Legislature(2005 - 2006)CAPITOL 120

02/02/2005 01:00 PM JUDICIARY

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01:13:10 PM Start
01:14:29 PM Therapeutic Courts Alaska Court System & Partners for Progress
01:45:31 PM SB56
02:14:33 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview: Therapeutic Courts TELECONFERENCED
AK Court System & Partners for Progress
Bills Previously Heard/Scheduled
Heard & Held
<Bill Hearing Postponed to Fri. 2/4/05>
<Bill Hearing Postponed to Fri. 2/4/05>
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                        February 2, 2005                                                                                        
                           1:13 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson                                                                                                     
Representative John Coghill                                                                                                     
Representative Nancy Dahlstrom                                                                                                  
Representative Pete Kott                                                                                                        
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
OTHER LEGISLATORS PRESENT                                                                                                     
Representative Ethan Berkowitz                                                                                                  
Representative David Guttenberg                                                                                                 
Representative Ralph Samuels                                                                                                    
COMMITTEE CALENDAR                                                                                                            
OVERVIEW(S):  THERAPEUTIC COURTS, ALASKA COURT SYSTEM & PARTNERS                                                                
FOR PROGRESS                                                                                                                    
     - HEARD                                                                                                                    
CS FOR SENATE BILL NO. 56(JUD)                                                                                                  
"An Act relating to criminal law and procedure, criminal                                                                        
sentences, and probation and parole; and providing for an                                                                       
effective date."                                                                                                                
     - HEARD AND HELD                                                                                                           
HOUSE BILL NO. 88                                                                                                               
"An Act  relating to certain  weapons offenses  involving minors;                                                               
to  aggravating  factors  in   sentencing  for  certain  offenses                                                               
committed  against  a  school  employee;  and  providing  for  an                                                               
effective date."                                                                                                                
     - BILL HEARING POSTPONED TO 2/4/05                                                                                         
HOUSE BILL NO. 41                                                                                                               
"An  Act relating  to  minimum periods  of  imprisonment for  the                                                               
crime  of  assault in  the  fourth  degree committed  against  an                                                               
employee of an  elementary, junior high, or  secondary school who                                                               
was engaged  in the performance of  school duties at the  time of                                                               
the assault."                                                                                                                   
     - BILL HEARING POSTPONED TO 2/4/05                                                                                         
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 56                                                                                                                   
SHORT TITLE: CRIMINAL LAW/PROCEDURE/SENTENCING                                                                                  
SPONSOR(S): SENATOR(S) THERRIAULT                                                                                               
01/14/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/14/05       (S)       JUD, FIN                                                                                               
01/18/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
01/18/05       (S)       Heard & Held                                                                                           
01/18/05       (S)       MINUTE(JUD)                                                                                            
01/19/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
01/19/05       (S)       Heard & Held                                                                                           
01/19/05       (S)       MINUTE(JUD)                                                                                            
01/20/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
01/20/05       (S)       Moved CSSB  56(JUD) Out of Committee                                                                   
01/20/05       (S)       MINUTE(JUD)                                                                                            
01/21/05       (S)       JUD RPT CS  3DP 1NR  SAME TITLE                                                                        
01/21/05       (S)       LETTER OF INTENT WITH JUD REPORT                                                                       
01/21/05       (S)       DP: SEEKINS, HUGGINS, THERRIAULT                                                                       
01/21/05       (S)       NR: FRENCH                                                                                             
01/21/05       (S)       FIN REFERRAL WAIVED                                                                                    
01/26/05       (S)       TRANSMITTED TO (H)                                                                                     
01/26/05       (S)       VERSION: CSSB 56(JUD)                                                                                  
01/28/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/28/05       (H)       JUD, FIN                                                                                               
01/28/05       (H)       LETTER OF INTENT                                                                                       
01/31/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/31/05       (H)       Heard & Held                                                                                           
01/31/05       (H)       MINUTE(JUD)                                                                                            
02/02/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
ROBYN JOHNSON, Therapeutic Courts Coordinator                                                                                   
Alaska Court System (ACS)                                                                                                       
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Assisted with  the overview  of therapeutic                                                               
JANET McCABE, Chair                                                                                                             
Partners for Progress, Inc.                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Assisted with  the overview  of therapeutic                                                               
JAMES N. WANAMAKER, Director                                                                                                    
Alaska Center for Therapeutic Justice                                                                                           
Partners for Progress, Inc.                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Assisted with  the overview  of therapeutic                                                               
ACTION NARRATIVE                                                                                                              
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order at  1:13:10  PM.    Representatives                                                             
Anderson, Coghill, Kott, and McGuire  were present at the call to                                                               
order.   Representatives Gruenberg,  Dahlstrom, and  Gara arrived                                                               
as  the meeting  was  in progress.   Representatives  Guttenberg,                                                               
Berkowitz, and Samuels were also in attendance.                                                                                 
^THERAPEUTIC COURTS ALASKA COURT SYSTEM & PARTNERS FOR PROGRESS                                                               
1:14:29 PM                                                                                                                    
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be the overview of therapeutic courts.                                                                                          
ROBYN  JOHNSON,  Therapeutic  Courts  Coordinator,  Alaska  Court                                                               
System  (ACS),  introduced  Don   Smith,  administrator  for  the                                                               
Highway  Safety Office,  Department  of  Transportation &  Public                                                               
Facilities (DOT&PF), and Wendy Hamilton,  project manager for the                                                               
planned Juneau  Wellness Court, which  was funded by  the Highway                                                               
Safety Office.                                                                                                                  
1:16:19 PM                                                                                                                    
JANET  McCABE, Chair,  Partners  for Progress,  noted that  Judge                                                               
James Wanamaker  recently retired  from the  court system  and is                                                               
now director of the Alaska  Center for Therapeutic Justice, which                                                               
is an  arm of  Partners for  Progress.  She  said that  there are                                                               
three main  purposes for  this overview: to  explain how  and why                                                               
therapeutic courts are effective;  to show how therapeutic courts                                                               
protect  the public;  and to  request that  the legislature  work                                                               
with  the  administration  to strengthen  the  therapeutic  court                                                               
system.    Ms.  McCabe  said   she  is  also  promoting  proposed                                                               
recommendations  to  be  included  as  part  of  a  comprehensive                                                               
strategy to address alcoholism and addiction.                                                                                   
Ms.  McCabe stated  that in  the 1980s,  courts started  creating                                                               
mandatory  penalties  for  crimes  related to  drug  and  alcohol                                                               
addiction.   She said the  increased penalties were  effective in                                                               
reducing  crime  among social  drinkers,  but  had no  affect  on                                                               
strongly addicted offenders,  so some judges started  to look for                                                               
a better way.  The first  therapeutic court started in Florida in                                                               
1989, and now  there are over 1621 such courts  nation-wide.  She                                                               
compared these  courts to the  "wellness court" started  by Judge                                                               
Wanamaker in  Anchorage.   She opined that  it is  fortunate that                                                               
the  Alaska legislature  is supportive.   She  then relayed  that                                                               
Anchorage municipal  prosecutor, John McConnaughy, has  said that                                                               
the  need for  these  courts  is obvious,  and  that  there is  a                                                               
certain population  out there  that clearly  does not  respond to                                                               
the traditional  model of the  criminal justice system,  and that                                                               
offenders  with  multiple  driving   under  the  influence  (DUI)                                                               
arrests do  not respond  to the  increasing punishment  that they                                                               
get.  Most of these offenders  are highly addicted, she said, and                                                               
the  traditional model  required a  rehabilitation program  after                                                               
sentencing, but  50 percent of  this group never even  "sign up,"                                                               
and those that do generally do not complete the program.                                                                        
MS.  McCABE  stressed  that protecting  the  public  is  primary.                                                               
Serious  repeat alcoholics  always come  out of  jail, "and  once                                                               
they get out they are an extreme  danger to the public - a car in                                                               
their hands is a deadly instrument," she warned.                                                                                
1:24:55 PM                                                                                                                    
JAMES  N.  WANAMAKER,  Director, Alaska  Center  for  Therapeutic                                                               
Justice, Partners for Progress, Inc.,  noted that he's a recently                                                               
retired  judge from  Anchorage's  Third Judicial  District.   The                                                               
main  goal of  Partners for  Progress is  to promote  therapeutic                                                               
courts,  he stated.   The  group supports  a forthcoming  bill by                                                               
Representative  Rokeberg which  will  extend  the wellness  court                                                               
method.    He  expressed appreciation  for  previous  legislation                                                               
setting up a system for  wellness courts, specifically the one in                                                               
1:28:41 PM                                                                                                                    
MR. WANAMAKER  showed the  committee a  chart indicating  that of                                                               
people  going  through  the traditional  court  system,  only  33                                                               
percent did not  repeat their crime.  In wellness  court cases of                                                               
2001 and 2002, 75 percent of  offenders remain free of crime, and                                                               
for  2003, 100  percent of  the offenders  have remained  free of                                                               
repeat  crime to  date.   These  are  outstanding statistics,  he                                                               
said.  The  therapeutic court model is effective  because it gets                                                               
the  offender  to  treatment  immediately.    Treatment  involves                                                               
medication and  moral recognition therapy.   He said that  in the                                                               
traditional  system, all  "the players"  are working  separately,                                                               
and with the new system, everyone  is at the same table trying to                                                               
rid the offender of the addiction.                                                                                              
1:33:18 PM                                                                                                                    
MR. WANAMAKER  stated that defendants  are "pretty  much ordinary                                                               
folks"  with  an addiction  who  are  offered an  opportunity  to                                                               
rebuild their lives.  There  are long-term economic advantages to                                                               
the state, he said, and it  is an excellent program to rid people                                                               
of  addictions thereby  protecting  the  public from  intoxicated                                                               
drivers.   He said that the  court system agrees and  has hired a                                                               
therapeutic courts  coordinator.  In Alaska,  there are currently                                                               
seven of these courts, he said,  and four more are being created.                                                               
Mr. Wanamaker said he wants  the executive branch to provide more                                                               
support for the new system,  noting that there have been problems                                                               
with the Department of Corrections.   Mr. Wanamaker said that the                                                               
Highway  Traffic   Safety  office   has  invested   $800,000  for                                                               
therapeutic courts,  which would  benefit from  increased support                                                               
at the administration level.                                                                                                    
1:38:31 PM                                                                                                                    
MS. JOHNSON said  the first therapeutic courts  were drug courts,                                                               
and  they now  have additional  titles, such  as problem  solving                                                               
courts,  DUI  courts,  wellness  courts,  and  specialty  courts.                                                               
Nationally  they are  called  drug  courts.   "The  main drug  of                                                               
choice for Alaskans  is alcohol," she said,  so alcohol addiction                                                               
is Alaska's focus.  Also, there  is a "mental health" court and a                                                               
"family  dependency court."   She  relayed  that Judge  Stephanie                                                               
Rhoades of Alaska  started one of the first  mental health courts                                                               
in  the country,  and it  is used  as a  model for  other states,                                                               
adding  that Alaska's  Judge James  Wanamaker  helped create  the                                                               
wellness court.   There  is a  four-year study  on that  model to                                                               
determine its  transferability to  the rest of  the nation.   Ms.                                                               
Johnson noted that  funding sources are varied.   The legislature                                                               
has  funded several  of the  courts,  she added,  and the  Alaska                                                               
Mental Health Trust  Authority (AMHTA) is very  supportive of the                                                               
mental health courts.   Ms. Johnson pointed  out that therapeutic                                                               
courts are not  feasible in all Alaskan communities,  so there is                                                               
an effort to train judges to  integrate some of the principles of                                                               
therapeutic justice into their practice.                                                                                        
1:44:02 PM                                                                                                                    
MS. JOHNSON  quoted a statement  by President Bush in  support of                                                               
drug courts [original punctuation provided by Ms. Johnson]:                                                                     
     Drug courts are an effective  and cost efficient way to                                                                    
     help non-violent  drug offenders  commit to  a rigorous                                                                    
     drug  treatment   program  in  lieu  of   prison.    By                                                                    
     leveraging the  coercive power of the  criminal justice                                                                    
     system,  drug courts  can alter  the  behavior of  non-                                                                    
     violent,   low-level    drug   offenders    through   a                                                                    
     combination of  judicial supervision,  case management,                                                                    
     mandatory  drug   testing,  and  treatment   to  ensure                                                                    
     abstinence from drugs, and escalating sanctions.                                                                           
CHAIR McGUIRE thanked the speakers for their presentation.                                                                      
SB 56 - CRIMINAL LAW/PROCEDURE/SENTENCING                                                                                     
1:45:31 PM                                                                                                                    
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be CS FOR  SENATE BILL NO. 56(JUD), "An Act  relating to criminal                                                               
law and procedure, criminal sentences,  and probation and parole;                                                               
and providing  for an  effective date."   [CSSB 56(JUD)  had been                                                               
amended twice on 1/31/05.]                                                                                                      
REPRESENTATIVE  ANDERSON   moved  to  report  CSSB   56(JUD),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying fiscal notes.                                                                                                  
REPRESENTATIVE  COGHILL said  he  still had  questions about  the                                                               
The committee took an at-ease from 1:46 p.m. to 1:49 p.m.                                                                       
1:49:51 PM                                                                                                                    
CHAIR   McGUIRE  noted   that  at   the  bill's   prior  hearing,                                                               
Representative Gara had  made a motion to adopt  Amendment 3 but,                                                               
because of time constraints that day, had withdrawn it.                                                                         
1:50:09 PM                                                                                                                    
REPRESENTATIVE GARA  again made  a motion  to adopt  Amendment 3,                                                               
labeled 24-LS0308\L.1, Luckhaupt, 1/28/05, which read:                                                                          
     Page 4, lines 10 - 17:                                                                                                     
          Delete all material.                                                                                                  
     Renumber the following bill sections accordingly.                                                                          
     Page 24, line 4:                                                                                                           
          Delete "Sections 1, 4, 6, 26, and 29 - 31"                                                                            
          Insert "Sections 1, 4, 6, 25, and 28 - 30"                                                                            
     Page 24, lines 5 - 6:                                                                                                      
         Delete "Sections 2, 3, 5, 7 - 25, and 27 - 28"                                                                         
         Insert "Sections 2, 3, 5, 7- 24, and 26 - 27"                                                                          
     Page 24, line 7:                                                                                                           
          Delete "secs. 8 - 21"                                                                                                 
          Insert "secs. 7 - 20"                                                                                                 
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
1:50:26 PM                                                                                                                    
REPRESENTATIVE GARA stated that a  judge can increases a sentence                                                               
based  on the  "Chaney criteria"  [statutory guidelines  based on                                                             
the  1970 Alaska  Supreme Court  case,  Chaney v.  State].   With                                                             
Amendment  3, Representative  Gara said,  judges are  required to                                                               
explain their  sentencing decisions, and it  gives defendants the                                                               
right to  file an appeal  if they  think their sentences  are too                                                               
long.   He said that  if the legislature  takes out the  right to                                                               
appeal,  "this bill  is going  be here  next year."   He  said he                                                               
thinks it is a constitutional issue.                                                                                            
1:53:57 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  referred to lines  11-13 on page  4 and                                                               
said that it says that a  sentence reviewed by an appellate court                                                               
may not  be reversed as  excessive, adding that he  believes this                                                               
does not  take away the right  to appeal.  It  limits the court's                                                               
discretion  to  render  a   decision,  which  therefore  violates                                                               
Article IV,  Section 2, of  the Alaska State  Constitution, which                                                               
makes  the supreme  court the  highest court  in the  land.   One                                                               
cannot have  the judicial power of  the state in a  court when it                                                               
is denied the right to reverse  a sentence as excessive.  That is                                                               
a limitation on  the judicial power of  the state, Representative                                                               
Gruenberg stated.  He also said  it is contrary to Rule 520(c) of                                                               
the Alaska Rules  of Appellate Procedure, which  gives the courts                                                               
full power  to reverse a decision.   He said, therefore,  that he                                                               
supports amendment 3.                                                                                                           
1:55:47 PM                                                                                                                    
REPRESENTATIVE   COGHILL   said   the   constitution   says   the                                                               
jurisdiction of  the courts should  be prescribed by law,  and he                                                               
thinks, "one of the things that  we've done in the legislature is                                                               
give  sentence prescription,  and  if  you want  to  call that  a                                                               
limitation  on the  court, that  certainly  is; this  is just  an                                                               
extension of that prescription."   He said he thinks the language                                                               
in  the  bill  wouldn't  be  challengeable  constitutionally,  so                                                               
Representative Coghill said he will vote against Amendment 3.                                                                   
CHAIR  McGUIRE announced  that  the  committee's packet  contains                                                               
arguments   for  and   against  Amendment   3,  and   noted  that                                                               
Legislative  Legal  and  Research Services  reported  that  other                                                               
states that have  a similar prohibition against  appeals based on                                                               
excessiveness have  been upheld.   Chair  McGuire said  there are                                                               
good arguments on both sides,  and predicted that the debate will                                                               
continue.   She said  she will oppose  the amendment  because she                                                               
thinks an important prerogative of  the legislature is to be able                                                               
to  set mandatory  minimum  sentences for  certain  crimes.   She                                                               
added that  she would  prefer to have  aggravators in  place, but                                                               
separate trials are costly, and it  is necessary to draw the line                                                               
somewhere.  She  said there are some lawmakers who  would like to                                                               
simply raise  the minimum sentence,  but she said she  feels more                                                               
comfortable with giving  the courts a range.  If  the bill allows                                                               
for  appeals based  on  excessiveness, there  will  be an  appeal                                                               
"every single time."                                                                                                            
2:00:41 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG responded  to Representative  Coghill's                                                               
points  and  said  that  even   if  Representative  Coghill  were                                                               
correct, it would  only apply to the court of  appeals and not to                                                               
the  supreme  court.   Representative  Gruenberg  added  that  he                                                               
looked at the  two states where Chair McGuire said  a similar law                                                               
was upheld, and  he countered that those laws  are very different                                                               
from what Alaska  is doing.  He said that  the Washington statute                                                               
limits the defendant's ability to  file an appeal, and the Kansas                                                               
statute  limits  the court's  jurisdiction  in  the legal  sense.                                                               
That is  "not at all  what this bill  does; this bill  limits the                                                               
court's  power  to  issue  a judgment  of  reversal,  and  that's                                                               
different from a jurisdictional issue," he said.                                                                                
2:02:36 PM                                                                                                                    
REPRESENTATIVE  GARA  said  he  does  not  want  to  argue  about                                                               
constitutionality  because the  committee cannot  determine that,                                                               
and he wants  to point out that he thinks  determining a range is                                                               
acceptable.    Amendment  3  does  not  alter  that;  instead  it                                                               
requires judges to  explain to the public what they  did and why,                                                               
he  said.    Representative  Gara said  he  doesn't  always  have                                                               
complete trust  in judges, and  the whole  point of the  court of                                                               
appeals is  to keep the  law consistent.   Making a  judge defend                                                               
his or her decisions makes the system more credible.                                                                            
2:05:01 PM                                                                                                                    
CHAIR  McGUIRE   said  she  thinks   there  are  two   issues  in                                                               
Representative  Gara's  amendment,  and she  recommends  that  he                                                               
consider bifurcating it  if it fails.  She said  she is much more                                                               
sympathetic to his requirement of findings.                                                                                     
REPRESENTATIVE  ANDERSON recapped  Chair McGuire's  comments, and                                                               
asked Representative Gara to respond.                                                                                           
REPRESENTATIVE GARA said  Amendment 3 leaves the law  the same as                                                               
it is  today, and the people  who have the right  to appeal today                                                               
will have that  right tomorrow.  He said he  agrees that there is                                                               
abuse  of the  appeal process,  but people  with good  appeals as                                                               
well as bad appeals file.   He said that by eliminating the right                                                               
to appeal, both  groups of people will be punished,  and it would                                                               
protect all  judges regardless of  whether they are doing  a good                                                               
job.   "By taking away  the right  to appeal from  everybody, you                                                               
are going to  uphold sentences that shouldn't  have been issued,"                                                               
he said.                                                                                                                        
2:07:50 PM                                                                                                                    
CHAIR  McGUIRE   responded  that  under  the   current  system  a                                                               
defendant  knows that  if sentencing  goes above  the presumptive                                                               
because of  an aggravating  factor, the  likelihood of  appeal is                                                               
less.   The  reason for  pairing  the appeal  exclusion with  the                                                               
range is the  "human tendency to say 'if there's  a range of four                                                               
to seven, and I get anything  more than four, I'm mad about it.'"                                                               
She  remarked   that  all  of  Representative   Gara's  arguments                                                               
standing alone make sense, but it  is the package that causes her                                                               
concern.  She  said that Section 7, puts  "downward pressure," on                                                               
the sentencing,  and she  reiterated her  belief that  anyone who                                                               
gets  more years  than  the  bottom of  the  range  will want  to                                                               
2:09:17 PM                                                                                                                    
REPRESENTATIVE GARA said those were  good points.  However, going                                                               
back to the  premise of the bill, he remarked,  the Department of                                                               
Law (DOL)  said it did not  want to change the  average sentences                                                               
in  the  state,   but  that  it  wanted  to  abide   by  the  new                                                               
constitutional ruling.  Representative  Gara said he believes his                                                               
amendment would do that -  keep Alaska's sentencing guidelines as                                                               
similar to  current guidelines as  allowed.  He opined  that this                                                               
bill changes sentencing  for every crime, and  if the legislature                                                               
wants to do that, it should consider each crime individually.                                                                   
2:10:51 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  spoke   on  incarceration  costs,  and                                                               
suggested that  it would save the  state money when an  appeal is                                                               
won.  He  added that judges make  "occasional mistakes," sentence                                                               
appeals are inexpensive,  and a few successful  appeals can "save                                                               
the state a significant amount of money."                                                                                       
The committee took an at-ease from 2:12 p.m. to 2:14 p.m.                                                                       
[SB 56, as  previously amended, was held over with  the motion to                                                               
adopt Amendment 3 left pending.]                                                                                                
2:14:33 PM                                                                                                                    
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 2:14 p.m.                                                                 

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