Legislature(2005 - 2006)BUTROVICH 205

01/20/2005 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 56(JUD) Out of Committee
Moved CSSB 19(JUD) Out of Committee
            SB 56-CRIMINAL LAW/PROCEDURE/SENTENCING                                                                         
SENATOR  THERRIAULT  moved to  adopt  version  I as  the  working                                                               
document  before  the  committee.  He explained  that  version  I                                                               
contains  three  amendments, on  pages  2,  3,  and 4,  that  the                                                               
committee previously adopted.                                                                                                   
CHAIR SEEKINS  noted that  without objection,  version I  was the                                                               
working document before the committee.                                                                                          
SENATOR THERRIAULT  said he  noticed that  the effective  date in                                                               
Section 34  is not until  July 1  and suggested making  that date                                                               
sooner since this change would  allow people who are sentenced to                                                               
make challenges. He  then moved an immediate  effective date that                                                               
would replace Section 34.                                                                                                       
CHAIR SEEKINS  noted that without  objection, the  effective date                                                               
would occur immediately upon passage into law.                                                                                  
SENATOR THERRIAULT moved to adopt  the January 17, 2005 letter of                                                               
CHAIR SEEKINS  announced that without objection,  the January 17,                                                               
2005 letter of intent was adopted.                                                                                              
8:38:38 AM                                                                                                                    
SENATOR  FRENCH   asked  for   clarification  of   the  amendment                                                               
incorporated into  version I on  page 2, regarding  the composite                                                               
sentence of less than two years  to serve. He said his intent was                                                               
to preserve a  judge's ability to impose a  periodic sentence for                                                               
a two-year sentence,  since that is the benchmark for  a second C                                                               
felony. He suggested  changing "of less" to "no more"  so that it                                                               
would stop at two years.                                                                                                        
CHAIR SEEKINS asked  if he was suggesting language  that says two                                                               
years or less.                                                                                                                  
SENATOR FRENCH  said it should say  two years or less  or no more                                                               
than two years to serve.                                                                                                        
SENATOR  THERRIAULT urged  Senator  French to  move a  conceptual                                                               
amendment  and leave  the appropriate  language up  to the  legal                                                               
SENATOR FRENCH agreed and said the  idea is that the "gate" for a                                                               
periodic sentence  will slam  shut at  two years  and not  at two                                                               
years and one day.                                                                                                              
8:40:09 AM                                                                                                                    
CHAIR  SEEKINS  noted  that without  objection,  that  conceptual                                                               
amendment would be adopted as Amendment 5.                                                                                      
8:40:36 AM                                                                                                                    
CHAIR  SEEKINS  asked if  Ms.  Rogers  from Fairbanks  wanted  to                                                               
testify;  however she  was not  available at  this time.  He then                                                               
asked  if anyone  had any  more proposed  amendments. There  were                                                               
CHAIR SEEKINS directed the discussion to the fiscal notes.                                                                      
8:42:29 AM                                                                                                                    
CHAIR SEEKINS pointed out the  committee had some discussion with                                                               
members of the  Public Defender's Office that a  zero fiscal note                                                               
would  be   inappropriate  because  of   possible  constitutional                                                               
challenges.  He  said  that although  he  thought  the  committee                                                               
discussed that topic in depth  and decided that no constitutional                                                               
problems  existed,  he would  like  Ms.  Wilson to  address  that                                                               
MS.  LINDA   WILSON,  Deputy  Director   of  the   Alaska  Public                                                               
Defender's Office,  explained that Department of  Law (DOL) staff                                                               
testified that  no constitutional  violation exists, but  that is                                                               
the department's opinion and it  will not prevent challenges. The                                                               
court will decide  whether or not this  remedy is constitutional.                                                               
The Alaska  Public Defender's Office represents  clients who make                                                               
those  challenges and  it believes  that challenges  will happen.                                                               
The challenges  will likely be  to the right  to a grand  jury on                                                               
aggravators,  as well  as  to equal  protection  for a  disparity                                                               
within the range. She believes there  will be more jury trials on                                                               
the aggravators and  predicted there will be  more sentences with                                                               
probationary time.                                                                                                              
8:46:03 AM                                                                                                                    
MS. WILSON  felt the sentence  within the range will  encourage a                                                               
judge to  give probation time.  She believes that if  more people                                                               
are put on probation, more  probation violations will occur. That                                                               
will  create  more petitions  to  revoke  probation. Because  the                                                               
public defender's  agency represents  the bulk of  those clients,                                                               
she expects to see an increase  in those types of cases. She also                                                               
felt there  will be challenges  to the  portion of the  bill that                                                               
eliminate some  of the prior conviction-based  aggravators from a                                                               
right  to a  jury trial.  She noted  that was  Section 21  in the                                                               
first draft of the bill.  Some will require additional facts that                                                               
need to be proved to a jury beyond a reasonable doubt.                                                                          
8:48:16 AM                                                                                                                    
SENATOR THERRIAULT noted that any  piece of legislation carries a                                                               
potential  cost  to  state  government and  pointed  out,  as  an                                                               
example,  that  a   bill  could  trigger  the   need  to  redraft                                                               
regulations that could be challenged.  However, those costs don't                                                               
trigger  a  fiscal  note  because  that  is  the  cost  of  doing                                                               
business. Regarding probation, the  Department of Corrections has                                                               
said it is unable to predict  with any accuracy the future action                                                               
of judges. He  said his understanding of  an indeterminate fiscal                                                               
note  is  one  in  which  a  department  is  sure  the  piece  of                                                               
legislation will have associated costs  but those costs cannot be                                                               
quantified. He said that most of  what has been enumerated in the                                                               
fiscal notes is  very speculative and that  he strongly disagrees                                                               
with this fiscal note.                                                                                                          
8:50:37 AM                                                                                                                    
CHAIR SEEKINS  said it has not  been his policy to  speculate the                                                               
cost of a possible challenge and  put that into a fiscal note. He                                                               
noted that many  of the bills that have passed  out of the Senate                                                               
Judiciary Committee might be challenged.                                                                                        
8:51:26 AM                                                                                                                    
SENATOR  FRENCH  pointed  out that  the  bill  authorizes  longer                                                               
sentences. He would expect the  DOL to argue for longer sentences                                                               
in appropriate cases  and for longer sentences to  be imposed. He                                                               
said the strongest  argument in favor of  an indeterminate fiscal                                                               
note would be  that longer sentences would be  imposed under this                                                               
8:51:58 AM                                                                                                                    
CHAIR  SEEKINS said  he  didn't necessarily  disagree.  He was  a                                                               
negotiator for  35 years, and if  he was negotiating on  the cost                                                               
of something and  knew it could cost more if  he didn't negotiate                                                               
hard for a  lower cost, he would negotiate harder.  He said it is                                                               
possible  the  opposite could  be  argued  in terms  of  attorney                                                               
negotiations for a plea bargain  because it could reduce the cost                                                               
to the parties.  He said that is why he  proposed the zero fiscal                                                               
note from the Senate Judiciary  Committee; he would like to adopt                                                               
that fiscal note if the committee goes forward with the bill.                                                                   
8:53:18 AM                                                                                                                    
SENATOR GUESS  said her observation  matches Senator  French's in                                                               
that mathematically,  if the  baseline remains  the same  but the                                                               
upper range  is expanded,  the average sentence  is likely  to be                                                               
longer; therefore an  impact on the Department  of Corrections is                                                               
likely.  She noted  she had  not considered  the plea  bargaining                                                               
SENATOR THERRIAULT  said according to the  recent court decision,                                                               
an expense  will be associated with  triggering aggravators. This                                                               
legislation  imposes ranges  so a  judge,  in order  to impose  a                                                               
longer  sentence, has  a range.  If the  judge lives  within that                                                               
range, he won't  have to trigger additional jury  action. He said                                                               
no one  knows whether that would  be enough to offset  what might                                                               
have been  a higher range  reached with aggravators. He  said one                                                               
must  look at  striking a  balance  and noted  the current  court                                                               
cases have triggered actions that will  cost; SB 56 is attempt to                                                               
mitigate those costs.                                                                                                           
8:55:07 AM                                                                                                                    
SENATOR GUESS asked if Senator  Therriault was saying that a zero                                                               
sum  gain is  likely because  some department  may see  increases                                                               
while others see decreases.                                                                                                     
SENATOR THERRIAULT agreed but said  the same argument can be made                                                               
for each  department. He explained  that if  the court had  to go                                                               
through a  jury for an aggravator  to get a longer  sentence, the                                                               
public defender and the prosecutor would have additional costs.                                                                 
8:55:54 AM                                                                                                                    
SENATOR  THERRIAULT then  said,  "So  it is  how  we balance  the                                                               
scales in totality  but you also have the same  argument going on                                                               
with  each individual  player  in  the system  too  and have  the                                                               
scales remained balanced within their own department?"                                                                          
8:56:14 AM                                                                                                                    
SENATOR GUESS asked if that would be the case with DOC as well.                                                                 
SENATOR THERRIAULT noted  that Ms. Parker could speak  to the two                                                               
zero fiscal notes from DOC.                                                                                                     
8:57:02 AM                                                                                                                    
CHAIR SEEKINS  said he was not  willing to say that  just because                                                               
judges  will be  allowed to  use a  wider range,  they will  give                                                               
inappropriate   sentences.  He   thought   the  judicial   branch                                                               
understands the necessity of fitting  the punishment to the crime                                                               
and of the fiscal situation of Alaska.                                                                                          
SENATOR THERRIAULT  pointed out  that the committee  also adopted                                                               
the letter of intent, which  tells the court that the legislature                                                               
does not expect  a jump across the board of  longer sentences. He                                                               
noted that  the committee has  also heard testimony  that minimum                                                               
sentences  are too  high and  the  judiciary would  like to  make                                                               
those smaller.                                                                                                                  
8:58:40 AM                                                                                                                    
SENATOR  FRENCH said  he likes  the bill  - his  concern is  only                                                               
about the  fiscal note  and is from  his personal  experience. He                                                               
believes that  reality dictates increased costs  from longer jail                                                               
CHAIR SEEKINS said the intent is  to give judges the authority to                                                               
mete out  an appropriate sentence  with an appropriate  amount of                                                               
probation supervision.                                                                                                          
9:00:07 AM                                                                                                                    
SENATOR THERRIAULT moved to adopt  the Senate Judiciary Committee                                                               
fiscal note for the public defender's office.                                                                                   
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               
9:00:34 AM                                                                                                                    
SENATOR  THERRIAULT moved  CSSB 56(JUD)  from committee  with the                                                               
five zero fiscal notes and letter of intent.                                                                                    
SENATOR  FRENCH  objected  and said  that  after  re-reading  the                                                               
Blakely decision,  he does  not believe  it requires  the ranges,                                                               
although he believes that providing  for a range in sentencing is                                                               
a good solution.  He asked whether DOL believes  that the Blakely                                                               
decision requires ranges.                                                                                                       
9:01:38 AM                                                                                                                    
MS.  SUSAN PARKES,  Deputy Attorney  General, Department  of Law,                                                               
said  the  Blakely  decision does  not  require  this  particular                                                               
solution. DOL discussed many options  with legislators, one being                                                               
to impose high  sentences and mitigate down. DOL  was looking for                                                               
a balance within the legal constraints of Blakely.                                                                              
SENATOR  HUGGINS  asked if  this  legislation  was modeled  after                                                               
legislation adopted by the Kansas legislature.                                                                                  
MS. PARKES said  it is similar to the Kansas  model. She attended                                                               
a  seminar about  sentencing during  which  a presentation  about                                                               
Kansas was  given. Kansas  was the  only state  that had  gone to                                                               
jury findings  of aggravators but  it has sentencing  ranges like                                                               
those in SB 56.                                                                                                                 
9:03:13 AM                                                                                                                    
CHAIR  SEEKINS asked  if any  objection to  passing CSSB  56(JUD)                                                               
from committee  was maintained. With no  further objection, CHAIR                                                               
SEEKINS announced the  motion carried. He then  announced a brief                                                               

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