Legislature(2005 - 2006)BUTROVICH 205

01/19/2005 08:30 AM JUDICIARY

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Heard & Held
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Heard & Held
            SB 56-CRIMINAL LAW/PROCEDURE/SENTENCING                                                                         
8:36:21 AM                                                                                                                    
CHAIR SEEKINS announced the committee  was working from Version F                                                               
of SB 56.                                                                                                                       
MS.  SUSAN PARKES,  Deputy Attorney  General, Criminal  Division,                                                               
Department of  Law (DOL),  deferred to Ms.  Portia Parker  of the                                                               
Department of  Corrections to address  changes made to  Version F                                                               
in response  to members' questions about  periodic sentencing and                                                               
delegating  probation conditions  set by  the judge  to probation                                                               
8:38:04 AM                                                                                                                    
MS. PORTIA PARKER, Department of  Corrections (DOC), explained to                                                               
members  that   regarding  periodic  sentencing,   the  assistant                                                               
attorney general who  works with the court system  on that matter                                                               
said its  occurrence has been  less frequent over the  years. DOL                                                               
has received  2 to 10  requests for periodic sentences  per year.                                                               
It  has become  less  of a  problem since  the  Court of  Appeals                                                               
decided the Felix case in  2002; however, some judges ignore that                                                               
ruling. A  Fairbanks judge  recently ignored  it and  ordered the                                                               
release of a prisoner on medical furlough for dental care.                                                                      
8:39:36 AM                                                                                                                    
MS. PARKER  believed the proposed  amendment would  provide clear                                                               
statutory guidelines.                                                                                                           
MS. PARKER said  the second question had to do  with the offender                                                               
who was  given a periodic sentence  so that he could  be released                                                               
to commercial  fish. That offender  was given an  8-year sentence                                                               
for sexual abuse of  a minor in the second degree.  He also had 5                                                               
prior  convictions including  attempted  homicide, two  assaults,                                                               
and contributing to  the delinquency of a minor,  which is sexual                                                               
abuse of a  minor in the second degree under  current law. He was                                                               
given  an  8-year  sentence  with  5  years  suspended.  DOC  was                                                               
required to release  him repeatedly for several months  over a 3-                                                               
year period.                                                                                                                    
8:41:03 AM                                                                                                                    
SENATOR  FRENCH asked  if  any consideration  had  been given  to                                                               
restricting  periodic sentences  to the  lower end  of the  scale                                                               
according to  the seriousness of  the offense. He stated  that he                                                               
preferred  that  periodic  sentences   only  be  permissible  for                                                               
sentences of less than two years.                                                                                               
8:41:45 AM                                                                                                                    
CHAIR SEEKINS  noted that  issue was  discussed the  previous day                                                               
and  was  one  reason  Ms.  Parker  gave  her  report  today.  He                                                               
suggested that the  committee could establish an  upper limit. He                                                               
then  asked  Ms. Parker  about  the  justification for  giving  a                                                               
presumptive sentence for the last case.                                                                                         
MS.  PARKER said  she  hadn't  read the  entire  court order  but                                                               
thought one reason for giving  periodic sentences was to allow an                                                               
offender to be employed.                                                                                                        
8:42:45 AM                                                                                                                    
SENATOR THERRIAULT asked if Ms.  Parker could suggest language to                                                               
implement a limitation.                                                                                                         
MS. PARKER  said she  worked with staff  on language  that reads,                                                               
"pre-existing   employment   reasons   that  existed   prior   to                                                               
sentencing and with a composite sentence of less than one year."                                                                
8:43:50 AM                                                                                                                    
CHAIR SEEKINS requested that a  copy of the suggested language be                                                               
SENATOR FRENCH explained  that he selected two  years because his                                                               
concern was with, for example,  an offender whose only problem is                                                               
drug  addiction.  If that  person  were  "busted" for  cocaine  a                                                               
second  time,  under the  old  scheme  he  would get  a  two-year                                                               
presumptive sentence for the second  offense. He thought it might                                                               
be appropriate  to allow  that offender  to subsistence  hunt for                                                               
his  family. He  said his  suggestion of  a two-year  presumptive                                                               
sentence for  a second offense  would be  the limit. If  a person                                                               
committed anything  more serious, it  would be time to  "sell the                                                               
net, sell  the rifle, and let  the family live on  those proceeds                                                               
while you're  away in  prison...." However, he  said he  does not                                                               
feel   Senator   Therriault's   preference   of   one   year   is                                                               
8:45:31 AM                                                                                                                    
SENATOR THERRIAULT  asked DOC to  respond to the  one-year versus                                                               
two-year argument.                                                                                                              
8:45:47 AM                                                                                                                    
MS. PARKER said  she is not sure  how much of an  impact the one-                                                               
year difference  would have. She  explained that since  the Felix                                                               
decision, periodic sentencing has become  much less of a problem.                                                               
She said  with a two-year  sentence, the person with  "good time"                                                               
would  be released  after  two-thirds of  the  sentence has  been                                                               
served. She  noted that presumptive sentencing  remains a problem                                                               
for  DOC  regarding  the movement  of  prisoners  for  population                                                               
control.  And,  it  is  a  problem in  prisons  that  are  always                                                               
overcrowded,  such  as  in  Bethel,  Fairbanks,  and  the  Mat-Su                                                               
pretrial  facility.  If  DOC could  keep  shorter-term  prisoners                                                               
there,  it  would.  However,  as  soon  as  those  prisoners  are                                                               
sentenced, they are sent somewhere  else. She summarized that the                                                               
situation  is  still problematic  but  it  is  not a  big  enough                                                               
problem to make a difference to DOC's operations.                                                                               
8:46:47 AM                                                                                                                    
SENATOR THERRIAULT moved to adopt  a conceptual amendment to page                                                               
2, lines  5-8, to strike  the new suggested language  and replace                                                               
it with [Amendment 1]:                                                                                                          
     But only if an employment obligation of the defendant                                                                      
      pre-existed sentencing and the defendant receives a                                                                       
     composite sentence of less than two years to serve.                                                                        
SENATOR GUESS objected and asked  for clarification. She wondered                                                               
why Senator  Therriault decided to  remove the  phrase "continued                                                               
incarceration would cause extreme hardship."                                                                                    
SENATOR THERRIAULT said the legal  drafter suggested his proposed                                                               
SENATOR GUESS  said she just  wanted to hear his  thinking behind                                                               
Amendment 1.                                                                                                                    
8:48:33 AM                                                                                                                    
CHAIR SEEKINS  commented that  by saying the  person must  have a                                                               
pre-existing  employment obligation  that  is for  less than  one                                                               
year composite, it will be easier  to get a composite sentence by                                                               
removing a degree of difficulty.                                                                                                
SENATOR   THERRIAULT  agreed   and  added   that  it   removes  a                                                               
restriction that was  tied to paying restitution  and replaces it                                                               
with the limitation of time.                                                                                                    
8:49:24 AM                                                                                                                    
CHAIR SEEKINS said he could go along with that.                                                                                 
SENATOR THERRIAULT  furthered that  Ms. Parker said  this problem                                                               
has largely corrected itself.                                                                                                   
SENATOR  GUESS   removed  her   objection  and   thanked  Senator                                                               
Therriault for the explanation.                                                                                                 
8:49:52 AM                                                                                                                    
CHAIR  SEEKINS   announced  that   with  no   further  objection,                                                               
Amendment 1 was adopted.                                                                                                        
8:50:05 AM                                                                                                                    
SENATOR  THERRIAULT  said  the next  issue  pertained  to  judges                                                               
granting   probation  officers   the  right   to  modify   parole                                                               
conditions. The committee had asked  for language to clarify that                                                               
a  probation  officer  could  not  just  send  a  letter  to  the                                                               
probationer,  because that  person might  be illiterate  or might                                                               
not  be  English  proficient.  He wanted  make  sure  the  person                                                               
clearly understands the modifications.                                                                                          
8:50:42 AM                                                                                                                    
MS. PARKER  said probation officers already  communicate verbally                                                               
and in written  form with the probationer so DOC  does not oppose                                                               
adding "and verbally" as that is current practice.                                                                              
SENATOR THERRIAULT moved to adopt  a conceptual amendment on page                                                               
4,  line 5:  after  the  word "provided"  insert  "orally and  in                                                               
CHAIR   SEEKINS  labeled   Senator   Therriault's  amendment   as                                                               
Amendment  2  and  announced  that  with  no  objection,  it  was                                                               
8:52:13 AM                                                                                                                    
SENATOR  FRENCH  asked  Ms.  Parker to  describe  the  powers  or                                                               
parameters of  a probation  officer to  impose the  conditions of                                                               
probation. He referenced page 3  and asked if a probation officer                                                               
could suddenly  decide the offender  has to  pay a fine  that was                                                               
not imposed by the court.                                                                                                       
MS.  PARKER explained  that a  probation officer  couldn't impose                                                               
additional fines,  restitution, or  payments of any  kind without                                                               
court  approval.  She said  the  typical  conditions a  probation                                                               
officer could  add when  the court  grants the  probation officer                                                               
authority under number  12 are mandates such as  reporting to job                                                               
training, curfew  if interfering  with employment,  or assessment                                                               
for drug  and alcohol abuse. Those  conditions can be added  on a                                                               
temporary  or  immediate basis  for  public  safety reasons.  DOC                                                               
feels it  is critical to  give probation officers  that authority                                                               
because doing so  keeps people out of jail  and prevents clogging                                                               
up the court system.                                                                                                            
8:54:43 AM                                                                                                                    
SENATOR FRENCH  agreed with  Ms. Parker  completely but  asked if                                                               
that authority is written down anywhere.                                                                                        
8:55:08 AM                                                                                                                    
MS. PARKER offered to get back to him with specific information.                                                                
SENATOR  THERRIAULT  asked  Ms.   Parkes  to  address  a  concern                                                               
expressed about  judges escalating  sentences because of  how the                                                               
ranges are set in SB 56, the  reason being they would not want to                                                               
be  viewed as  being slack  on  crime. He  asked her  if she  has                                                               
thought about how  to convey to the court system  that is not the                                                               
legislature's intent.                                                                                                           
MS. PARKES said she has given  that concern a lot of thought. She                                                               
said there  has been  a lot  of speculation  about how  this bill                                                               
will be  implemented but  no one  will know  until the  bill goes                                                               
into effect. She believes a letter  of intent would be a good way                                                               
to  clarify  that  the  legislature's  intent  is  not  to  raise                                                               
sentences across  the board;  instead, the  creation of  this new                                                               
system is  to bring  the state into  compliance with  the Blakely                                                               
decision. She  noted that she ran  across a case, Beltz  v State,                                                               
in which  a defendant was  convicted of sexually abusing  his 11-                                                               
year-old daughter.  He was given  a presumptive  8-year sentence.                                                               
He  appealed that  sentence for  being too  harsh. He  quoted the                                                               
Superior Court judge at his  sentencing that stated on the record                                                               
that  half the  judges  in the  state would  only  give a  5-year                                                               
sentence  for  this  type  of  offense  if  it  weren't  for  the                                                               
legislature  ordering an  8-year presumptive  sentence. She  said                                                               
that is  anecdotal evidence  but, in  her experience,  one reason                                                               
judges do  not like  presumptive sentences  is that  they believe                                                               
they are too harsh. She  doesn't share that concern, but believes                                                               
a  letter  of  intent  would make  the  legislature's  intentions                                                               
8:58:57 AM                                                                                                                    
SENATOR THERRIAULT  asked Ms. Parkes if  she had any data  on the                                                               
number of  cases in which  aggravators actually kick in.  He also                                                               
asked how many cases mitigators come into that impact sentences.                                                                
MS. PARKES  said she  tried to track  down that  information. She                                                               
noted that although Ms. Brink  said 120 cases were aggravated and                                                               
that number  may be accurate,  she wanted to  find out in  how in                                                               
many  cases  aggravators  were proposed.  She  spoke  with  Terry                                                               
Carnes at  the Alaska  Judicial Council who  was involved  in the                                                               
1999  study and  asked the  number of  cases in  which the  state                                                               
noticed aggravating factors. The  Judicial Council only looked at                                                               
two-thirds of the  felony cases for 1999;  notices of aggravators                                                               
were filed  in 483 cases. That  extrapolates out to 642  cases if                                                               
one were looking  at 100 percent of cases. She  said again, it is                                                               
up  to  judges  to  decide  whether  to  increase  sentences  but                                                               
potentially, there  could be 642  cases where the state  would be                                                               
proposing aggravators and taking them  to a trial jury. Regarding                                                               
mitigators,  Ms.  Carnes  said  in  186  cases,  mitigators  were                                                               
noticed  up. That  would  extrapolate  out to  247  cases if  100                                                               
percent  of  cases  were  accounted for.  She  noted  the  felony                                                               
caseload referrals  have increased by  1,000 cases since  1999 so                                                               
the state is  probably looking at a higher number  of cases where                                                               
aggravators and mitigators would apply.                                                                                         
9:01:12 AM                                                                                                                    
MS. PARKES referred to a 1999  study pie chart and indicated that                                                               
overall,  in   55%  of  cases   the  offenders   got  presumptive                                                               
sentences,  in 25%  of cases  offenders  got below,  and in  20%,                                                               
offenders got above.                                                                                                            
9:01:47 AM                                                                                                                    
SENATOR THERRIAULT  asked if  1,000 additional  cases equal  a 20                                                               
percent increase.                                                                                                               
MS. PARKES said  in 1999, there were 5,629  new felony referrals.                                                               
In 2003, there were 6,477;  that represents about a 15% increase,                                                               
which  is significant.  She said  Ms.  Brink thought  aggravators                                                               
should  go  before   a  grand  jury  but  that   would  create  a                                                               
significant resource  problem for the state  and criminal justice                                                               
system as a whole. She pointed  out that Chair Seekins asked what                                                               
happens if the  aggravators are unknown at the  time and answered                                                               
that the  prosecution would have  to go  back to the  grand jury.                                                               
She felt it is extremely unrealistic  to expect the state to have                                                               
that kind of information that early in the process.                                                                             
9:02:59 AM                                                                                                                    
SENATOR  FRENCH  referred  to  page  17  and  said  his  question                                                               
pertains to  the phrasing  of time  parameters for  giving notice                                                               
about aggravators  to the  other side. The  language on  lines 26                                                               
through  31  talks about  10  days  before  trial or  at  another                                                               
specified time. He asked if the  time limit could be less than 10                                                               
days or if this was provided to give the judge some leeway.                                                                     
9:03:46 AM                                                                                                                    
MS. PARKES thought that language  was intended to give the courts                                                               
some leeway.  She said  there is  often a  lot of  local practice                                                               
depending on the  court. Some courts may find 20  days to be more                                                               
appropriate.  She said  as an  issue  of fairness,  if the  state                                                               
suddenly gets significant information 5  days before a trial, the                                                               
remedy would be a continuance for the defense.                                                                                  
SENATOR FRENCH  said that  pertains to a  trial but  his question                                                               
has to do with "lesser included"  and "changes of plea" and asked                                                               
Ms. Parkes to walk him through such a scenario.                                                                                 
9:04:54 AM                                                                                                                    
MS. PARKES  said that language  was inserted because  it actually                                                               
happened in  a case. DOL  had a  retrial where the  defendant was                                                               
charged with murder  in the second degree. That  offense does not                                                               
have a  presumptive sentence, so  aggravators and  mitigators are                                                               
not  applicable.  The   state  hadn't  gone  to   grand  jury  on                                                               
aggravators or noticed  any aggravators. DOL had  not indicted on                                                               
manslaughter, which  is the  lesser included.  At the  trial, the                                                               
defense asked for  the lesser included of  manslaughter. The jury                                                               
was instructed on  manslaughter and came back with  a guilty plea                                                               
of  manslaughter, not  guilty  on murder  in  the second  degree.                                                               
Manslaughter  has  a  presumptive  sentence  and  aggravators  do                                                               
apply.  At   that  point,  DOL   requested  to  notice   up  some                                                               
aggravators but the judge refused. He  said the state has to take                                                               
aggravators  to the  grand  jury.  Because DOL  had  not, it  was                                                               
precluded from bringing them to  the trial. DOL is appealing that                                                               
9:06:26 AM                                                                                                                    
SENATOR  FRENCH  said  regarding  changes of  plea,  a  range  of                                                               
aggravators might apply.  He asked what happens  if the defendant                                                               
won't admit  the aggravators  and they  are contested.  Would the                                                               
jury have to make that finding.                                                                                                 
9:07:14 AM                                                                                                                    
MS.  PARKES  said  DOL  is  requesting  a  jury  trial  based  on                                                               
aggravators alone. DOL  would try to negotiate that as  part of a                                                               
plea. DOL  thought the judge  would make findings  on aggravators                                                               
but in  the meantime the  Blakely decision was issued.  The judge                                                               
can't make those findings so DOL requested a jury trial.                                                                        
9:08:06 AM                                                                                                                    
SENATOR THERRIAULT  asked, since the Blakely  decision was issued                                                               
during  the  process,  the  plea  was  accepted  or  whether  any                                                               
negotiation  took  place.  He noted  that  if  negotiations  took                                                               
place,  DOL would  be able  to  negotiate the  full sentence  and                                                               
whether an aggravator should apply.                                                                                             
MS.  PARKES said  DOL normally  would have  gotten a  stipulation                                                               
that  the aggravators  existed, an  agreed upon  sentence, or  an                                                               
agreement  that it  wouldn't pursue  aggravators, but  the timing                                                               
was crucial.  DOL would strive to avoid this kind of situation.                                                                 
9:09:22 AM                                                                                                                    
CHAIR  SEEKINS  asked Ms.  Parkes  if  it  is DOL's  intent  that                                                               
aggravators  not be  required to  go to  the grand  jury but,  if                                                               
detected later, they could be added into the jury trial.                                                                        
MS.  PARKES said  that is  correct and  explained that  under the                                                               
rules, once a person  is in custody, DOL only has  10 days to get                                                               
to grand jury. That is a  very short period and often, especially                                                               
in serious cases, DOL must  rely on the pre-sentence report. That                                                               
is why under  the current system aggravators are  noticed 10 days                                                               
before sentencing.  Ten days  after arrest  is simply  not enough                                                               
time to know all of the facts.                                                                                                  
9:10:38 AM                                                                                                                    
CHAIR SEEKINS noted  that aggravators will still be  in place for                                                               
certain crimes  after the  Blakely decision  but the  standard of                                                               
proof has changed  to beyond a reasonable doubt and  will have to                                                               
be found by a jury, not by  a judge. He indicated that he doesn't                                                               
see in the bill the sponsor's  intent that aggravators need to go                                                               
to a grand  jury. He noted he  is open to any  discussion on that                                                               
9:11:34 AM                                                                                                                    
SENATOR  FRENCH  said   he  agrees  with  Ms.   Parkes  that  the                                                               
ballistics evidence, DNA etc., is not available within 10 days.                                                                 
CHAIR SEEKINS maintained  that the record needs to  be clear that                                                               
it  is not  the intent  of this  bill to  require aggravators  be                                                               
presented to the grand jury.                                                                                                    
9:12:23 AM                                                                                                                    
SENATOR  GUESS   asked  if  the   Blakely  decision   forces  the                                                               
legislature to put ranges in the bill.                                                                                          
MS.  PARKES replied  that Blakely  does not  require ranges;  the                                                               
range  method is  one option  that DOL  believes is  appropriate.                                                               
Another option  would be wide  open sentencing that  gives judges                                                               
full discretion. The purpose of  providing ranges is to recognize                                                               
that the playing  field has changed. DOL  believes that providing                                                               
ranges will give back some discretion that Blakely took away.                                                                   
9:14:41 AM                                                                                                                    
SENATOR  GUESS asked  how a  judge would  determine where  in the                                                               
range the sentence should fall.                                                                                                 
MS. PARKES replied  that AS 12.55.005 contains  the principles of                                                               
sentencing that  judges are  supposed to  look at.  That language                                                               
     The   legislature  finds   that   the  elimination   of                                                                    
     unjustified disparity  in sentences and  the attainment                                                                    
     of  reasonable  uniformity  in sentences  can  best  be                                                                    
     achieved   through  a   sentencing  framework   set  by                                                                    
     statute.  When  imposing   sentence  the  court  should                                                                    
     consider  the seriousness  of  the defendant's  present                                                                    
     offense in  relation to other offenses,  prior criminal                                                                    
     history, likelihood of  rehabilitation, need to confine                                                                    
     the defendant, circumstances of  the event, harm to the                                                                    
     victim,  effect  of  the  sentence  to  be  imposed  in                                                                    
     deterring  the  defendant   and  deferring  others  and                                                                    
     community condemnation, restoration of the victim.                                                                         
DOL anticipates  that judges  would look  to those  principles to                                                               
determine where in the range the sentence should fall.                                                                          
9:16:18 AM                                                                                                                    
SENATOR  GUESS referred  to the  previous day's  discussion about                                                               
inconsistency  of sentences  in the  past and  asked how  DOL can                                                               
ensure  that this  legislation will  not take  the state  back to                                                               
that situation.                                                                                                                 
MS. PARKES  said most states with  presumptive sentencing schemes                                                               
have  ranges. Many  of those  states have  found that  the ranges                                                               
resolved the  disparity problem. DOL believes  that fairly narrow                                                               
ranges will  take care  of the  disparity problem  because judges                                                               
will  still  have  direction   from  the  presumptive  sentencing                                                               
9:17:56 AM                                                                                                                    
SENATOR FRENCH  thought the  range idea  is a  good one.  He then                                                               
described a story to illustrate why.                                                                                            
9:20:03 AM                                                                                                                    
SENATOR THERRIAULT  asked Ms. Parkes  to address the  language in                                                               
Section 5.                                                                                                                      
MS. PARKES said  there is a problem  on page 3 in  Section 5. She                                                               
believed  line  14  should  read  "sentence  or  lower  than  the                                                               
presumptive range."                                                                                                             
SENATOR THERRIAULT moved to adopt  a conceptual amendment on page                                                               
3, line  14, after the word  "or" strike "within" and  replace it                                                               
with "lower than."                                                                                                              
CHAIR SEEKINS  announced that without objection,  Amendment 3 was                                                               
9:21:37 AM                                                                                                                    
CHAIR SEEKINS asked Ms. Parkes  to respond to Ms. Brink's comment                                                               
regarding  the lower  limit for  presumptive sentences  caused by                                                               
mitigating factors.                                                                                                             
MS. PARKES said the bill was  drafted so that the ranges start at                                                               
the current  presumptive, except  in two instances.  The thinking                                                               
was  that the  mitigators haven't  changed. The  Blakely decision                                                               
did not affect a judge's ability  to find mitigators by clear and                                                               
convincing  evidence and  to  mitigate  accordingly. Because  the                                                               
Blakely decision  only affected  a judge's ability  to aggravate,                                                               
DOL felt that  was the appropriate place to begin  the range. The                                                               
Legislature could make  changes if it feels  that is appropriate.                                                               
Blakely did not  affect the current system's  ability to mitigate                                                               
9:23:30 AM                                                                                                                    
CHAIR SEEKINS  said with that  explanation on the record,  he has                                                               
no  objection  to  leaving  the  bill  as  is.  He  believes  the                                                               
legislature's  intent is  that mitigating  factors have  not been                                                               
affected  so  there is  no  perceived  need to  build  mitigating                                                               
factors into the presumptive scheme.  He asked if anyone objected                                                               
or wanted to discuss the matter further. There was no response.                                                                 
9:23:58 AM                                                                                                                    
SENATOR FRENCH  noted that last  week the Supreme Court  issued a                                                               
ruling  on  a case  called  Booker  and  a companion  case  named                                                               
FanFan.  He asked  Ms. Parkes  if she  thinks anything  from that                                                               
ruling would affect  the statutory fix in SB 56.  He thought that                                                               
ruling was  about federal sentencing guidelines  and putting them                                                               
under the Blakeley decision.                                                                                                    
MS. PARKES said DOL's appellate  attorneys looked at that ruling.                                                               
They  do not  believe it  affects the  response proposed  in this                                                               
bill.  It  was fairly  specific  to  the federal  guidelines  and                                                               
turned them into voluntary guidelines.                                                                                          
9:24:58 AM                                                                                                                    
SENATOR FRENCH said  his understanding of the Blakely  case was -                                                               
other  than  the  fact  of  prior  conviction  -  any  fact  that                                                               
increases the penalty has to  be proved beyond a reasonable doubt                                                               
to a  jury. SB  56 exempts six  facts that a  judge can  learn by                                                               
looking at the  court file. The only one that  could be argued is                                                               
number 12  on page  12, line  27, which  pertains to  whether the                                                               
defendant is on bail release for  any felony or assault. He asked                                                               
why that was included.                                                                                                          
MS. PARKES said  DOL felt number 12 was one  the judge could take                                                               
judicial notice of by looking at  the court file. DOL believes it                                                               
is appropriate.                                                                                                                 
SENATOR FRENCH asked if that is "black and white"?                                                                              
MS. PARKES said that is how DOL saw it.                                                                                         
9:26:38 AM                                                                                                                    
CHAIR SEEKINS  referred to the  language on page 23,  Section 29,                                                               
and  said it  could  be  argued that  Section  29 constitutes  an                                                               
impermissible change  in sentence because of  an unconstitutional                                                               
increase in punishment  applied before the effective  date of the                                                               
act. The  legal drafter said it  would allow the Board  of Parole                                                               
to  make  a  prisoner  ineligible for  further  consideration  of                                                               
parole when that prisoner otherwise would have been eligible.                                                                   
MS. PARKES  commented that  discretionary parole  is just  that -                                                               
discretionary. No one is entitled  to it. If denied discretionary                                                               
parole,  the  sentence  is  not   being  changed.  She  said  her                                                               
understanding is that  a person can ask  for discretionary parole                                                               
the first time but if the  board decides the person does not meet                                                               
the criteria, the question is  whether the parole board should be                                                               
required to  hold repeated  hearings with  that same  person. The                                                               
intent  of Section  29  is  to cut  down  on  the parole  board's                                                               
expenditures if it has determined  that a person doesn't meet its                                                               
standards. She  said DOL doesn't  believe that  can be seen  as a                                                               
sentence modification.                                                                                                          
9:29:15 AM                                                                                                                    
CHAIR SEEKINS asked what standard DOC would be looking at.                                                                      
MS. PARKER  told members the  parole board looks at  the person's                                                               
conduct while incarcerated - whether  that person availed himself                                                               
of opportunities for  reform, past convictions, and  a wide array                                                               
of  considerations. The  board  is very  cautious  about what  it                                                               
grants.  She  pointed out  that  Section  29 is  already  current                                                               
practice in  its regulations; it  merely clarifies  the authority                                                               
to do  what is already  being done. This section  is preventative                                                               
in nature because of continued challenges.                                                                                      
9:30:48 AM                                                                                                                    
CHAIR  SEEKINS  asked if  a  crime  committed while  incarcerated                                                               
could be cause to deny discretionary parole.                                                                                    
MS. PARKER agreed that could be one reason.                                                                                     
9:31:16 AM                                                                                                                    
CHAIR SEEKINS  referred to Section 7  on page 4 and  asked if the                                                               
appellate court could no longer  say that a sentence is excessive                                                               
and reverse it.                                                                                                                 
MS.  PARKES  said her  recollection  is  that Senator  Therriault                                                               
asked Ms.  Brinks if  she felt this  bill met  the constitutional                                                               
requirements  of the  Blakely decision.  She agreed  that it  did                                                               
with the  one caveat  that Section  7 might  be unconstitutional.                                                               
Ms.  Parkes  said  she researched  that  issue;  DOL  strenuously                                                               
disagrees  with that  analysis. She  explained that  this doesn't                                                               
deny a  person the right to  appeal. It says the  legislature has                                                               
set a  range of sentences  appropriate for a  particular offense.                                                               
If a person receives a sentence  within that range, a court can't                                                               
reverse   it  based   on  the   sentence  being   excessive.  The                                                               
Legislature gets to set appropriate  sentences based on statutory                                                               
law. In Bear  v State, the Supreme Court said  it didn't have the                                                               
authority  to   review  sentences   at  all.  In   response,  the                                                               
legislature  gave statutory  authority  to the  Supreme Court  to                                                               
look at  sentences and it created  the Court of Appeals  and gave                                                               
it statutory  authority to look  at sentences. She said  in cases                                                               
since then,  particularly a  1997 case, Bear  was again  cited as                                                               
good law. In that case, the  legislature had passed a law in 1995                                                               
restricting sentence appeals for  people who receive sentences of                                                               
less than  two years  as excessive. That  was challenged  and the                                                               
court said  the legislature  had solid  reasons for  passing that                                                               
law. It cited resource issues  as one reason for the restriction.                                                               
She noted that  DOL anticipates that people who  get sentences at                                                               
the top of  the range may challenge them as  excessive but judges                                                               
shouldn't have  to be  second-guessed if  the sentence  is within                                                               
the range  - that  is the  intent of  sec 7.  DOL believes  it is                                                               
constitutional; she urged members to leave it in.                                                                               
9:36:04 AM                                                                                                                    
SENATOR  THERRIAULT  pointed out  the  ranges  were drawn  fairly                                                               
9:36:42 AM                                                                                                                    
SENATOR  HUGGINS  complimented  all   of  the  players  involved,                                                               
particularly Ms. Parkes  and Ms. Parker. He said  the hearing has                                                               
been very educational  and it is important  that Alaskans realize                                                               
that quality people are representing  their interests. He thanked                                                               
CHAIR  SEEKINS  announced the  committee  would  take a  5-minute                                                               
9:46:18 AM                                                                                                                    
Upon reconvening,  CHAIR SEEKINS asked  if members had  any other                                                               
SENATOR THERRIAULT  thought the committee  had dealt with  all of                                                               
the issues  today but proposed  that the committee take  no final                                                               
action  until the  most  recent  changes were  printed  in a  new                                                               
committee substitute. He  also wanted to work with  Ms. Parkes on                                                               
the  letter of  intent and  offered to  do so  between today  and                                                               
tomorrow and  to iron  out the  fiscal impact of  SB 56  with the                                                               
departments. He  said he anticipated  getting zero  fiscal notes.                                                               
He asked that the committee hold the bill for one more day.                                                                     
9:47:50 AM                                                                                                                    
CHAIR  SEEKINS  noted  that  Ms.  Sidney  Billingslea  wanted  to                                                               
9:48:07 AM                                                                                                                    
MS. SIDNEY  BILLINGSLEA, a  director on the  Board of  the Alaska                                                               
Academy Trial Lawyers,  told members SB 56 was new  to her so she                                                               
would  offer her  initial thoughts.    She said  the Blakely  and                                                               
Booker/Fanfan  cases  were  decided  by  a  conservative  Supreme                                                               
Court.  They were  decided to  primarily support  and uphold  the                                                               
Sixth Amendment right to a  jury trial, especially on aggravating                                                               
factors,  and  to  reduce  prosecutorial  powers,  especially  as                                                               
federal guidelines were designed  to withhold relevant collateral                                                               
information  until the  imposition  of sentence  and then  permit                                                               
enormous increases  in guideline sentences. It  restricts judges'                                                               
discretion  not  to give  enormous  increases  based on  relevant                                                               
conduct. The purpose was not  to increase the sentences of people                                                               
who were accused.  She disagreed with Ms. Parkes  that the intent                                                               
of SB  56 is  to address  Blakely and  not to  increase sentences                                                               
because that is what it does.                                                                                                   
9:50:25 AM                                                                                                                    
MS.  BILLINGSLEA  said prior  to  SB  56,  if no  aggravating  or                                                               
mitigating  factors existed,  an individual  would get  an 8-year                                                               
presumptive sentence. Now, an individual  can get an unreviewable                                                               
8 to 12-year  sentence, which has the practical  effect of giving                                                               
the prosecutors a free aggravator.  However, it does not give the                                                               
defense  a free  mitigator  because the  defense  must prove  its                                                               
mitigators  by  clear and  convincing  evidence.  The Booker  and                                                               
Fanfan  case  addresses  congressional  intent  in  drafting  the                                                               
sentencing  guidelines.  One  of the  legislative  purposes  when                                                               
originally suggesting a presumptive  term for first-degree sexual                                                               
assault was  to allow an  individual to receive and  complete sex                                                               
offender  treatment  while incarcerated.  That  is  no longer  an                                                               
option for those convicted of  committing sex offenses. She asked                                                               
if it was the legislature's intent  to continue to have an 8-year                                                               
sentence with  a possible increase  to 12 years when  the purpose                                                               
of the 8-year sentence no  longer exists. She asked the committee                                                               
to  examine that  from an  historical  perspective as  well as  a                                                               
practical perspective.                                                                                                          
She  responded to  Senator French's  example  of the  18-year-old                                                               
offender who only  got 5 years. She noted,  when supervised, that                                                               
person  has   no  court  access.  If   that  individual  violates                                                               
conditions of parole, he can  be incarcerated immediately without                                                               
judicial review. She continued to explain the parole situation.                                                                 
9:54:24 AM                                                                                                                    
MS.  BILLINGSLEA  said  she  sees  SB 56  as  an  opportunity  to                                                               
increase sentences.  The sentencing ranges  could have been  6 to                                                               
12 years or 6 to 10 years.  She believes the numbers did not come                                                               
with  an eye  toward completely  preserving judicial  discretion;                                                               
instead  that discretion  will be  decreased.  She explained  her                                                               
reasoning and offered to comment again later.                                                                                   
9:55:36 AM                                                                                                                    
CHAIR SEEKINS asked  if she could cite any  decision that implies                                                               
that the ranges are unconstitutional.                                                                                           
MS. BILLINGSLEA said  she could not but she did  not believe that                                                               
is the issue.                                                                                                                   
9:56:26 AM                                                                                                                    
MR.  WILLIAM  OBERLE,  President  of  the  Alaska  Academy  Trial                                                               
Lawyers, said the  Academy has not had the  opportunity to review                                                               
the bill so the following comments are his personal comments.                                                                   
He sees  SB 56  as reactive legislation  to the  Blakely decision                                                               
that  requires  the  greatest reflection.  The  fallout  of  that                                                               
decision  has  not been  fully  realized  yet. In  addition,  the                                                               
Booker/Fanfan decision  was issued just  last week. He  said that                                                               
although  the committee  thinks SB  56  will have  a zero  fiscal                                                               
impact, he doesn't  believe that will happen in the  long run. He                                                               
doesn't know if it will cause  more trials but cautioned the need                                                               
to look at increased costs to  DOC due to increased sentences. He                                                               
disagrees with  Ms. Parkes'  statement that  DOL will  save money                                                               
because  DOL will  not have  to  present aggravators  to a  grand                                                               
jury. He sees this as a resource transfer from DOL to DOC.                                                                      
9:59:13 AM                                                                                                                    
MR. OBERLE  said he sees SB  56 as contrary to  the underpinnings                                                               
of the original  presumptive sentencing scheme.   That scheme was                                                               
specifically  designed  by   the  legislature  because  disparate                                                               
sentences were  being issued  around the state.  SB 56  takes the                                                               
presumption out  and will allow  for disparate sentences.  He has                                                               
not  heard any  clamoring for  longer sentences  from anyone  but                                                               
that is  what SB 56  will do. The  Alaska Trial Lawyers  have not                                                               
reached  consensus  on SB  56;  they  were  not involved  in  the                                                               
process.  He asked to be  involved when these issues arise in the                                                               
future.  He cautioned  that SB  56 will  have significant  fiscal                                                               
impact and said he will provide further comments later.                                                                         
10:02:12 AM                                                                                                                   
CHAIR  SEEKINS announced  that he  would  hold SB  56 over  until                                                               
tomorrow  and  get  a  clean   draft.  He  anticipated  that  the                                                               
committee would take final action at the next hearing.                                                                          

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