02/21/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB218 | |
| HB284 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 218 | TELECONFERENCED | |
| + | HB 284 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 21, 2014
1:14 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Max Gruenberg
Representative Neal Foster
MEMBERS ABSENT
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 218
"An Act relating to the aggravating factor at felony sentencing
of multiple prior misdemeanors when a prior misdemeanor involves
an assault on a correctional employee."
- HEARD & HELD
HOUSE BILL NO. 284
"An Act relating to an interstate compact on a balanced federal
budget."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 218
SHORT TITLE: PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE
SPONSOR(s): REPRESENTATIVE(s) CHENAULT, MILLETT, HERRON, LYNN
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) JUD
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
02/12/14 (H) Heard & Held
02/12/14 (H) MINUTE(JUD)
02/21/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 284
SHORT TITLE: COMPACT FOR A BALANCED BUDGET
SPONSOR(s): REPRESENTATIVE(s) KELLER
01/29/14 (H) READ THE FIRST TIME - REFERRALS
01/29/14 (H) STA, JUD
02/13/14 (H) STA AT 8:00 AM CAPITOL 106
02/13/14 (H) Moved Out of Committee
02/13/14 (H) MINUTE(STA)
02/14/14 (H) STA RPT 6DP 1NR
02/14/14 (H) DP: MILLETT, GATTIS, KELLER, ISAACSON, HUGHES,
LYNN
02/14/14 (H) NR: KREISS-TOMKINS
02/21/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ERNEST PRAX, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified during the hearing of HB 218.
MARGARET STOCK, Attorney at Law
Cascadia Cross Border Law Group
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Amendment 1 to
HB 218.
ANN BENSON, Supervising Attorney
Immigration Project
Washington Defender Association
Seattle, Washington
POSITION STATEMENT: Testified in opposition to Amendment 1 of
HB 218.
RUSSELL PRITCHETT, Attorney at Law
Pritchett & Jacobson, P.S.
Bellingham, Washington
POSITION STATEMENT: Testified in opposition to HB 218.
ARUNDEL PRITCHETT, Staff Attorney
Alaska Immigration Justice Project
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Amendment 1 to
HB 218.
QUINLAN STEINER, Public Defender
Public Defender Agency
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Amendment 1 to
HB 218.
HEATHER STENSON, Staff Attorney
Alaska Immigration Justice Project
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Amendment 1 to
HB 219.
JASON BAUMETZ, Supervising Staff Attorney
Alaska Immigration Justice Project
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Amendment 1 to
HB 218.
RICHARD ALLEN, Director
Office of Public Advocacy
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Offered remarks on HB 218.
ANNIE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided information on HB 218.
ANN BLACK, Assistant Attorney General
Appeals Unit
Office of Special Prosecutions & Appeals (OSPA)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified regarding provisions within
Amendment 1 and HB 218.
NICK DRANIAS, Director
Constitutional Policy
Policy and Development
Goldwater Institute
Phoenix, Arizona
POSITION STATEMENT: During hearing of HB 284, reviewed the
presentation entitled "States Can Fix the Debt."
ACTION NARRATIVE
1:14:00 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:14 P.M., Representatives Lynn, Millett,
Gruenberg, and Keller were present at the call to order.
Representative Foster arrived as the meeting was in progress and
Representative Millett attended via teleconference.
HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE
1:16:44 PM
CHAIR KELLER announced the first order of business would be
HOUSE BILL NO. 218, "An Act relating to the aggravating factor
at felony sentencing of multiple prior misdemeanors when a prior
misdemeanor involves an assault on a correctional employee."
1:17:29 PM
ERNEST PRAX, Staff, Representative Wes Keller, Alaska State
Legislature, advised that [on 2/12/14] the House Judiciary
Standing Committee heard HB 218 which concerns presumptive
sentencing for felony offenses found in AS 12.55.125. The bill
amends AS 12.55.155(c), which allows felony sentencing courts to
impose sentences above the presumptive range if the defendant
has five previous convictions for class A misdemeanors.
However, although two crimes that are part of a single criminal
episode, such as speeding, driving while intoxicated and then
hitting another vehicle count as one prior conviction, there are
certain circumstances in which the multiple crimes committed are
considered separate convictions. The legislation would add
committing a crime against a correctional officer to those
considered a separate crime and conviction even though there may
have been multiple crimes committed within the criminal one
event. Amendment 1, adopted on February 12, 2014, proposes
citizenship as a neutral factor when considering presumptive
sentencing, he remarked, and it does not allow an individual's
citizenship status to be considered as a mitigating factor. He
referred to two superior court cases [State v. Silvera and State
v. Perez, 309 P.3d 1277 (Alaska Ct. App. 2013), discussed
2/12/14 in committee] which allowed the non-citizen defendants
to appeal their sentences based upon being within the
presumptive range and the possibility of deportation. The
defendants argued their non-citizen status was a mitigating
factor as to why they should be sentenced below the presumptive
sentences and their cases were referred to a three-judge panel.
The panel considered the defendants' non-citizenship status and
ruled [possible deportation] was a good reason to sentence the
defendants below the presumptive range, he stated. Amendment 1
disallows using deportation as a mitigating factor.
1:22:01 PM
MARGARET STOCK, Attorney at Law, Cascadia Cross Border Law
Group, described her legal expertise in that she is an
internationally known expert in the area of immigration and
citizenship laws, a member of the Alaska Bar Association,
admitted before the United States District Court for the
District of Alaska and the 9th Circuit Court of Appeals, and is
the 2013 National Immigration Law Professor of the Year. She
advised she is testifying personally and in her capacity as an
expert. She said she is testifying in opposition to [adopted
Amendment 1] which would eliminate the ability of three-judge
sentencing panels to take into account potential immigration
consequences to a criminal defendant. The United States Supreme
Court in Padilla v. State of Kentucky (2010) decided deportation
is an extremely harsh consequence, and said:
The importance of accurate legal advice for
noncitizens accused of crimes has never been more
important. These changes confirm our view that, as a
matter of federal law, deportation is an integral
part, indeed sometimes the most important part of the
penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes.
MS. STOCK pointed out that the court deemed it very important
for criminals to receive accurate immigration legal advice
regarding immigration consequences. The same can be said for
the Alaska State Legislature, which she opined, is not receiving
accurate legal information from the memorandum from Richard
Svobodny, Deputy Attorney General, dated February 11, 2014. She
opined that the memorandum does not properly reflect the state
of immigration law as almost every sentence in the memorandum is
inaccurate and provides incompetent legal advice. The
memorandum fails to mention that the United States Supreme Court
contradicts the memorandum; lawyers writing legal memos are
required to cite contrary authority in regard to the lawyer's
stated position. Furthermore, this legislation affects non-
citizens as well as family members who are non-citizens and
naturalized citizens, such as military veterans who naturalize
through military service, all of which could face de-
naturalization and deportation due to this change to the law.
She maintained that the memorandum says without [Amendment 1]
citizens are treated differently, which is a violation of equal
protection. However, there is no equal protection problem with
current law as equal protection does not mean that everyone must
be treated exactly the same. The memorandum states: "If the
defendants were to receive at least one year's confinement for
their offenses, each might be classified as an aggravated felon
and so they might be considered deportable." Ms. Stock disputed
the use of the term "might" because federal law contains a
laundry list of offenses that are aggravated felonies under
immigration law and some of them are not felonies under state
law and some of them don't require jail sentences. Federal
immigration law is "very complicated" and when [an offense] is a
misdemeanor under Alaska law but is deemed an aggravated felony
under federal immigration law, then defendants must be
classified as an aggravated felon; it is not discretionary. In
such a situation, the defendant is deprived of all opportunities
"for the most part" to contest deportation, unless perhaps
he/she would face torture if deported to his/her home country.
She pointed out that in Padilla v. State of Kentucky, 559 U.S.
356 (2010), which is binding authority in Alaska, the U.S.
Supreme Court thoroughly discusses [deportation] and its harsh
consequences. She asserted it has long been a practice in
Alaska, even among prosecutors, to adjust a defendant's
sentences to avoid the harshest consequences of being a non-
citizen. However, the amendment under consideration would treat
non-citizens and some citizens in an extraordinarily harsh way
and it probably violates federal law. Ms. Stock emphasized that
she is opposed to [Amendment 1] and is hopeful the legislature
will reconsider and obtain an accurate legal opinion from the
Department of Law before moving forward.
1:27:54 PM
CHAIR KELLER announced that the committee does not plan to act
on HB 218 today.
1:28:01 PM
ANN BENSON, Supervising Attorney, Immigration Project,
Washington Defender Association, related that she is a
nationally recognized expert in the conflict between criminal
law and immigration law, a long time immigration lawyer, and was
a member of the Alaska Bar. She further related that she is
currently [staff supervisor] in an immigration project funded by
the Washington State Legislature to provide immigration related
expertise to judges, prosecutors, and defense attorneys who deal
with non-citizens in the criminal justice system in Washington.
She noted that she also regularly consults with people in the
Alaska criminal justice system. She said that she concurred
with Ms. Stock's testimony; specifically emphasizing the
"erroneous" nature of the legal memorandum the committee has
been provided. In Padilla, she pointed out that the court
specifically recognized it is proper for both criminal courts
and prosecutors to factor immigration consequences into their
decisions as the doctrine serves the best interest of the state
as well as the defendant. Not only did the U.S. Supreme Court
recognize criminal courts [factoring immigration consequences
into their decisions], but they sanctioned it, she stated. She
opined that [Amendment 1] interferes with the judge's ability
[to factor in deportation], and thus criminal courts in Alaska
will be significantly impacted in their ability to exercise
their authority and serve justice. She then pointed out that
according to the U.S. Supreme Court and "other legal authority,"
it is not an equal protection violation. Ms. Benson advised
that this [legislation] impacts families in Alaska because when
judges consider these factors they consider all of the
consequences that result from their decisions. She opined that
the appellate court's [decision] did not mandate Alaska courts
to impose special sentences for non-citizen defendants, or for
anyone, but affirms it is appropriate for a judge to consider
the relevant factor [of deportation] in [sentencing]. Drawing
from her work within the Washington and Alaska courts, she
related that judges factor in matters [such as deportation]
daily and it doesn't mean everyone will avoid deportation. She
maintains that the U.S. Supreme Court mandated, recognized,
sanctioned, specifically authorized, and acknowledged that it is
appropriate for courts to do as instructed by the Appellate
Court in State v. Silvera in Alaska.
1:33:36 PM
REPRESENTATIVE MILLETT inquired as to whether Ms. Stock is in
favor of defendants remaining in state prisons rather than being
deported when the defendant has committed an egregious crime,
such as murder or rape of a child.
1:34:40 PM
MS. STOCK opined that the memorandum from the Attorney General's
office has caused a misunderstanding about the law. Under
federal immigration law there is an "aggravated felony"
definition under which Congress created a list of very serious
crimes, such as murder, rape, and sexual abuse of a minor, and
not so serious crimes that it considers aggravated felonies. In
Silvera and Perez, the defendants were convicted of lesser
offenses that were possibly defined under federal immigration
law as aggravated felonies, although they weren't at the level
of murder, rape, or sexual abuse of a minor. She noted there is
a laundry list of offenses considered aggravated felonies under
federal immigration law and if the definition of one of those
offenses is met, the defendant is not eligible for relief from
deportation. She highlighted that in the United States if a
defendant is convicted of a very serious crime the defendant
faces the consequences of the criminal conviction, serves the
full amount of jail time, is then released to immigration, and
receives a hearing with an immigration judge and possible
deportation.
1:37:04 PM
MS. STOCK reiterated that the issue in Alaska is not regarding
an immigrant doing one day less in jail, but that Alaska will
not recognize [deportation as a factor] and will not reduce a
sentence by one day in order that a defendant is allowed to
plead his/her case before an immigration judge. Consequently,
after convicted [immigrant/non-citizen] Alaskans serve their
criminal sentence they are denied the opportunity to argue their
case before an immigration judge and face automatic deportation,
she opined. She described a possible scenario of a disabled
veteran receiving one day off of his sentence by the three-judge
panel which then allowed him to plead his case before an
immigration judge and argue that he should not be deported. She
noted the judge could still order the veteran deported but it
would not have been mandatory for the immigration judge to order
him deported as it would have been if he had spent the one extra
day in jail. She related her impression that [Amendment 1] is
not anti-immigrant but rather anti-Alaskan due to the number
families it would break up. In fact, she opined that it will
have a large negative impact on Native Alaskans who are in mixed
families in which one member is an immigrant and one is not.
Ms. Stock described another scenario, in which a bread winner
husband is convicted of a relatively minor crime, but one that
is considered an aggravated felony under immigration law is
deported and leaves his wife and children are left destitute in
Alaska and have to turn to the state for aid. If the amendment
passes, immigrants will not have a chance to [go before a three-
judge panel to plead why they should not be deported].
1:39:11 PM
REPRESENTATIVE MILLETT expressed her thanks to Ms. Stock for her
explanation and advised the committee to think seriously about
Amendment 1.
REPRESENTATIVE GRUENBERG thanked the experts who have testified
and advised the committee that Ms. Stock is a recent recipient
of a MacArthur Genius Award.
1:40:41 PM
RUSSELL PRITCHETT, Attorney at Law, Pritchett & Jacobson, P.S.,
informed the committee he has practiced immigration law for
approximately 25 years, is an active member of the Washington
and Alaska Bar Associations, is admitted to the U.S. District
Court for the District of Alaska, and currently practices
immigration law in Washington. He advised he is opposed to HB
218 [Amendment 1] because a three-judge panel should be allowed
to consider the harsh collateral consequences a deported parent
visits upon their U.S. citizen children who remain in the United
States. He referred to a 2010 report entitled, In the Child's
Best Interest, published by the University of California,
Berkley School of Law, which in part found that the deportation
of a parent of a U.S. citizen child creates large secondary,
social, and economic affects and negatively impacts the physical
and mental health of the U.S. citizen children left behind.
Most such children suffer significant behavioral changes and
experience disruption in schooling, struggle to make good
grades, or consider dropping out of school. Furthermore, Ms.
Stock testified that often the deported parent is the bread
winner in the family and that parent's deportation throws the
U.S. citizen children into poverty, which creates a tremendous
burden on society as a whole. Mr. Pritchett then reiterated his
opposition to HB 218 [Amendment 1].
1:43:09 PM
ARUNDEL PRITCHETT, Staff Attorney, Alaska Immigration Justice
Project, advised she is testifying in opposition to [Amendment
1] to HB 218, which precludes immigration consequences from
being considered at sentencing. The aforementioned would lead
to Alaskans being permanently exiled from the United States and
Alaskan families being torn apart. She clarified that she used
the term "would" be permanently exiled and not "could" be
because a non-citizen convicted of an aggravated felony, which
need not be a felony under state criminal law, as Ms. Stock
stated, "will" be deported. She then stressed it is not a
discretionary matter under federal immigration law. Noting she
often represents crime victims, she expressed concern that
victim's rights are included in Alaska's sentencing criteria and
under [Amendment 1] could result in non-crime victims being
exiled from the United States. She related that it is not
uncommon in domestic violence situations for the victim not the
abuser to be convicted of a crime following a domestic violence
incident. Preventing the consideration of immigration
consequences in sentencing could result in the ultimate coup for
the abuser of a non-citizen victim as she could not only be
wrongfully convicted, she opined, but also ultimately banished
from the United States with no hope of ever returning. Ms.
Pritchett disagreed with the assertion that consideration of
immigration consequences and sentencing unlawfully discriminates
against a United States citizen. If the aforementioned is of
concern, she suggested that the legislature lower the
presumptive minimum sentence for certain crimes from 1 year to
364 days, which would allow a state judge to issue a sentence
preventing designation of a conviction as an aggravated felony
under federal immigration law while being equally applicable to
citizens and non-citizens alike.
1:45:51 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration, stated Amendment 1 undermines the
presumptive sentencing scheme put in place by statute and the
sentencing principles articulated in the Alaska State
Constitution. In essence, Amendment 1 eliminates the
consideration of valid sentencing factors, which renders a
sentence unfair. The Attorney General's memorandum is incorrect
as it asserts the rulings in [Silvera and Perez] were based
solely on the determination that manifest injustice would result
by subjecting the defendants to U.S. immigration law.
Furthermore, the analysis is the harsh collateral consequences
which is significant when reviewed with an equal protection
analysis. He opined that the state focuses too narrowly on jail
time as being the assessment of whether or not a sentence is
severe and does not consider the impact of the entire sentence.
He explained the three-judge panel must comply with all
sentencing criteria and, by definition; the sentences will not
be less severe but will be appropriate for the circumstance,
which ultimately promotes uniformity. He described a case
similar to the Silvera case wherein harsh collateral
consequences of loss of medical benefits could have an extreme
consequence if a medical condition is life threatening. Denying
a defendant the opportunity to argue collateral consequences
also undermines the Alaska State Constitution's principles
regarding reformation, deterrence, and protection of the
community, he proffered as well as could undermines the health
of families. He then stressed that just because the collateral
consequence and the non-statutory mitigator had been proven and
had been taken up by the three-judge panel, it does not
necessarily mean the defendant will receive departure under
state law as the sentence as a whole must comply with the Alaska
State Constitutional mandate. The DOL's memorandum is not
correct as it implies that deportation and its consequences are
not constitutionally valid sentencing criteria, except that the
impact of a given sentence and its collateral consequences,
specifically rehabilitation and deterrence, is the very point of
sentencing and is specifically articulated in case law as being
valid considerations. Ultimately, he remarked, there is no
equal protection problem in the U.S. as citizens who are
similarly situated and subject to equally harsh collateral
consequences, whatever they may be, may obtain a referral to a
three-judge panel based upon the same conclusion of manifest
injustice. He explained that even when a non-statutory
mitigator is established and there is a referral to a three-
judge panel, the defendant must argue the ultimate conclusion
that the sentence as a whole is manifestly unjust. He
reiterated that simply proving the non-statutory mitigator
exists and should be considered does not necessarily result in
departure [from the presumptive sentencing range], which is the
analysis under state law sentencing as it relates to the
constitution, he opined.
1:50:39 PM
HEATHER STENSON, Staff Attorney, Alaska Immigration Justice
Project, informed the committee she is a member of the Alaska
Bar practicing immigration law in Anchorage. She related her
firm opposition to [Amendment 1] and agreement with the points
previously articulated by her colleagues. As a legal
professional, she conveyed that [Amendment 1] did not make sense
as it seeks to change an existing careful process. She
explained that to receive other than a presumptive sentence a
judge must carefully screen a case and find, by a very high
standard, that manifest injustice would result from deviation
from a presumptive sentence and refer it to a three-judge panel.
The series of strong procedural safeguards is in place to ensure
that sentences are just. However, excluding consideration of
immigration status from that process limits the court's ability
to do what is just, she opined. Under immigration law a
conviction of a year can be a life sentence when a defendant is
sentenced as an aggravated felon and deported because the
defendant would lose his/her home and family, and the family
would lose a family member; the aforementioned is a major
consequence that should be considered in sentencing. One of the
cases that started this is one in which a man received a
sentence of 364 days rather than 365 days. The 1 day reduction
meant that he served his time rather than serving his time and
then being deported and losing his entire life. The court, she
opined, should be able to consider that. However, this
amendment eliminates the court's ability to do so.
1:53:08 PM
JASON BAUMETZ, Supervising Staff Attorney, Alaska Immigration
Justice Project, noting he is a member of the Alaska Bar with 10
years of experience as an immigration attorney and stated his
opposition to [Amendment 1]. Drawing from his experience as an
immigration attorney, he opined that it is fair, appropriate,
and essential that sentencing courts are allowed to consider
immigration consequences together with other mitigating and
aggravating factors in forming its sentencing decisions.
1:54:14 PM
RICHARD ALLEN, Director, Office of Public Advocacy, Department
of Administration, remarked that although previous testimony
addressed [Amendment 1] issues, the issue is allowing courts the
authority to evaluate a specific case and consider the totality
of the circumstances before rendering a sentence. He emphasized
that it is important to give judges that sort of discretion in
these cases.
1:55:35 PM
ANNIE CARPENETI, Assistant Attorney General, Legal Services
Section, Department of Law (DOL), clarified that although she is
not an expert in immigration law, Assistant Attorney General Ann
Black, Office of Special Prosecutions & Appeals (OSPA), (DOL),
does know immigration law and can answer questions. Ms.
Carpeneti then defended Deputy Attorney General 2/11/14,
memorandum to House Speaker Mike Chenault stating it was not a
legal memorandum, or a treatise on immigration law or intended
to describe nuances in immigration law. The memorandum rather
was to summarize a proposed amendment and the reasons DOL
supports the amendment. Ms. Carpeneti agreed with Ms. Stock in
that a naturalized citizen could be convicted of a crime that
may result in a de-naturalization procedure. She acknowledged
that Mr. Steiner and other witnesses presented good testimony
regarding Alaska's sentencing law. Ms. Carpeneti explained that
the legislature has adopted presumptive sentencing ranges for a
defendant convicted of a crime in Alaska. Furthermore, a
sentencing court has the authority to increase a sentence to the
maximum range or decrease the sentence within the [presumptive]
range for factors in aggravation and mitigation if proven by
clear and convincing evidence by the party proposing them. If
there are no statutory aggravators or mitigators provided in
Alaska's law, then defendant has the ability to prove that
manifest injustice will occur as a result of a sentence in the
presumptive range for factors not set out in statute, and thus
the case should be sent to a three-judge panel to consider that
factor, she opined. The three-judge panel has the ability to
sentence a defendant to any term authorized in statute, from
zero to the maximum.
1:58:42 PM
MS. CARPENETI recalled Mr. Steiner's testimony that every
criminal sentence whether presumptive, mitigated, or aggravated
must be based on criteria set out in AS 12.55.005, also known as
the "chain of criteria," that was provided in the Alaska State
Constitution and adopted by the Alaska Supreme Court many years
ago. The factors are rehabilitation, deterrence of self and
others, affirmation of community norms, and where necessary,
isolation of someone to protect the public as well as a victim's
rights. Ms. Carpeneti explained that avoiding control and
influencing the application of federal immigration law is not
listed in State of Alaska v. Chaney, [477 P.2d 441, Alaska
1970], in Alaska Statute, or the Alaska State Constitution. She
offered that Amendment 1 simply provides that whatever the
federal government may or may not do to a defendant when
sentenced under state law should not be considered by a state
sentencing court. She then expressed concern with Ms. Stock's
testimony that under federal law once a defendant has been
convicted as an aggravated felon, the defendant will be deported
and there is little discretion. Drawing from conversations with
Ms. Black and others, Ms. Carpeneti opined there is actually
much discretion within the Department of Justice as to whether
or not it deports a defendant. She then referred to memorandum
DOL received from an Immigration and Customs Enforcement (ICE)
attorney that lists various factors ICE attorneys consider when
deciding whether to initiate deportation proceedings involving a
person who has been convicted of an aggravated felony. These
factors include specific emphasis on serving in the U.S.
military, whether an illness is involved, and "various items".
Unfortunately, she shared, even though ICE attorneys have
provided DOL with advice, the ICE attorneys do not testify and
will not be put on the record regarding factors they consider.
She mentioned that DOL has memorandums from ICE attorneys
available [for the committee] that may be helpful.
2:01:31 PM
MS. CARPENETI reiterated that [the factors used to determine]
whether or not the federal government will exercise its
discretion to determine if a deportable defendant should, or
should not, be deported is not in the Alaska State Constitution
or Alaska Statutes. Alaska's sentencing laws are designed to
promote reasonable uniformity in sentencing for criminal acts
that are similar, and whether or not a defendant performing a
[criminal] act similar to a deportable defendant is difficult to
predict. As Ms. Stock testified, federal law dealing with
immigration status is very complicated. Ms. Carpeneti
emphasized that the committee should seriously consider whether
attorneys in DOL who are district attorneys and not experts in
immigration law should be dealing with these issues. Criminal
attorneys in DOL enforce the laws and sentences the legislature
establishes under Alaska Statute and the Alaska State
Constitution. She then expressed concern with safety issues.
In Silvera, a non-citizen, was convicted of stabbing a person in
the face, sent to a three-judge panel, and sentenced to 364 days
to avoid being classified as an aggravated felon. The issue is
not that Mr. Silvera received one day less when another
defendant would have been sentenced within the range of 1-3
years, the issue is the lack of any period of supervised
probation. The fact that Mr. Silvera was not supervised, she
opined, is a question of public safety that should be addressed.
Ms. Carpeneti informed the committee of a current case on appeal
wherein the sentencing court did not send the case of a man
convicted of attempted sexual abuse of a minor to a three-judge
panel. The defendant claimed at sentencing that he was
potentially deportable and should be sentenced to a period of
time that would avoid any period of supervision, sex offender
treatment, or various [programs] the state [offers] to help
defendants who are transitioning into life after a sentence is
served, she related.
2:04:57 PM
MS. CARPENETI stated her agreement with Ms. Stock that
immigration law is very complex, which she believes makes the
case for Amendment 1 in that criminal courts should not try to
determine if a sentence within the presumptive range would raise
issues of federal deportation rather state law should be applied
in a neutral manner and not factor in [deportation]. Ms.
Carpeneti stated her disagreement with a local newspaper's
description of [Amendment 1] as an anti-immigration law and she
explained that [Amendment 1] is intended to apply these factors
as neutral for every person when sentencing for the same
criminal act.
2:05:50 PM
REPRESENTATIVE LYNN related his great confidence in the advice
he has received from DOL over the years. He acknowledged that
everyone isn't an expert on all areas [of law], but opined that
DOL has resources available to call upon for immigration issues
or any other issue.
2:06:45 PM
REPRESENTATIVE GRUENBERG recalled Ms. Carpeneti's comment that
immigration is "a very specific and specialized area of the
law."
2:07:03 PM
MS. CARPENETI clarified that her words were, "it is a very
complicated area. In further response to Representative
Gruenberg, advised that DOL does not have a dedicated expert in
immigration law, but Ms. Black has spent a lot of time in the
last several years dealing with such issues.
2:07:49 PM
REPRESENTATIVE GRUENBERG questioned whether Ms. Carpeneti
believes one person would be enough to handle the anticipated
case load with Amendment 1 or would more staff be necessary to
handle immigration cases. He then pointed out that HB 218 is
not referred to the House Finance Committee. Representative
Gruenberg clarified that he is asking whether DOL could handle
the additional sentencing, as potentially there will be
significant appellate and constitutional questions with the
passage of Amendment 1.
MS. CARPENETI stated she has incredible faith in the attorneys
in the Office of Special Prosecutions & Appeals (OSPA) and
advised she does not have the answer to resource issues.
CHAIR KELLER related his understanding the Ms. Carpeneti said
DOL has the personnel to handle the analysis of this bill.
2:10:26 PM
REPRESENTATIVE GRUENBERG, referring to the testimony of Ms.
Benson and Ms. Stock's allegations of erroneous legal advice in
the memorandum, queried if Ms. Carpeneti would like to respond
to Ms. Benson and Ms. Stock's specific allegation of the House
Judiciary Standing Committee being unintentionally mislead by
the 2/11/14 memorandum from Deputy Attorney General Svobodny.
MS. CARPENETI responded that Ms. Stock and Ms. Benson were
criticizing the memorandum as if it were a nuanced legal brief
dealing with legal issues, although it was simply a memo
describing a bill, an amendment, and a concern DOL has about
sentencing. She opined that DOL's OSPA attorneys could answer
all of the questions raised by Ms. Stock and [Ms. Benson] as the
issue is simply whether or not the possibility of deportation
should be a consideration for state court judges when sentencing
defendants for the commission of crimes. In response to
Representative Gruenberg, Ms. Carpeneti advised that Ms. Black
is very familiar with the Padilla case and is online.
2:12:27 PM
REPRESENTATIVE FOSTER queried if Ms. Carpeneti had a sense of
how many additional cases would come forth due to [Amendment 1].
MS. CARPENETI opined that after any litigation regarding the
validity of the law that is passed would result in less
litigation. She deferred to Ms. Black.
2:13:15 PM
CHAIR KELLER interjected that it appeared odd to him that the
legislature is discussing subservience to an immigration judge's
decision on deportation that is future. He questioned why the
aforementioned even has to be taken into consideration and
whether it's tied into manifest injustice. Is manifest
injustice a gateway to the three-judge panel for more than just
immigration.
MS. CARPENETI responded there are various factors not in the
statutory mitigators that a defendant can raise to the three-
judge panel if a defendant has proven to the sentencing court
that manifest injustice would occur from a sentence within the
presumptive range.
2:15:24 PM
ANN BLACK, Assistant Attorney General, Appeals Unit, Office of
Special Prosecutions & Appeals (OSPA), Department of Law (DOL),
stated she has 30 plus years of legal experience, including
practicing law in the Alaska state courts, federal courts with
district courts, and federal circuit courts of appeals in
federal habeas [corpus] claims. She related that she is
[admitted to practice before] the United States Supreme Court,
and prior that a former Judge Advocate General with
approximately 10 years in the military courts. She agreed with
Ms. Carpeneti that the Deputy Attorney General Svobodny
memorandum is not a comprehensive treatise with regard to Alaska
constitutional law, Alaska criminal law or federal and
immigration law. Furthermore, it in no way covers the
complexities of federal immigration law. She opined that the
legislation is designed to address the fact that Alaska's
criminal sentencing judges and district attorneys do not have
the expertise [in immigration law] of Ms. Stock and prior
witnesses. Alaska's criminal judges are making assumptions
about federal law and the state's district attorneys are not in
a position to adequately educate Alaska's criminal judges
regarding the actual consequences and intricacies of immigration
law, she further opined.
2:17:44 PM
MS. BLACK remarked that the panel of three state judges is asked
to answer extremely weighty policy questions and determine
important decisions while "dabbing" in an area of [federal] law
in which they lack sufficient knowledge. With regard to the
Padilla case, Ms. Carpeneti took exception with Ms. Stock's
interpretation because, while the quotes she read to the
[committee] are quotes from the case, they were taken out of
context and omit the fact that the U.S. Supreme Court in Padilla
decided the ability of a sentencing judge to intentionally
control the outcome of an immigration proceeding based on
criminal conduct does not exist. In Padilla, she pointed out,
the Supreme Court went out of its way to say that while judges
previously [controlled the outcome of an immigration proceeding
based on criminal conduct] Congress determined it no longer
wanted judges doing that. Within the federal context, the claim
that federal law permits judges to impose a sentence for the
purpose of affecting deportation is not accurate, she explained,
as every federal court that has addressed the issue,
specifically the following Courts of Appeal: 2nd, 5th, 8th, 9th,
10th, 11th, and D.C. circuits, have all held that attempting to
assist a defendant avoid deportation is not proper sentencing
criteria. Ms. Black explained [Amendment 1] provides that
Alaska is indifferent to the federal government as Alaska
applies its sentencing and criminal justice criteria regardless
of what the federal government's policy is, will be, or may be.
To that extent, she noted, [Amendment 1] is not regarding being
subservient to the federal government, but is instead regarding
independence from the federal government.
2:20:41 PM
MS. BLACK said prior discussions regarding certain defendants
automatically being deported is problematic because "it" started
too far down the system in order for defendants like Mr. Silvera
or Mr. Perez to be considered deportable under federal statutes
as they would have to meet the criteria of having committed an
aggravated felony because they committed a crime of violence for
which a sentence of one year or more is imposed. In both
Silvera and Perez, the defendants requested a shorter sentence
than a [U.S.] citizen would have received so they would no
longer be qualified as deportable, and therefore would not face
federal immigration judges. She noted disagreement with the
earlier remarks that this isn't about "people getting out of
jail earlier," and proffered that the prior discussion is
regarding defendants pleading their cases before three-judge
panels and requesting the judges not impose what the Alaska
Legislature determined should be presumptively imposed. The
aforementioned is desired in order that federal immigration law
dictates their sentences. Ms. Black recalled a prior suggestion
wherein the legislature changes the [preemptive sentences] by at
least one day in order that sentences fall outside of the
federal definition of a crime of violence and an aggravated
felony. In essence, such a suggestion is requesting the Alaska
Legislature allow the federal government to dictate what
appropriate [state] sentences should be, she opined. She
submitted that it is not an appropriate consideration for a
three-judge panel or for the state legislature.
2:23:08 PM
MS. BLACK explained that rehabilitating a defendant, or
protecting the public from future misconduct of the defendant,
or adequately expressing Alaskan citizen's condemnation of the
defendant's behavior. She stated that this legislation treats
all defendants equally in Alaska's criminal courts, such that
they all will be afforded the same benefits and same
consequences. The consequences defendants may or may not face
in the federal system should not be relevant as to whether a
particular state sentence will be effective in terms of things.
Under State of Alaska v. Chaney, [477 P.2d 441, Alaska 1970],
the Alaska Statutes, and the Alaska State Constitution, the
sentencing courts are requested to decide effectiveness of
sentences and this legislation ensures uniformity which reduces
guesswork. Currently, she opined, the state's three-judge
panels are operating blindly and the state's district attorneys
cannot provide them full well-rounded [immigration law]
guidance. Although DOL has requested assistance from ICE
attorneys and enforcement officers, the department has been told
that "we cannot make advisory opinions and we cannot tell you
what will be the consequence." Over the past three years, Ms.
Black conveyed, she has been in contact with ICE officials who
tell her "I don't understand why your state sentencing courts
are worried about imposing a sentence that may or may not result
in deportation. The way our system operates is we presume that
states will impose sentences based on state concerns and state
criteria without regard to the federal government." She
explained that only after the state has completely concluded its
interest in a defendant will ICE attorneys and immigration
officials begin their process with the defendant. The state
[criminal] system and the federal immigration system are two
very independent systems and just because one system takes up
its work after another does not make one system subservient or
dependent on the other system. Thus, [Amendment 1] ensures that
Alaskan courts are independent of federal immigration law, she
opined.
2:25:27 PM
MS. BLACK related that this legislation protects the rights of
crime victims as it ensures victims that Alaska's sentencing
courts will not treat their victimization as less worthy of
redress just because the assailant is not a U.S. citizen and
subject to deportation. She noted that [Amendment 1] fosters
rehabilitation as Alaska's courts consistently turn to suspended
impositions of sentences, which works as both the "carrot and
the stick" to ensure that a released defendant is held
accountable in attending and complying with ordered
rehabilitative treatment and also conforms its behavior [to
society's standards]. Under the federal system, suspended time
is figured into whether or not a person has committed a crime
for which a sentence of a year or more has been imposed. Ms.
Black explained that whether a state's definition of a crime and
a state's sentence for a crime qualifies as a crime of violence
and potentially an aggravated felony are "terms of art." The
federal government does not rely on Alaska's definitions as it
defines a crime of violence in an extremely specified way. For
instance, there is federal case law that includes the 9th
Circuit in which a person can shoot a gun at a building they
know to be occupied and that action is not considered a crime of
violence under the federal immigration code, she noted. Ms.
Black describes [immigration law] as a complex system with often
counter-intuitive "terms of art" of which Alaska's judges are
not experts. She offered that the state should not ask its
judges to divert state resources by diverting judge's dockets to
determine whether it is appropriate for an offender to remain in
the country. Alaska's judges are taxed with deciding
appropriate [state] sentences to ensure offenders will no longer
re-offend or pose a threat to the public and ensure that the
rights of Alaskan victims are protected, she further opined.
2:28:37 PM
MS. BLACK posited that many of the comments in the memorandum
had already been vetted by the National Association of Attorneys
General (NAAG) for their legal accuracy. Furthermore, while the
memorandum [was never intended to] constitute a treaties, it is
not inaccurate and does not present an incorrect view of the
law. In response to Chair Keller, Ms. Black confirmed her
availability and stated she has performed extensive research and
briefing with regard to the interplay of Alaska constitutional
and criminal law as well as federal law.
2:30:34 PM
CHAIR KELLER announced that HB 218 would be set aside.
2:30:37 PM
The committee took an at-ease from 2:30 to 2:35 p.m.
[Chair Keller passed the gavel to Vice Chair Lynn]
2:35:36 PM
VICE CHAIR LYNN announced that the next order of business would
be HOUSE BILL NO. 284, "An Act relating to an interstate compact
on a balanced federal budget."
HB 284-COMPACT FOR A BALANCED BUDGET
2:36:03 PM
CHAIR KELLER, speaking as prime sponsor of HB 284, informed the
committee that HB 284 addresses the federal national debt and
proposes a specific constitutional balanced budget amendment.
There are several states involved in [the Constitutional
Amendment movement] and the Goldwater Institute is presenting
the idea of continuing the "Compact for America" [movement]. He
explained that the bill applies [U.S. Constitution] Article V
conditions and uses the compact approach in order to become a
U.S. Constitutional Amendment. The U.S. Constitution, Article
V, lays out two avenues of proposing amendments and two avenues
for proposing amendments and ratifying them. He directed
attention to Article V, which read:
Article V
The Congress, whenever two thirds of both houses shall
deem it necessary, shall propose amendments to this
Constitution, or, on the application of the
legislatures of two thirds of the several states,
shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents
and purposes, as part of this Constitution, when
ratified by the legislatures of three fourths of the
several states, or by conventions in three fourths
thereof, as the one or the other mode of ratification
may be proposed by the Congress; provided that no
amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth
section of the first article; and that no state,
without its consent, shall be deprived of its equal
suffrage in the Senate.
2:40:53 PM
NICK DRANIAS, Director, Constitutional Policy, Policy and
Development, Goldwater Institute, noted that he is on the Board
for Compact for America, Inc., is a 16-year attorney of which 8
years has been focused in constitutional law and he has been
involved in developing Article V approaches and researching the
issue for 4 years. He then related that his main claim to fame
is a successful win in the U.S. Supreme Court striking down
Arizona's system of campaign finance regulations. He noted that
[the Goldwater Institute] published Professor Robert G.
Natelson's, three-part series in the fall of 2010 and early
2011, which has proven to be seminal in providing guidance to
Article V aficionados throughout the country. Mr. Dranias,
focusing on the Compact for America Balanced Budget referred to
the slide entitled "Your Future is at Stake" depicting the
nation's current gross federal debt, not only the portion held
by the public. He opined the gross federal debt is relevant to
[the United States'] credit rating and described the U.S. as
being at 107 percent of Gross Domestic Product (GDP), a
situation the U.S. has not experienced since the height of World
War II. The aforementioned is not a sustainable situation as
the U.S. cannot easily grow its way out, and in fact, it may be
impossible. The degree of unsustainability and "crazy" fiscal
policy going on in Washington must end. Referring to a slide
entitled "It Isn't Getting Better" depicting how the deficit has
narrowed from $1.1 trillion last year [2013] to $650 billion, he
advised that those figures possess no value because the U.S. is
increasing its debt at a pace over several hundred billion
dollars, given the amount of debt already accrued, and it is
continuing along the unsustainable same path. He likened the
fiscal situation in the U.S. to that of Greece five or six years
ago when Europeans began to panic. He then opined that the
fundamental problem with the debt is that of concentrated power
in which the debtor is able to set their own credit limit.
Therefore, that concentration of power needs to be broken up and
the plan is to have a balanced budget amendment as contained in
HB 284 that is a plausible and bi-partisan route de-centralizing
the power over debt and limiting the ability of a debtor to
write their own credit limit.
2:45:04 PM
MR. DRANIAS, referring to the slide entitled "A BBA that Divides
Power is the First Payload," explained that the balanced budget
amendment was developed with the goal of reaching 38 states and
is an idea that should command respect and support from the
center-left, center, to center-right. In fact every component
of the balanced budget amendment has been poll tested by
McLaughlin & Associates at over 60 percent approval ratings. He
then reviewed the sections of the balanced budget amendment as
follows: Section 1 defines what balance would be and limits
spending to the actual cash in the bank at all times. The
definition of a balance is that spending at all points in time
are limited to tax revenues or the equivalent. A consequence is
that there must be a revolving line of credit to "smooth out"
the tax cash flow volatility, he opined. Therefore, Section 2
provides a large revolving line of credit that initially is set
at 105 percent of the outstanding debt and the extra 5 percent
is designed to provide a transition period to the use of debt so
that within an adequate time, the hard choices are made.
However, ultimately there is a constitutionally fixed debt limit
that would be enforced unless that debt limit can be lifted.
Section 3 ensures that the concentration power problem is
lifted. He explained that if any increase in this "huge"
initial line of credit were deemed necessary, it would have to
be in the form of a proposal requiring a referendum of the
states. In essence, he summarized, Congress would have to
"refer up" the states and secure support from 26 state
legislatures, a simple majority and not a super majority, of any
proposed increase in the debt limit. He opined that this makes
good fiscal sense as it introduces the states as sort of a
fiscal board of directors that intervenes and provides
supervision for a wayward CEO. Section 4 enforces the debt
limit without damaging the U.S. credit history and rating.
Within the current statutory debt limit system, he noted, there
are "games of chicken" that arise each time it comes into play
and this amendment creates a process by which the "game of
chicken" cannot happen. In essence, he opined, the president
will now have to name what he will impound, delay, not pay, or
what he will prioritize over others in terms of spending, at 98
percent of the debt limit. He explained that the extra 2
percent basically provides 6-12 months prior to the initial debt
limit, assuming it is ratified in the near future. Therefore,
the president, 6-12 months prior to reaching the debt limit,
will have a constitutional obligation to identify exactly what
he would impound if that debt limit were enforced. Mr. Dranias
acknowledged that is a considerable amount of power, but advised
it is not new power as the president has the inherent implied
power to do impoundments whenever there are not adequate monies
to support appropriations. This amendment requires the
president to exercise his power in advance. If the president
lays out a plan for impoundment with which Congress disagrees,
then Congress can override those impoundments within 30 days by
a simple majority concurrent resolution with equal or greater
amounts. The idea, he clarified, is not to secure the
impoundments, but rather to [make the plans known] 6-12 months
before reaching the debt limit so everyone has a clear sense of
what is at stake if that debt limit, as it is currently set,
will be enforced. Section 5 ensures that if the debt problem is
to be fixed, the U.S. does not destroy its capacity for economic
growth by over raising taxes. He explained that debt is taxes
and if the intention is to pay the debt, then the U.S. does not
want to have taxes so high it destroys its capacity to grow and
pay back that debt. Therefore, the compromise to limit tax rate
increases which would require a super majority vote, 2/3 of the
whole number of each house for any increase in existing income
taxes, general revenue taxes, or any new general revenue tax, he
explained. Furthermore, three powerful" exceptions were created
to allow a reasonable degree of revenue increases: replace the
income tax with an end user non-VAT [Value-Added Tax] sales tax
that is sometimes called the "fair tax;" eliminate deduction
credits and loop hole exemptions that is sometimes called
"making tax flatter;" and implicit exception in the definitions
the Goldwater Institute uses regarding the possibility of
raising tariffs and fees. He specified that those exceptions
could result in new revenues with simple majorities as it is
done now. The special interest "push back" will be fairly
strong, he expected, and if the people's representatives in
Washington are able to overcome that special interest push back,
it would show a genuine consensus on the need for new revenues
rather than relying on spending cuts. He opined that the
overall incentive structure would incentivize spending cuts
first as the root problem is spending beyond [the nation's]
means. He further opined that revenue increases would be
possible and would be obtained through forms of revenue
increases that would either flatten or make the tax code more
voluntary. He reiterated that the poll tests performed by
Goldwater Institute and others are fairly consistent and go back
40 years.
2:54:59 PM
[Vice Chair Lynn passed the gavel to Chair Keller.]
2:55:09 PM
CHAIR KELLER explained that the bill's premise is that the debt
problem is a crisis and the "Compact for America" Amendment
introduces checks and balances necessary to address the debt
issue. He questioned the status of other states taking this
amendment forward.
MR. DRANIS stated that the Georgia House of Representatives
recently passed a similar bill out of its House with a 103:63
vote. The bill is pending in Arizona, is on the table in
Arkansas where a fiscal limit may preclude it from being heard,
and may possibly be introduced in Louisiana and Ohio. The
intent, he noted, is to keep "this session" narrow so that the
compact legislation is substantively identical, he opined.
2:57:51 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:57 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 218~DOC Response to Perez Assault of State Witness Question.pdf |
HJUD 2/21/2014 1:00:00 PM |
HB 218 |
| HB 218 Northwest Immigrant Right Project Letter of Opposition to Amendment A.2.pdf |
HJUD 2/21/2014 1:00:00 PM |
HB 218 |
| HB 284 Corrected Sectional Analysis.pdf |
HJUD 2/21/2014 1:00:00 PM |
HB 284 |
| HB 284 One Page Overview.pdf |
HJUD 2/21/2014 1:00:00 PM |
HB 284 |
| HB 284 Feb. 21 Goldwater Presentation.pdf |
HJUD 2/21/2014 1:00:00 PM |
HB 284 |