                                                                   
SENATOR THERRIAULT asked if that issue is in Sec. 7.                                                                            
CHAIR SEEKINS said it is.                                                                                                       
SENATOR THERRIAULT  said the question on  Sec. 29 has to  do with                                                               
Sec. 33,  the applicability and retroactivity  sections. He asked                                                               
whether  Sec. 29  would trigger  an unconstitutional  increase in                                                               
MS. PARKES said DOL does  not believe any constitutional problems                                                               
exist. DOL believes  SB 56 will codify and make  what is implicit                                                               
explicit,  regarding the  parole board's  powers. Right  now this                                                               
only applies to  discretionary parole. She noted  the problem now                                                               
is  that  a   person  can  come  before  the   board  to  request                                                               
discretionary parole repeatedly, which  is time consuming for the                                                               
parole  board. SB  56  will allow  the board  to  refuse to  hear                                                               
certain requests again.                                                                                                         
10:20:42 AM                                                                                                                   
SENATOR FRENCH asked if this could trump a judge's restriction                                                                  
on parole because the parole board would not hear from the                                                                      
prisoner until the sentence imposed by the judge is completed.                                                                  
MS. PARKES said that is correct.                                                                                                
CHAIR SEEKINS noted that other people want to testify on SB 56                                                                  
but due to time constraints, the discussion would continue                                                                      
tomorrow. He then adjourned the meeting at 10:21:55 AM.                                                                       

Document Name Date/Time Subjects