01/24/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB78 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 78 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 24, 2005
1:12 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 78
"An Act relating to criminal law and procedure, criminal
sentences, and probation and parole; and providing for an
effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 78
SHORT TITLE: CRIMINAL LAW/PROCEDURE/SENTENCING
SPONSOR(S): REPRESENTATIVE(S) SAMUELS
01/18/05 (H) READ THE FIRST TIME - REFERRALS
01/18/05 (H) JUD, FIN
01/24/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 78, provided
background information regarding the 2004 U.S. Supreme Court
case, Blakely v. Washington.
SARA NIELSEN, Staff
to Representative Ralph Samuels
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 78 on behalf of the sponsor,
Representative Samuels, and discussed the changes incorporated
in the proposed CS, Version G.
TODD SHARP, Lieutenant
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 78, provided
comments regarding Sections 26, 30, and 31, and responded to
questions.
SUSAN PARKES, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 78, provided
comments and responded to questions.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 78, shared the
PDA's concerns, responded to questions, and suggested a change.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:12:19 PM. Representatives
McGuire, Dahlstrom, Gara, Gruenberg, Anderson, and Coghill were
present at the call to order.
HB 78 - CRIMINAL LAW/PROCEDURE/SENTENCING
[Contains reference to changes made in the Senate to the
companion bill to HB 78, SB 56.]
1:12:51 PM
CHAIR McGUIRE announced that the only order of business would be
HOUSE BILL NO. 78, "An Act relating to criminal law and
procedure, criminal sentences, and probation and parole; and
providing for an effective date." [In members' packets was a
proposed committee substitute (CS) for HB 78, Version 24-
LS0391\G, Luckhaupt, 1/21/05.]
1:14:16 PM
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, provided
background information regarding the U.S. Supreme Court case,
Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004). She began
by quoting an excerpt from an article in members' packets by
Benjamin Wittes titled "Suspended Sentencing", which read in
part [original punctuation provided]:
For most of the nation's history sentencing was a
matter for judges alone. Congress set the range of
punishments a crime could carry, and judges decided
how, within that range, to impose those punishments.
The result was huge racial, regional, and other
disparities in sentences for comparable offenses -
disparities that often reflected the oddities of
individual jurists. Congress responded with the
Sentencing Reform Act of 1984, which sought to make
sentencing more predictable. Under the sentencing
guidelines that resulted, judges were compelled to
plug a variety of factors into a complex formula that
would provide a sentencing range. ...
The counterrevolution began in 2000, with a case
called Apprendi v. New Jersey. Apprendi involved a
state hate-crimes law that allowed judges to impose
sentences beyond the usual maximum if racial animus
lay behind the crime. In this case, a man who had
fired a gun into a black family's house was sentenced
to twelve years in prison - two years more than the
maximum for firearm possession. The Court, however,
struck down the sentence, because the defendant's
racial motivation had not been proved to the jury;
rather, it had been found by a judge. "Other than the
fact of a prior conviction," the Court held, "any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must by submitted to a
jury, and proved beyond a reasonable doubt."
The theory behind Apprendi seems both simple and
attractive: a fact that pushes a sentence above the
statutory maximum for the offense is really an element
of a more serious crime, and every element of a crime
has traditionally had to be proved to a jury. But
judges have always considered facts in sentencing that
were not proved to the jury. So Apprendi forced the
question of which sentencing factors must count as
elements and which judges could still consider on
their own. In Blakely the Court answered that
question: anything that increases a sentence beyond
the "standard range" set by law is by definition an
element, so a judge may not consider it in sentencing
unless it has been proved to the jury.
1:17:34 PM
MS. TONDINI explained that in Blakely, the petitioner, after
kidnapping his estranged wife [and son], was charged with
[kidnapping in the first degree], but reached a plea agreement
reducing the charge to kidnapping in the second degree involving
domestic violence and use of a firearm. Mr. Blakely entered a
guilty plea, admitting the elements of kidnapping in the second
degree and the domestic violence and firearm allegations, and
the case proceeded to sentencing. In Washington, the crime of
kidnapping in the second degree is a class B felony, which has a
maximum sentence of 10 years. Other provisions of Washington
state law, however, further limit the range of sentences that a
judge may impose; for example, Washington's "Sentence Reform"
Act specifies that for the crime of kidnapping in the second
degree involving the use of a firearm, the standard sentence
range is 45-53 months, but the judge is allowed to impose a
sentence above the standard range if he/she finds substantial
and compelling reasons justifying an exceptional sentence.
Furthermore, the Act lists aggravating factors that justify such
a departure, though that list is intended to be illustrative
rather than exhaustive, and the justification must include
factors other than those used in computing the standard
sentencing range.
MS. TONDINI said that in Blakely, pursuant to the plea
agreement, the state recommended a sentence within a standard
range of 49-53 months. However, after hearing the wife's
description of the kidnapping, the judge rejected the state's
recommendation and imposed an exceptional sentence of 90 months
- 37 months beyond the standard maximum - and justified it on
the grounds that the petitioner acted with deliberate cruelty, a
statutorily enumerated ground for departure in domestic violence
cases. The petitioner appealed, arguing that the sentencing
procedure deprived him of his federal constitutional right to
have a jury determine, beyond a reasonable doubt, all facts
legally essential to his sentence. Washington's State Court of
Appeals "affirmed" and the Washington Supreme Court denied
discretionary view, and so the U.S. Supreme Court granted
certiorari.
MS. TONDINI relayed that the U.S. Supreme Court considered what
she termed the Sixth Amendment implications of the case, looking
at whether the judge's consideration of the facts showing that
the petitioner acted with deliberative cruelty for the purpose
of justifying a longer sentence was a violation of the
petitioner's Sixth Amendment right to a trial by jury. The U.S.
Supreme Court, in applying Apprendi, held that there was a
violation because the facts supporting the exceptional sentence
were neither admitted by the petitioner nor found by a jury; in
other words, other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proven beyond
a reasonable doubt, with the relevant statutory maximum for
Apprendi purposes being the maximum that a judge may impose
based solely on the facts reflected in the jury verdict or
admitted by the defendant.
MS. TONDINI noted that the U.S. Supreme Court also said that the
Blakely case is not about the constitutionality of determinate
sentencing, but rather about how such can be implemented in a
way that respects the Sixth Amendment. She explained that
Alaska's current felony sentencing statutes use the phrase,
"presumptive term" to establish a specific, fixed term of
imprisonment that in essence acts as both the minimum and
maximum sentence that can be imposed unless the court finds
specific statutory mitigating or aggravating factors; thus,
current law attempts to specify one presumptively "right"
sentence for all felony crimes within each class of offense. In
conclusion, she noted that the Blakely case was very
controversial - engendering a 5:4 split with some of the
dissenting opinions exceeding the majority opinion in length -
and has left state courts in a quandary with regard to how to
proceed with sentencing.
1:25:35 PM
SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska
State Legislature, sponsor, relayed on behalf of Representative
Samuels that HB 78 amends Alaska's current presumptive
sentencing scheme from a set term to a range of terms in order
to comply with Blakely; allows a probation officer to impose
additional terms of release or supervision without further court
proceeding; allows for an additional aggravator when a defendant
has five or more class A misdemeanor convictions; limits the
ability of judges to order what are called periodic sentences,
in which the offender periodically leaves prison and then
returns; stipulates the authority of police officers to detain
or arrest probationers and parolees for certain types of
violations of conditions imposed by the courts or the State
Board of Parole.
MS. NIELSEN relayed that the sponsor feels that the changes
proposed by HB 78 will improve sentencing by giving judges more
discretion, will simplify sentencing, will remove confusion
engendered by the Blakely decision, will allow the Department of
Corrections (DOC) the ability to better manage its prison
population by limiting the abuse of periodic sentencing, will
improve public safety by clarifying that police officers have
the authority to arrest violators of parole or probation, and
will improve supervision of offenders by clarifying that
probation officers have the authority to impose additional
terms. Referring to Version G, the proposed CS in members'
packets, she indicated that it mirrors changes made in the
Senate to the Senate version of the bill.
MS. NIELSEN highlighted four changes encompassed in Version G.
Page 2, lines 6-7, now says in part, "and the defendant receives
a composite sentence of not more than 2 years"; this change
attempts to address the concern that those who've been sentenced
for two years or less would still be allowed to have periodic
sentencing on the basis of financial hardships. Page 3, line
14, now says, "lower than", rather than "within"; this change
fixes a drafting error. Page 4, line 6, now contains the words,
"orally and"; this change attempts to ensure that the defendant
understands that additional conditions of probation are being
imposed. The final change, to page 24, line 10, provides for an
immediate effective date.
1:30:01 PM
TODD SHARP, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), provided comments regarding
Sections 26 and 30-31, which pertain to detaining and arresting
parolees and probationers. He relayed that contrary to what
many believe, police officers do not now have the ability to
immediately arrest parolees and probationers whom they witness
violating the terms of parole/probation, or immediately revoke
parole/probation privileges. Changes proposed by the bill would
authorize such. He went on to detail the 2004 Alaska Court of
Appeals case, Reichel v. State - which pertained to a person who
was detained and later arrested after having been seen in a bar
by a police officer who knew the person was violating his
conditions of parole by being in a bar - and indicated that this
case illustrates why police, when witnessing a person violating
the conditions of his/her parole/probation, need to be able to
take action without going through extra procedures.
REPRESENTATIVE GRUENBERG asked whether the term, "police
officer" is defined.
LIEUTENANT SHARP said he believes it is, and noted that the bill
also uses the phrase, "a police officer certified by the Alaska
Police Standards Council", and thus he believes that all types
of law enforcement officers would be covered under the bill.
1:37:39 PM
SUSAN PARKES, Deputy Attorney General, Criminal Division, Office
of the Attorney General, Department of Law (DOL), noted that [HB
78] represents a critical issue for the Department of Law and
has been in the making since the Blakely decision came out.
Since that time, Alaska's felony sentencing law has been in
chaos, she remarked, adding that there have been conflicting
rulings from superior court judges across the state, that there
have been multiple appeals, and that defendants and victims are
not experiencing certainty or finality with regard to sentences.
She characterized HB 78 as well thought out and as offering a
balanced approach to Blakely that will bring Alaska's current
sentencing structure into compliance with that decision. Noting
that under Blakely, once a presumptive sentence is set,
aggravating factors must go before a jury, she opined that
maintaining non-disparity with regard to sentencing is a good
thing and that the bill accomplishes that while giving some
discretion to judges.
REPRESENTATIVE GARA asked for clarification with regard to when
a longer sentence may be imposed in cases where aggravators are
present.
MS. PARKES offered her understanding that the defendant's
expectations play a role in when a longer sentence can be
imposed without further review by a jury. She elaborated:
Once the legislature sets sentences that [give] a
defendant an expectation that this sentence is the
sentence he or she will get absent additional factual
findings, then you run into a "Blakely" problem. ...
In Washington, ... there was a range that this
defendant had an expectation [of, that] this was the
maximum sentence that he could get, based on the plea
he entered. And if [there are] facts that allow you
to go beyond that expected range - or set sentence, in
our case - then it has to be a jury finding. If the
expectation of the defendant is, it's wide open
sentencing - zero to twenty [years], the judge can
give you anything - then that's the expectation and
you don't have a Blakely problem.
MS. PARKES, in response to a further question, said that HB 78
proposes to give judges a range of sentences much like other
states have, adding her belief that when setting any sentence,
judges should look for guidance in Title 12, which lays out what
she called the "Chaney criteria" - statutory guidelines based on
the 1970 Alaska Supreme Court case, Chaney v. State. For
example, currently for misdemeanors there are no presumptive
sentences, nor are there presumptive sentences for the crime of
murder in the first degree. Instead, judges are supposed to
look at the declaration of purpose - found in AS 12.55.005 -
regarding a particular sentence, and then set a sentence within
the range available that meets the purpose. To illustrate, she
paraphrased AS 12.55.005(1)-(7):
(1) the seriousness of the defendant's present
offense in relation to other offenses;
(2) the prior criminal history of the defendant
and the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent
further harm to the public;
(4) the circumstances of the offense and the
extent to which the offense harmed the victim or
endangered the public safety or order;
(5) the effect of the sentence to be imposed in
deterring the defendant or other members of society
from future criminal conduct;
(6) the effect of the sentence to be imposed as a
community condemnation of the criminal act and as a
reaffirmation of societal norms; and
(7) the restoration of the victim and the
community.
MS. PARKES remarked that under HB 78, rather than having to make
factual findings regarding aggravators and mitigators, judges
are given a range and can then look to the aforementioned
guidelines when deciding an appropriate sentence.
1:46:48 PM
REPRESENTATIVE GRUENBERG, referring to Section 26, on page 19 of
Version G, asked why can't police, under current law, arrest a
person for violating his/her conditions of parole/probation.
Referring to paragraph (6) of Section 26 - which says, "other
conduct that creates an imminent public danger or threatens
serious harm to persons or property" - he asked whether there's
a reason "for going beyond conduct that would necessarily create
a public danger."
MS. PARKES, regarding the first question, surmised that it
probably wasn't a public policy decision to preclude police from
making arrests pertaining to parole/probation violations;
rather, the authority to make such arrests just wasn't
specifically set out in statute; Version G specifically sets out
that authority. Currently, she relayed, an officer can make an
arrest after obtaining permission/authority from a person's
parole/probation officer, and offered her belief that in the
Reichel case, the problem was that the officer detained the
defendant just for being in the bar, without there being any
evidence that such behavior in and of itself created an imminent
public danger. The goal of HB 78 regarding this issue is to
allow initial contact if there is a reasonable suspicion of a
violation; then, if there is probable cause to believe that
there has been a violation of an item listed in Section 26, the
officer can arrest the person.
MS. PARKES, in response to questions, relayed that "police
officer" is defined in Title 18; that this definition includes
airport police and state and municipal police; and that Village
Public Safety Officers (VPSOs) have already been given similar
authority through other statutory language.
REPRESENTATIVE ANDERSON noted that last year, legislation of his
proposed adding another definition of "peace officers" to
statute.
CHAIR McGUIRE mentioned that the committee could narrow the
definition in the bill if necessary.
REPRESENTATIVE GARA surmised that the main goal of HB 78 is to
change Alaska's current statutory sentencing scheme, which has
been declared unconstitutional under Blakely, so that Alaska can
have essentially the same sentences it has now.
MS. PARKES concurred with that summation.
REPRESENTATIVE GARA shared his fear that the changes proposed
via HB 78 will increase basic sentences beyond what they are
now.
MS. PARKES mentioned that the Senate Judiciary Standing
Committee shared that concern and so drafted a letter of intent
stating that such was not the legislature's goal, and suggested
that the House Judiciary Standing Committee may want to draft a
similar letter of intent. She said that under Blakely, the
balance of power is being changed; judges used to have a lot of
power and this bill seeks to give some of that power back to
judges by providing ranges of sentences. Under the current
scheme - which has been found to be unconstitutional - judges
not only made the findings of fact themselves about aggravators,
they made them only by clear and convincing evidence, and then
they decided whether it justified increasing a sentence or not.
Under Blakely, juries will have to make the finding and must do
so beyond a reasonable doubt, though just because an aggravator
or mitigator is found by the jury, a judge is not required to
increase or decrease a sentence. She relayed her expectation
that there will be fewer aggravators proposed because a range of
appropriate sentences will be available.
1:57:49 PM
REPRESENTATIVE GARA suggested that another way to comply with
Blakely would be to keep the current sentencing scheme and just
go to a jury and let them decide issues of aggravators and
mitigators whenever there is a desire to decrease or increase
the sentence. He noted that Kansas has such a system.
MS. PARKES clarified that although Kansas does have such a
system, it also has a system of presumptive ranges. She relayed
that at the Vera Institute of Justice conference she attended,
there was a presentation by a representative from Kansas who
said that 100 out of 105 prosecutors in Kansas are not using
aggravators anyway.
REPRESENTATIVE GARA suggested instead, then, that perhaps the
discretion regarding mitigators and aggravators should be given
to judges but then also require them to issue a finding
justifying increases or decreases in the presumptive sentence.
He proffered that such a system will provide accountability and
transparency and prevent disparity in sentencing.
MS. PARKES asked that if such a system were put in place, that
only an oral finding be required so as not to place a burden on
judges. Turning to Section 7 of bill, she said that it deals
with appellate rights and says that if a judge imposes a
sentence within a range established by the legislature, it can't
be reversed on the grounds of being excessive.
2:03:49 PM
REPRESENTATIVE GRUENBERG said he is concerned that Section 7
violates the separation of powers doctrine.
MS. PARKES said she does not share that concern, and relayed
that the DOL researched that issue because of concerns raised in
the Senate Judiciary Standing Committee. Although judges impose
sentences, it is the legislature that has the authority to set
sentences for crimes; she noted that the Alaska Supreme Court,
in Bear v. State, held that even it didn't have the authority to
review sentences on the grounds of excessiveness unless the
punishment would qualify as cruel and unusual. As a result of
that ruling, the legislature gave the Alaska Supreme Court the
authority to review cases, and created the Alaska Court of
Appeals and gave it the statutory authority to review sentences.
The legislature also passed a statute limiting felony sentencing
appeals to only those involving felony sentences of two years or
more; that statute was challenged and upheld - the legislature
can determine appropriate sentences and can limit what sentences
can be appealed.
REPRESENTATIVE GRUENBERG asked why, from a policy standpoint,
the legislature would want to limit the appellate court's
discretion to determine whether a sentence is excessive. Are
judges abusing that discretion now?
MS. PARKES surmised that the change proposing such a limit was
included because of a concern that there might be a lot of
frivolous appeals after the creation of presumptive ranges. So
the question was one of, should the courts deal with all those
potential appeals just because the legislature decided to
establish ranges of sentences for particular crimes? It's a
policy call; the legislature has the authority to say what it
considers to be a frivolous appeal.
2:10:20 PM
REPRESENTATIVE GARA referred to a proposed amendment, labeled
24-LS0391\A.1, Luckhaupt, 1/24/05, which read:
Page 4, line 14:
Delete "within an"
Insert "the minimum in the"
Page 4, line 17, following "AS 12.55.127.":
Insert "If the court imposes a sentence above the
minimum sentence in the applicable presumptive range,
the court shall make findings that justify the
decision under AS 12.55.005."
REPRESENTATIVE GARA - after relaying his understanding of
current law and that the factors listed in AS 12.55.005 have
always been appealable - said he would like to see the state get
the benefit of being able to impose a longer sentence without
having to go through an extra jury trial, but such sentences
should be appealable. He asked what would be the objection to
letting judges, if such a system were in place, review longer
sentences on appeal.
MS. PARKES clarified that the bill doesn't say a person can't
appeal a longer sentence; it just says that if the sentence is
within the range established by the legislature, it cannot be
reversed on the grounds that it's excessive. She acknowledged,
however, that altering that provision in the future may be
necessary if it doesn't prove satisfactory. She offered her
belief that establishing sentencing ranges isn't for the benefit
of prosecutors; rather, it's for the benefit of the public and
is intended to bring back balance to the criminal justice system
without imposing a burden on that system.
CHAIR McGUIRE remarked that if imposing a longer sentence
requires a finding, it could engender questions regarding the
appropriateness of the finding as well as possible litigation.
She noted that at the bill's next hearing, the committee can
decide the issue of whether to adopt a CS and focus on any
proposed amendments, and mentioned a preference for written
amendments.
MS. PARKES, referring to Section 21, which starts on page 17 of
Version G, noted that it does not require aggravators to go to
the grand jury, though it does require the state to give notice
10 days prior to trial or at another time set by the court if
new information comes forth. Section 21 sets out both which
aggravating factors don't have to go before a jury and what the
timelines for giving notice are.
2:18:28 PM
REPRESENTATIVE GRUENBERG asked Ms. Parkes to research whether
Section 21 proposes a change to court procedure and would
thereby require a two-thirds vote and notice in the title. He
suggested that researching this issue as soon as possible could
prevent running afoul of the aforementioned requirements later.
MS. PARKES referred to Section 19, which starts on page 15 of
Version G, and relayed that currently, Alaska's presumptive
sentences are based on prior felony convictions, and so there
isn't an aggravator for someone with a lengthy misdemeanor
criminal history. Section 21 allows an aggravator to be found
if a person has five or more class A misdemeanor convictions.
Another change that the bill proposes pertains to limiting the
kinds of sentences and circumstances that are eligible for
periodic sentencing; she suggested that the DOC could better
address this proposed change. Mentioning general condition of
probation no. 12 from the Huskey v. State case, and referring to
Section 6, page 4, she explained that it merely codifies current
practice with regard to judges giving probation officers the
authority, during the course of probation, to give special
instructions or rules to probationers as new circumstances
arise. She mentioned that Lieutenant Sharp has already
addressed the proposed change giving police officers the
authority to detain probationers and parolees based on a
reasonable suspicion of probation/parole violation.
REPRESENTATIVE GRUENBERG asked whether any other sections of the
bill are in response to particular cases.
MS. PARKES mentioned that the Huskey case, an "MOJ" (Memorandum
Opinion and Judgment) from the Alaska Court of Appeals, prompted
Section 6.
2:23:55 PM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), thanked the
DOL for keeping the PDA abreast of DOL efforts after the Blakely
decision. She commented that although the director of the PDA
also participated in the aforementioned Vera Institute of
Justice conference in Denver, none of the PDA's suggestions with
regard to the bill were incorporated into it.
MS. WILSON acknowledged that Ms. Tondini had gone over the
history of the Apprendi and Blakely cases. She offered her
belief that Blakely clarified that a maximum sentence should be
based upon what the jury found or what a defendant admitted in
his/her plea. She declared, "This is about honoring our Sixth
Amendment right to a [jury] trial; ... the jury should be ...
making those types of [findings]." She quoted from U.S. Supreme
Court Justice Anthony Scalia's written opinion in the Blakely
decision:
The Framers would not have thought it too much to
demand that, before depriving a man of three more
years of his liberty, the State should suffer the
modest inconvenience of submitting its accusation to
"the unanimous suffrage of twelve of his equals and
neighbors" rather than a lone employee of the State.
MS. WILSON clarified that the man who had been sentenced to an
additional three years was Mr. Blakely, and that the lone
employee of the State in this case was the judge. She
reiterated that the case was about respecting the right to a
jury. She stated that, a 2005 U.S. Supreme Court case, [United
States v. Booker], made it clear that the Blakely decision
applied to federal sentencing guidelines. In the defense that
came from Blakely, U.S. Supreme Court Justice Sandra O'Conner
specifically mentioned Alaska's presumptive sentencing scheme
and nine other states that became vulnerable after the Blakely
decision. She remarked that dissenting members of the court
were concerned that this decision would create chaos, cost more
money, and cause inefficiencies. She then quoted U.S. Supreme
Court Justice John Paul Stevens comments in Booker [original
punctuation provided]:
We recognize, as we did in Jones, Apprendi, and
Blakely, that in some cases jury factfinding may impair
the most expedient and efficient sentencing of
defendants. But the interest in fairness and
reliability protected by the right to a jury trial-a
common-law right that defendants enjoyed for centuries
and that is now enshrined in the Sixth Amendment-has
always outweighed the interest in concluding trials
swiftly.
MS. WILSON again reiterated that Blakely is about honoring and
respecting the Sixth Amendment right to have a jury decide the
facts which could potentially expose one to a higher sentence.
MS. WILSON turned the committee's attention to Alaska's
sentencing history. Prior to 1978, there was indeterminate
sentencing in Alaska, resulting in disparity. In 1978 the state
instituted a presumptive sentencing scheme to eliminate unjust
disparity and make sentences reasonably uniform. She said that
in 1997, the Alaska Supreme Court Advisory Committee on Fairness
and Access recommended that the state assess the relationship
between defendants' ethnicities and their treatment in the
criminal justice system to determine if there is uniformity,
proportionality, certainty, and fairness in the sentences for
all defendants. The Alaska Judicial Council (AJC) examined
felony cases from 1999 and produced a report which came out last
year; the AJC found no systemic ethnic discrimination in the
imposition of sentencing and not a lot of disparity in
presumptive sentencing that would be associated with ethnicity,
gender, type of attorney, and location. She concluded that [the
state] was doing a good job of providing uniformity in
presumptive sentencing.
MS. WILSON, referring to handouts in members' packets, pointed
out that presumptive sentencing in Alaska has a certain degree
of uniformity because the sentence is a specific number: four,
five, eight years, et cetera. Therefore there is no opportunity
for disparity for the 55 percent of defendants that face
presumptive sentencing. Of the sentences that the AJC studied,
there were some that were aggravated; this bill addresses those
types of cases. The Blakely decision requires that a jury
decide the aggravating fact that takes [the sentence] above the
presumptive sentence.
MS. WILSON remarked that the state's proposal is "one solution
to Blakely", and that another possible solution would be to
return to indeterminate sentencing, though such would have its
own problems. She mentioned a third possible solution: leave
the presumptive sentencing the way it is, but provide for a jury
trial for aggravators that require a factual finding not based
on a prior conviction. She stated that there's disinclination
towards this option because of the cost and lack of flexibility.
She noted that flexibility gives the judge more discretion,
adding: "and that's the worrisome part of this proposed bill -
... it's too broad - ... because now, what was a presumptive
five, now is between five and eight, [and] what was a
presumptive four is now a range of four to seven."
MS. WILSON commented that these ranges could be made narrower to
allow for disparity. She said that Alaska is already "a state
that overincarcerates in comparison to other states." She
predicted that sentences will increase if the range is left
broad, even with intent language that states that sentences
should not increase. She voiced concern that Section 7 of the
bill takes away the right to appeal, since, if the court can't
reverse the sentence on the grounds that it was excessive, then
there is no reason to appeal; it virtually takes away one's
right to appeal because there's no remedy available and thus
makes the appeal fairly meaningless.
MS. WILSON posited that HB 78 is too broad, and if the bill's
goal is to keep the uniform sentencing scheme intact and to
eliminate unjust disparity, "it does too much because there's
now an opportunity to have greater disparity within that range."
She opined that the bill tends to circumvent Blakely and works
around honoring the Sixth Amendment right, and expressed concern
that sentences in general will tend to go up because the judge
would have a range of sentences to choose from.
MS. WILSON referred to Representative Gara's [proposed
amendment], which would allow the defendant to appeal a sentence
beyond the low end of the range as excessive so that the
sentences don't increase overall. She voiced concern that
Section 7 allows for no review of sentences; two people could
receive different sentences for similar crimes but there would
be no review and no accountability. She said that it's good for
judges to be able to compare sentences. She also mentioned the
importance of using the Chaney criteria as codified in AS
12.55.005.
2:37:02 PM
MS. WILSON called the committee's attention to a part of the
bill that she found problematic. She referred to page 4 of
Version G, lines 4-10, which read:
(7) if ordered by the court, to abide by additional
conditions of probation imposed by the defendant's
probation officer; an additional condition imposed by
the probation officer must be provided in writing to
the defendant; the additional condition is binding
upon delivery until modified by the court; this
paragraph does not require written notice of
conditions relating to the day-to-day management of
probationers, in which probation officers direct the
activities of probationers to implement existing
court-imposed conditions.
MS. WILSON focused on the language that would allow a probation
officer to add additional conditions without having to go back
to court. She relayed that Lee Jones, an attorney in the
Anchorage PDA office and a former probation officer, told her
that when a probation officer changes or adds a condition to the
terms of probation, many times the defendant doesn't know that
he/she has the ability to challenge that additional condition.
Ms. Wilson noted that the Senate Judiciary Standing Committee
has amended the Senate's version of the bill to say that the
defendant must be notified orally as well as in writing, adding
that she prefers that both methods be used. She recommended
that a similar provision be added to HB 78 so that a probation
officer is required to inform the defendant orally and in
writing of an additional condition and to advise the defendant
that he/she can request judicial review. She noted that this
would give the defendant the opportunity to bring the issue back
into court and let it decide if the additional condition is
reasonable, though in the meantime that additional condition
would be binding.
MS. WILSON returned attention to Section 7, the provision
limiting the right to appeal a sentence as excessive. She
suggested that if the committee chose not to [adopt]
Representative Gara's proposed amendment [text provided
previously], then perhaps the committee would consider making
the ranges smaller to lessen disparity. She reiterated her
preference for Representative Gara's suggestion to allow a
review by a court of appeals, because under the current bill
judges could impose sentences at the high end of the range
without any review. She voiced her concern that people of color
would receive sentences at the high end of the range while
wealthy people who have private council would receive sentences
at the low end of the range.
MS. WILSON referred back to the Huskey case, in which, she
opined, the state conceded that it needed to get rid of what was
being called in that case general condition of probation no. 12.
She commented that it was interesting that in Huskey, the state
conceded that it was perhaps an unfair delegation of authority,
but yet now [the state] wants similar language to be included
[in statute].
2:42:23 PM
REPRESENTATIVE GARA asked for clarification regarding [Section
6]: "Are we letting probation officers impose new conditions
until a court says that wasn't proper, or are we waiting for
there to be some court order justifying the new probation
condition before it gets imposed?"
MS. WILSON surmised that it's a little bit of both. She
explained that the aforementioned general condition of probation
no. 12 was a probationary order in which the judge delegated
authority to the probation officer. She indicated that that
particular general condition of probation no. 12 read, "Abide by
any special instructions given by the court or any of the duly
authorized officers, including probation officers of the
Department of Corrections", and suggested that the term "special
instructions" had been interpreted to mean "additional
conditions." She pointed out that currently, the defendant can
always go back to the judge and try to modify or change the
conditions of probation and its term length, and reemphasized
the importance of notifying the defendant of any new conditions
and of his/her right to request review of the conditions.
REPRESENTATIVE GARA asked Ms. Wilson if she wants the bill to
say that if [additional conditions are added], the defendant
should be told that he/she has a right to seek council and
review.
MS. WILSON replied affirmatively.
REPRESENTATIVE GARA pointed out that at sentencing, the
defendant is told that the probation officer might add new
conditions. He asked whether the attorney also tells the
defendant at the time of sentencing that he/she has the right to
appeal any new conditions, and whether there is a need to tell
the defendant that again.
MS. WILSON replied that if conditions are added a while after
sentencing, the defendant often no longer realizes that he/she
has the ability to go back into court and have it review the
additional conditions. She remarked that [an amendment to the
bill such as she suggested earlier] would allow the defendant to
be informed [that] the probation officer is able to implement
some special instruction that must be followed until such time
as the defendant can get the court to review that instruction.
2:47:25 PM
REPRESENTATIVE GRUENBERG, referring to page [2] of the handout
pertaining to the Huskey decision, he pointed out that its
general condition of probation no. 12 is set out in footnote 6
(FN 6), and that its special condition of probation no. 7 is set
out in FN 4. He then turned to page [3] of that document, and
pointed out that the text accompanying FN 15 states:
Our supreme court has recognized that probation
officers have common law authority, and decisions from
other jurisdictions recognize that a probation officer
has inherent discretion as long as the exercise of
that discretion does not impinge on a judicial
responsibility--that is, as long as the court has not
improperly delegated its authority to the probation
officer.
REPRESENTATIVE GRUENBERG said he interpreted this text to have
constitutional underpinnings: If a judge imposes a sentence,
only that judge can exercise his/her authority and cannot
delegate it entirely away. He voiced concern that the language
on page 4, lines 3-5 - which read in part, "if ordered by the
court to abide by additional conditions of probation imposed by
the defendant's probation officer" - does not in and of itself
"contain any such limitation." He asked Ms. Wilson if she was
concerned that that [language] could be unconstitutionally
broad.
MS. WILSON replied that this does give [her] concern. She said
that a probation officer cannot set restitution, which is an
example of a responsibility that the court would not be able to
delegate to the officer. The probation officer would be
impinging on the judge's responsibility in the case if the
officer were allowed to decide the amount of a fine or type of
restitution. She acknowledged that there are risks [with
adopting the aforementioned language], and asserted the
importance of giving the defendant notice that he/she can go
back to court [for review] of the conditions.
2:50:47 PM
MS. WILSON, referring to Section 21, specifically the language
on page 17, lines 12-13, pointed out that that language lists
the eight aggravators that the state would not require be proven
by a jury beyond a reasonable doubt; rather, those aggravators
would only need to be proven by clear and convincing evidence.
She predicted that there would be a lot of dispute about whether
all of these particular aggravating factors are really based on
a prior conviction, as required by Apprendi. Referring to
[Section 18], she noted that subsection (c)(7), located on page
12, read, "(7) a prior felony conviction considered for the
purpose of invoking a presumptive range under this chapter was
of a more serious class of offense than the present offense".
She offered her belief that this requires an extra finding that
the prior offense was more serious than the present offense, and
suggested that that factual finding may come under the Blakely
purview and thus would need to be found by a jury beyond a
reasonable doubt.
MS. WILSON, referring to page 12, then read [paragraph] (8),
which is part of current statute and states: "(8) the
defendant's prior criminal history includes conduct involving
aggravated or repeated instances of assaultive behavior". She
offered her belief that this is not an aggravator solely based
on a prior conviction; it requires extra factual findings that
there was aggravated conduct, repeat conduct.
MS. WILSON, still referring to page 12, then read [paragraph]
(12), which is also part of current statute and states: "(12)
the defendant was on release under AS 12.30.020 or 12.30.040 for
another felony charge or conviction or for a misdemeanor charge
or conviction having assault as a necessary element". She
offered her belief that under this provision, there would need
to be extra factual findings that the defendant was on release
from a prior conviction. She summarized that although several
of the aggravating factors probably are based just on prior
convictions, several of them require the finding of additional
facts, including those described in paragraphs (20) and (21).
She said that she does not think that this [provision] will
comply with Blakely.
REPRESENTATIVE GRUENBERG noted that under [proposed subsection]
(c)(7), located in Section 18, the determination of whether the
past conviction was of a more serious class of offense than the
present offense seems to be a question of law rather than a
question of fact.
MS. WILSON responded that that summation is debatable, but
agreed that it could also be a question of fact; for example, if
the prior conviction was in a different state there would need
to be a determination as to how that conviction would compare to
Alaska's law.
2:54:57 PM
MS. WILSON, referring to Section 1, predicted that there will be
challenges to this bill pertaining to the loss of the right to a
grand jury regarding the aggravators. She also voiced concern
about the disparity in the [sentencing] ranges; such could
possibly result in higher sentences, in more people being on
probation, and in more violations of probation. She predicted
that with this proposed range, it would be very unlikely that a
jury would decide an aggravating factor. She suggested that the
bill does not follow the true intent of Blakely; rather, it does
more than it needs to and circumvents the right to a jury trial.
However, she remarked, she does think it's good that the
legislature sets a "fixative" and makes it effective
immediately.
CHAIR McGUIRE stated that the committee has a copy of the
amendments that the OPA has offered, and will hear from the OPA
at the bill's next hearing.
[HB 78 was held over.]
ADJOURNMENT
2:58:02 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:58 p.m.
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