01/31/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 56 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 31, 2005
1:11 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
COMMITTEE CALENDAR
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
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
WITNESS REGISTER
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 56, relayed the
PDA's concerns with Sections 1, 7, 11, 26, and 30-31, and spoke
in support of proposed changes.
TODD SHARP, Lieutenant
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 56, testified in
support of the bill, provided comments regarding Sections 26 and
30-31, and responded to questions.
JOSHUA FINK, Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 56, relayed the
OPA's concerns with Sections 1, 6-7, and 11, and suggested
changes.
SIDNEY K. BILLINGSLEA, Attorney
Alaska Academy of Trial Lawyers (AATL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 56, relayed her
concerns with the bill, and suggested eliminating Section 2.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of SB
56.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 56 and in the
removal of Section 6, and responded to questions.
SUSAN PARKES, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 56.
REPRESENTATIVE RALPH SAMUELS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 56, spoke as the
sponsor of HB 78, companion bill to SB 56.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:11:05 PM. Representatives
Dahlstrom, Gara, [Gruenberg], Anderson, Coghill, Kott, and
McGuire were present at the call to order.
SB 56 - CRIMINAL LAW/PROCEDURE/SENTENCING
[Contains reference to HB 78, companion bill to SB 56.]
1:12:00 PM
CHAIR McGUIRE announced that the only 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."
CHAIR McGUIRE noted that SB 56 would become the vehicle in lieu
of the companion bill, HB 78, which had been heard at a prior
House Judiciary Standing Committee meeting.
1:13:15 PM
REPRESENTATIVE ANDERSON moved to adopt CSSB 56(JUD) as the
working document. There being no objection, CSSB 56(JUD) was
before the committee.
1:13:56 PM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), after noting
that she'd previously provided comments on HB 78, relayed that
with regard to SB 56, she wanted to talk about a problem with
Section 11 that was overlooked as the bill moved through the
Senate and about a proposed amendment that should fix it. As
written currently, Section [11] would eliminate the opportunity
to get a Suspended Imposition of Sentence (SIS), a tool commonly
used for first time class B and C felony offenders. She
remarked that the good thing about an SIS is that if a person
convicted of that type of felony succeeds in meeting all the
conditions set forth in his/her sentencing, the felony will be
taken of his/her record. Referring to the aforementioned
proposed amendment, she offered her belief that adoption of it
will allow an SIS to be granted to those convicted for the first
time of a class C felony or some class B felonies. She relayed
that the PDA is in support of that proposed change, but
cautioned that if the legislature moves too quickly on complex
legislation, it won't get the attention it deserves.
MS. WILSON mentioned that she'd submitted a memorandum to the
committee regarding the PDA's constitutional concerns regarding
Sections 1, 7, 26, and 30-31. Offering her understanding that
the representative from the Office of Public Advocacy (OPA)
would be addressing Sections 1 and 7, she pointed out that
Sections 26 and 30-31 would authorize a police officer to detain
a parolee/probationer on suspicion of recent violations of
parole/probation without getting any directions to do so from
the individual's parole/probation officer. She opined that
these sections will engender constitutional problems because,
even though exceptions to the constitutional protection against
unreasonable searches and seizures have been carved out for
parole/probation officers, these exceptions have not been
extended to police officers.
MS. WILSON, in conclusion, made reference to the 1977 Alaska
Supreme Court case, Roman v. State - cited in her memorandum -
as illustrative of the potential constitutional problems with
Sections 26 and 30-31, specifically that it would be
unconstitutional to allow a police officer to detain or arrest a
parolee/probationer for a believed violation if that violation
did not constitute an independent crime or if the officer was
not acting at the direction of the person's parole/probation
officer. She then relayed that she was available to answer
questions.
REPRESENTATIVE ANDERSON, surmising that the PDA would prefer
that those sections of the bill be removed, asked whether the
Division of Alaska State Troopers would prefer that they remain
in the bill.
TODD SHARP, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), said yes.
REPRESENTATIVE GARA noted that in Alaska, an SIS requires that a
person admit to the conviction but can relay that it has been
suspended. In other states, however, a person can claim to
never have been convicted as long as he/she meets certain
criteria. He suggested that if the legislature would like to
change Alaska's current SIS statute to be more like that of
other states in that regard, then such might be done via a
change to SB 56.
1:22:47 PM
JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), opined that
overall, SB 56 greatly ratchets up sentences and increases
disparity among them, and that the (indisc. - problems with
teleconference sound) sentencing structure was set up to avoid
the latter. He suggested that the legislature should consider
establishing a sentencing commission to look at how Alaska
sentences its defendants compared to other states. Nonetheless,
he remarked, he does support a presumptive-range approach, but
thinks the current presumptive terms should have been used as
the midpoint of the proposed ranges, not as the low end. As
currently written, SB 56 gives judges the discretion to increase
sentences upward from the current presumptive sentence without
finding any aggravators, but must find mitigators in order to
decrease sentences. Such will result in longer sentences across
the board, and violates the spirit of Blakely v. Washington, 124
S. Ct. 2531 (U.S., 2004), he opined.
MR. FINK offered his belief that in Blakely, U.S. Supreme Court
Justice Anthony Scalia has said that the jury should find the
facts that increase one's sentence, because that is the people's
check on the judiciary. By only allowing judges to increase
sentences over the current presumptive terms without any
aggravating factors but not allowing them to decrease them, SB
56 does an end run around Blakely and usurps the function of the
jury as envisioned and announced by the U.S. Supreme Court under
Justice Scalia's opinion, he remarked. Moreover, he predicted,
giving what he characterized as a wide range of sentences will
result in greater disparity in sentencing.
MR. FINK suggested that the solution would be to create much
narrower ranges of sentences using the current presumptive terms
as the midpoint. Such will result in a much fairer approach,
and will decrease disparity in sentencing and grant judges the
discretion to move either upward or downward from the current
presumptive term based on the "Chaney criteria" - statutory
guidelines based on the 1970 Alaska Supreme Court case, Chaney
v. State - which are statutorily set out in 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.
MR. FINK offered his thought that the proposed sentencing ranges
currently listed in SB 56 are simply a starting point, and asked
the committee to take a hard look at those ranges and consider
narrowing them as he's suggested. He then offered his belief
that Section 1 is potentially unconstitutional for a number of
reasons, and quoted from the 2002 Alaska Supreme Court case,
Malloy v. State [original punctuation as provided by Mr. Fink]:
Donlun accurately presaged Apprendi's holding
aggravating facts must be charged [in the indictment]
and proved beyond a reasonable doubt to the jury when
their existence would allow or require the court to
impose a sentence exceeding the maximum otherwise
authorized.
MR. FINK therefore surmised from this statement and from another
of Justice Scalia's statements in Blakely that if a judge wants
to go outside a presumptive sentencing range, then the
justifying factors must be included in the indictment and proved
to the jury, and that to do otherwise would violate both Malloy
and Blakely. With regard to Section 6, he opined that it
constitutes an unconstitutional delegation of power from the
judicial branch to the executive branch. With regard to Section
7, he opined that it is also unconstitutional as currently
drafted, because currently, under AS 12.55.120 and Rule 215 of
the Alaska Rules of Appellate Procedure, a defendant may not
seek a sentence review as of right if his/her sentence is under
two years. However, the defendant may petition the [Alaska]
Supreme Court for discretionary review.
MR. FINK went on to note that that statute has been upheld in
Rozkydal v. State, a 1997 Alaska Court of Appeals case, and that
the court did so by making a distinction between the right to
review and a discretionary petition for review. Thus, if a
sentence is under two years, one doesn't have the right to
appeal but does still have the right to petition, and so there
would be no violation of due process. However, the court in
that case went on to say that if a jurisdictional statute was
construed as prohibiting the court from reviewing any ruling in
a criminal case except those rulings expressly made appealable,
then that statute would raise serious constitutional problems
under Article IV, Section 2, of the Alaska State Constitution,
which states that the supreme court is the highest court in the
state with a final appellate jurisdiction.
MR. FINK characterized Section 7 as attempting to take away that
appellate jurisdiction by taking away the right to petition, and
predicted that for this reason, Section 7 will be found to be
fairly unconstitutional. Also with regard to Section 7, he
offered his understanding that the Department of Law (DOL) has
stated that it wants to make minimal changes to Alaska's
sentencing structure so as to preserve it as much as possible
while complying with Blakely. If that is the case, however, why
change the current statute regarding when a sentence can be
appealed? That statute is not tied to presumptive sentencing
and thus does not need to be amended to comply with Blakely, he
opined, since it simply provides a right to appeal for
excessiveness if one's sentence is over two years. He asked the
committee to consider deleting Section 7. Referring to Section
11, he offered his belief that it eliminates the court's ability
to impose a suspended sentence or grant an SIS, and that the DOL
has a proposed amendment that would change that.
MR. FINK then suggested that the committee consider amending the
bill to provide the courts with a mitigator when [the defendant]
suffers from a mental defect - for example, fetal alcohol
spectrum disorder (FASD). He recommended the following
language, "If one has a mental defect, such as fetal alcohol
syndrome, that is insufficient to constitute a complete defense
but would significantly affect the defendant's conduct, the
court may consider it in sentencing", and then adjust the
sentence downward. He offered his belief that many judges want
this type of mitigator because it would allow them to more
justly sentence the mentally ill, of which there are many in
Alaska and who are not as culpable as those with full mental
faculties. He relayed that his suggested amendment is modeled
after the language currently in AS 12.55.155(d)(3) with some
modification so that it pertains to "mental defect", and
characterized it as providing an important mitigator.
1:33:47 PM
MR. FINK also suggested that the committee consider amending the
bill to provide a mitigator for a defendant who is actively
participating in or has completed treatment relevant to the
offense before sentencing; for example, substance abuse
treatment or anger management courses. Actively participating
in treatment prior to sentencing indicates the defendant's
willingness to be reformed, and this should be encouraged as a
matter of public policy. To some extent, obtaining such
treatment is now recognized by the courts; when a defendant
enters a residential treatment program prior to sentencing,
he/she can count that time against his/her jail time. This is a
recognition that treatment should be encouraged, and is a better
way than incarceration to address many of the state's crime
problems. To address the argument that defendants can simply
receive treatment at Department of Corrections' facilities, he
pointed out that such treatment opportunities are very limited
and are only available after sentencing, and characterized that
argument as mixing apples and oranges. Making treatment a
mitigating factor rewards defendants who seek help on their own
before sentencing, and should be encouraged, he concluded.
1:34:52 PM
CHAIR McGUIRE confirmed that there is an amendment forthcoming
regarding Section 6, and surmised that there will be further
discussion regarding section 7. She said she agrees with Mr.
Fink on the issue of having a mitigator for a mental defect, and
asked him whether he wanted to define mental defect in any way.
MR. FINK suggested that perhaps others may be able to better
address that issue, but suggested making any definition somewhat
broad and then allowing the judge discretion.
CHAIR McGUIRE noted that judges are not required to consider
mitigating factors when sentencing. On the issue of providing a
mitigating factor for those seeking treatment, she relayed a
concern she's heard that after hearing about such a mitigator, a
defendant might simply get treatment in order to lower his/her
sentence, though such might not necessarily be a bad thing. She
mentioned her concern with regard to defining "treatment",
indicating that she wouldn't want a defendant have his/her
sentence mitigated for participating in a program that doesn't
meet certain criteria.
MR. FINK acknowledged that point, and suggested that an
amendment regarding this issue could reflect that one must be
actively participating in a recognized treatment program and
must remain in compliance with it. Judges must be convinced
that the defendant is doing everything possible to receive
treatment, he remarked, and mentioned that such is done now with
regard to alcohol related crimes.
CHAIR McGUIRE said she is inclined to support Mr. Fink's
suggested amendments, since they would simply be putting current
policy into statute. She remarked that a staggering number of
people in the DOC system are mentally ill. On the issue of
providing a mitigator for seeking treatment, she pondered
whether such a mitigator should be written so as to make it
clear that treatment received before a crime is committed would
not qualify.
MR. FINK acknowledged that point.
1:39:53 PM
REPRESENTATIVE GARA asked Mr. Fink his opinion with regard to
whether requiring a judge to issue a finding when increasing a
sentence will help keep sentences closer to what they are under
the current sentencing scheme.
MR. FINK opined that it would, and offered his understanding
that judges currently are required to make findings under the
Chaney criteria. He surmised that the drafter, in using the
language currently in Section 7, is attempting to avoid the
problem of a judge making "aggravator-like" findings. He
elaborated: "If that's the case, maybe that could be more
specific if this language is kept, because I don't think you can
get away from requiring that the judge make Chaney criteria
findings; ... you have to make findings so that it would be
reviewable on a petition (indisc.)."
REPRESENTATIVE GARA asked whether it would be constitutional for
the law to say that a judge could use Chaney criteria findings
to increase a sentence.
MR. FINK opined that such wouldn't create a Blakely problem.
REPRESENTATIVE GARA surmised that such would keep the law
similar to what is now with regard to sentence lengths.
1:43:19 PM
SIDNEY K. BILLINGSLEA, Attorney, Alaska Academy of Trial Lawyers
(AATL), mentioned that her comments would echo those of Ms.
Wilson and Mr. Fink, and characterized SB 56 as an end run
around the intent of Blakely and the "follow up" cases - United
States v. Booker and United States v. Fanfan, which deal with
federal sentencing guidelines - in that it is about increasing
penalties to convicted people while decreasing the government's
burden of proof to accomplish those increases in penalties. As
currently written, she opined, SB 56 strips appeals of
sentences, denies SISs, and denies periodic sentencing in some
cases. With regard to the accompanying letter of intent, she
remarked that although it denies that the effects of the
[legislation] are intentional, the effects clearly are not
accidental, since "the numbers" were deliberatively placed in
the bill.
MS. BILLINGSLEA opined that the sentencing ranges currently
proposed in SB 56 don't take into account the minimum range of
presumptive sentencing; in fact, she added, they don't appear to
be addressed at all. Currently under [proposed] AS 12.55.155,
the sentencing court can decrease the presumptive terms down by
50 percent in instances where the presumptive terms are more
than four years, but must prove statutory mitigators by clear
and convincing evidence. In contrast, however, the sentencing
court, under proposed AS 12.55.155, can impose four-year and
two-year increases - depending on the crime - using only a
preponderance of the evidence standard or a finding under the
Chaney criteria. She opined that if SB 56 were to not increase
penalties and only comply with Blakely, it should have a
sentencing range that goes down to the statutorily mitigated
minimum, which would be 50 percent of current presumptive
sentences exceeding four years, and goes up one to two years
above current presumptive sentences.
MS. BILLINGSLEA, offering an example, referred to Section 8, and
suggested that the language being changed in subsection (c)(1)
should set a range of two and half years up to five, six, or
seven years. She said she recognizes, however, that that may be
somewhat distasteful to those who want to increase penalties,
but it would be consistent with the concept that findings of
fact will no longer be required in order to increase penalties
by a certain number of years. She suggested, though, that it
would be a good idea to put in Section 7 language specifying
that the court needs to make [Chaney criteria] findings, as has
just been discussed by Representative Gara and Mr. Fink.
MS. BILLINGSLEA then referred to Section 2, specifically the
language being added regarding periodic sentencing that says:
", but only if an employment obligation of the defendant
preexisted sentencing and the defendant receives a composite
sentence of not more than two years to serve". She said that
she is not particularly opposed to the latter half of that
language, but opined that if the goal is to encourage
rehabilitation, then it is not necessary to add the stipulation
that the employment obligation preexisted sentencing. Sometimes
people, especially young people, need a wakeup call, and so when
they're arrested and charged with a crime and prosecuted for
one, that's sometimes what it takes to wake them up and make
them responsible citizens. And sometimes bail conditions and
the restrictive living that they go through pre-sentencing
causes them to clean up their lifestyles and get jobs. Such
people shouldn't be penalized for getting a job during the
course of their prosecution, and by allowing them to stay
employed, it also encourages the payment of fines and penalties;
she therefore suggested that the language regarding preexisting
employment obligations should be eliminated.
1:49:34 PM
REPRESENTATIVE GRUENBERG asked her to comment on the letter of
intent.
MS. BILLINGSLEA said she'd not yet read it but has listened to
Ms. Parkes's comments regarding it.
REPRESENTATIVE GRUENBERG said his concern is that since it is
only letter of intent, judges, lawyers, prosecutors, and
defendants will seldom see it, thus he intends to offer an
amendment inserting the intent language into the bill so that it
goes into the uncodified section of law.
MS. BILLINGSLEA replied:
If, in fact, the letter of intent says what Ms. Parkes
suggested that it says, which is, this bill is
intended to address Blakely and not intended to
increase the sentences, I think that ... sets up a
cognitive dissonance, in my mind, because it doesn't
say what it does. ... The fact of the matter is, it
increases sentences across the board for people
convicted of crimes in Alaska and it removes some of
the rights and remedies that they have.
REPRESENTATIVE GRUENBERG mentioned that he'd be offering other
amendments as well.
1:51:47 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), remarked that there are a variety of solutions to "the
Blakely problem" that the legislature could consider. He
relayed that the ACS does have concern with Section 6 - which
grants probation officers the authority to set conditions of
probation - in that it constitutes a significant departure from
current practice, but he is expecting that concern to be
addressed via a forthcoming proposed amendment which would
delete Section 6. He noted that Section 11 also gives the ACS
concern in that it appears to contain a drafting oversight, one
that would eliminate the authority to grant SISs in a whole
variety of cases for which the courts still wish to able to
grant SISs; he offered his belief that that concern, too, will
be addressed via a forthcoming proposed amendment.
MR. WOOLIVER mentioned that the ACS does not yet know what
impact SB 56 will have on the ACS, noting that the Blakely
decision is responsible for most of the impact the ACS will
experience. He remarked that it's hard to gage the bill's
fiscal impact. Without the bill, under Blakely, all cases
involving aggravators would go to trial; with the bill, there
will be a presumptive range, and so the ACS might still see
cases involving aggravators that it would not previously have
seen pre-Blakely. He suggested that under the bill, there might
be incentives to settle because the penalties will be greater,
though there might also be fewer incentives to settle for the
same reason.
MR. WOOLIVER noted that years ago, when the state first got rid
of all plea bargaining, the Alaska Judicial Council (AJC)
conducted a study on the impact of that change and, according to
his understanding, determined that initially there was a
statistically significant increase in trials, but that changed
within a year or so, with the number of trials decreasing to
what it was before the change. He suggested that something
similar might occur after the adoption of SB 56. He relayed
that if the ACS does see a significant increase in the number of
trials as a result of SB 56, it will seek additional funds via
the regular budget process in order to offset costs.
1:55:00 PM
LIEUTENANT SHARP noted that he'd recently spoken in support of
HB 78 and provided testimony regarding the 2004 Alaska Court of
Appeals case, Reichel v. State, which he characterized as
illustrative of the need for the changes proposed via Sections
26 and 30-31 of SB 56. He said that the DPS supports SB 56.
Sections 26 and 30-31 address a police officer's role in
detaining probationers/parolees. The proposed language outlines
a good standard, he opined, for police officers to follow in
instances such as presented in the Reichel case; the proposed
language specifies that a police officer "may" - rather than
"shall" - detain a probationer/parolee but would first be
required to have a "reasonable suspicion" that a violation of
probation/parole conditions has occurred. Also, the proposed
language specifies that a police officer must have probable
cause before he/she can arrest a probationer/parolee without a
warrant.
LIEUTENANT SHARP said that unfortunately, many
probationers/parolees violate conditions of their release.
Police officers are on the street every day in Alaska, and often
serve as the eyes and ears of parole/probation officers. He
offered his belief that SB 56 provides a helpful tool for police
officers as they strive to protect the communities and citizens
of Alaska, and that it will aid probation/parole officers in
their efforts to have probationers/parolees meet conditions of
release. A quick revocation of probation/parole is many times
exactly what is needed to help with rehabilitation - it gets the
person to rehab quickly, it gets them off the street, and it
sends a message that they must comply with their conditions of
release or they will have the privilege of probation/parole
taken from them.
REPRESENTATIVE ANDERSON surmised that Sections 26 and 30-31
provide police officers with flexibility under reasonable
parameters.
LIEUTENANT SHARP concurred with that summation.
REPRESENTATIVE GRUENBERG asked whether Sections 26 and 30-31 are
grounded in Blakely.
LIEUTENANT SHARP offered his understanding that they are not.
CHAIR McGUIRE acknowledged that these sections constitute a
fundamental policy change that doesn't come under Blakely.
2:00:12 PM
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), said that the DOC
supports the legislation. With regard to Section 6, she said
that it was intended to codify the DOC's current practice, but
the language goes too far and is problematic, so the DOC
supports its removal at this time so as to give the DOC an
opportunity to work with other members of the criminal justice
system in creating proper language. The DOC does not want to
substantially change [its current practice] or increase its
authority, she assured the committee; rather, it merely wants to
enforce conditions of probation as officers of the court.
MS. PARKER referred to the section pertaining to periodic
sentencing [Section 2], and said that that section is very
important to the DOC because, from a management point of view,
one of the problems with periodic sentencing is that it requires
the DOC to "book in, release, book in, release," whenever the
court orders periodic sentencing. It is basically a court-
ordered furlough, and the DOC is not involved in assessing the
risk the offender presents when released into the community nor
is he/she under any supervision. Periodic sentencing is very
problematic from a population management perspective and is also
very disparate between offenders.
MS. PARKER noted that the Alaska Court of Appeals has narrowed
the aforementioned problem substantially via the 2002 State v.
Felix decision. However, because some judges are still imposing
periodic sentencing, Section 2 will help further limit its
imposition. She said that it is not a huge problem but does
occur 2-10 times a year. In conclusion, she said that the DOC
strongly supports Section 2, as well as Sections 26 and 30-31,
which pertain to police officers' ability to detain and question
probationers, because it thinks that those proposed changes will
benefit the community as a whole, particularly in rural
communities where Village Public Safety Officers (VPSOs) - under
special statutory authority - work closely with probation/parole
officers to provide supervision of probation/parolees.
2:05:15 PM
MS. PARKER, in response to questions, relayed that the DOC has
submitted zero fiscal notes for the first five years under SB
56; that when considering a bill's fiscal impact, the DOC looks
at the potential overall impact on the entire department; and
that the DOC cannot predict how many cases will be subject to
charge bargaining and thus result in a sentence of fewer years,
and so therefore it cannot determine whether the sentences
imposed under SB 56 will be substantially different than those
imposed currently.
REPRESENTATIVE GARA referred to the language change proposed on
page 6, line 26 - "12 to 16 [10] years" - and noted that the low
end of the proposed range is two years more than the current
sentence. He asked whether that is a typo. If it isn't a typo,
he questioned, why isn't the DOC anticipating an increase in
costs associated with this increase in sentence length.
MS. PARKER offered her belief that that language is not a typo,
and suggested that the DOL could better address that issue.
CHAIR McGUIRE mentioned that the bill's fiscal impact will be
further considered in the House Finance Committee.
2:09:27 PM
SUSAN PARKES, Deputy Attorney General, Criminal Division, Office
of the Attorney General, Department of Law (DOL), explained that
the language change proposed on page 6, line 26, is not a typo.
She referred to a chart in members' packets that compares the
current presumptive terms with the presumptive ranges proposed
in SB 56. In general, the proposed presumptive ranges start
with the current presumptive terms, but in instances where the
DOL felt that logically the sentences should be more substantial
to begin with - such as for a first time conviction of an
unclassified felony sex offense involving the use of a weapon or
resulting in a serious injury, as referenced on page 6, line 26,
or a second conviction of a class A felony sex offense, as
referenced on page 7, line 18 - the ranges start two years
higher than the current presumptive term. In both the
aforementioned instances, and in only those two, the presumptive
term is 10 years, but the bill proposes a range of 12-16 years;
she indicated that the DOL felt that these changes would provide
consistency within the new sentencing scheme, and that the
current lower presumptive terms for those two types of
convictions didn't seem to make sense and were thus the result
of an oversight.
REPRESENTATIVE GARA characterized the increase in sentences for
those two types of convictions as a policy call, but indicated
that the increase doesn't make sense.
MS. PARKES agreed that the increase is a policy call, and
suggested reviewing the chart to gain a better understanding of
why the DOL felt the proposed increase to be in order given that
both the current presumptive term and the proposed range for a
first time conviction of a class A felony sex offense involving
the use of a weapon or resulting in a serious injury - as
referenced on page 7, line 16 - is 10 years and starts with 10
years, respectively.
2:17:22 PM
MS. PARKES turned attention to Section 7, and opined that it
does not deny the right to appeal, that instead it just says
that if one's sentence falls within the legislatively-designated
standard range, then the sentence may not be reversed as
excessive. She suggested that the language is attempting have
the legislature, rather than the court of appeals, set
sentencing ranges. She went on to say:
The concern here ..., and the concern with some of the
language that's been offered regarding findings, is
that we will in fact find ourselves in another Blakely
situation. We're setting up ranges, and the new
scheme gives the judge the discretion to set within
the range. Now, we anticipate [that] anyone who gets
higher than the bottom of the range may want their
sentence reversed as excessive. And we believe ...,
in drafting this, that it is constitutional for the
legislature to say, "If your sentence falls within our
standard range, it's not excessive; we've made that
policy call." If you set up language to say to a
judge, "You must make findings [in order] to go higher
in this range than the very bottom," I do believe you
are possibly creating a Blakely problem, and I think
that was in some other testimony.
REPRESENTATIVE COGHILL asked under what circumstances a person
could [appeal a sentence].
MS. PARKES said that a review would be possible if there was
some procedural error, if there was an argument that the judge
considered information that wasn't properly presented, if the
judge wouldn't consider information that the defendant felt
should have been considered, or if the defendant proposed a
mitigator that the judge didn't find. In other words, any
appellate issue other than excessiveness can be raised. She
mentioned that Rozkydal v. State, a 1997 Alaska Court of Appeals
case, would not be affected by the language in Section 7.
CHAIR McGUIRE pointed out that a judge already has to make
findings that are consistent with the Chaney criteria, and
remarked that there is a concern that if it is not made
abundantly clear that a sentence falling within the range set by
the legislature cannot be reversed on the grounds that it is
excessive, then the state could find itself dealing with another
Blakely problem.
2:22:27 PM
REPRESENTATIVE COGHILL asked whether Chaney criteria can be
appealed.
MS. PARKES offered her belief that under current law, judges do
make findings pursuant to the Chaney criteria, and so requiring
something generic like that to justify the sentence should not
run afoul of Blakely. A problem would only arise, she
suggested, if findings are required in order to go above the
bottom of the proposed ranges.
2:23:32 PM
REPRESENTATIVE GRUENBERG surmised, then, that under the language
in Section 7, a sentence cannot be reversed as excessive even if
one claims that it is excessive under Chaney criteria.
REPRESENTATIVE GARA remarked that there are two parts to Section
7, and offered his belief that one part says that a person can
no longer appeal a sentence as excessive if it falls within the
range established by the legislature, and that the other part
says that a judge no longer has to issue findings to justify an
increased sentence as long as it falls within that range. The
appeal right being taken away is the right of person to say, "I
think my sentence [is] too long"; however, that really is a
person's main reason to appeal a sentence - it's the crux of the
appeal. He mentioned that he will be offering an amendment to
delete section 7, and that the drafter has relayed to him that
even without Section 7, the bill will still comply with Blakely.
REPRESENTATIVE GARA, referring to the part of Section 7
pertaining to a judge no longer having to issue findings in
order to increase sentences within the range, said:
I think what people are saying is, we don't want
judges to go on the record and say why they increased
a sentence, because they might say something that the
United States Supreme Court has said they're not
allowed to consider. And by putting it on the record,
we might see that they violated Blakely. And so we'll
just let them not say why they're increasing a
sentence; we'll let them keep that secret. As long as
they keep it secret, nobody will be able to say they
considered something that the [U.S.] Supreme Court
said they weren't allowed to consider ... [under]
Blakely.
I think that would be an awful thing for us to do, to
say judges can secretly violate the United States
Constitution by not telling us why they're going to
increase a sentence and, therefore, "We're going to
relieve you of the burden of putting your findings on
the record." In this range, between 5-8 or 7-11
[years], the [U.S.] Supreme Court has said judges can
consider certain factors - they're generally the
Chaney factors - [but] they can't consider any of
those 30 factors in our aggravators. If you want to
use any of those aggravators, you have to go and do a
jury trial.
But you [can consider] these limited things that don't
require these extra aggravator findings. So the
United States Supreme Court really came in and they
said, "Look, the easy way to do this is, anything over
the presumptive term, go to a jury if you want
something more." We're going to say to judges, "Well,
you can do more than the presumptive term," we're
going to give them some flexibility - and that's okay,
I don't mind doing that - but they're still not
allowed to consider these extra factors that the
United States Supreme Court has said you have to go to
a jury to prove. [Judges will only be able to use]
the Chaney factors.
So I think the subtext of what's going on is, I think
people are worried that if a judge is required to put
their findings on the record to increase a sentence,
then the court of appeals might find out they
considered things they weren't allowed to consider.
Well I think that's the exact reason why they should
put that on the record; they shouldn't be considering
things they're not allowed to consider. They should
let us know what they're considering. If they're
considering factors the United State Supreme Court
said you're not allowed to look at, well that's now on
the record.
CHAIR McGUIRE pointed out that it is the legislature's
prerogative as policy makers to decide what presumptive sentence
they might choose to assign to a particular crime. And so it
would be perfectly compliant with Blakely as well for the
legislature to forgo using the proposed ranges and simply use
the highest number in those proposed ranges, to simply say, for
example, "We find that for a first offense felony with a weapon
it's going to be 12 years." The legislature could then also put
the onus on judges to look at mitigators in order to reduce the
sentence. She offered her belief that there is not some
insidious plot [to increase sentences]; rather, the legislation
offers a way to comply with Blakely and still get at the
underlying policy goals that this legislature has set. She
surmised that members would agree that having a separate trial
for every aggravator is impractical from a fiscal standpoint.
REPRESENTATIVE GARA agreed with that point, but said the
committee should consider that one of the purported goals of the
bill is to not increase sentences, to come up with, as much as
possible, something that looks like the existing sentence
structure. Therefore, he indicated, even though the legislature
has the authority to increase sentences, it should forgo doing
so without careful individual consideration of each proposed
sentence increase. He suggested that they delete section 7,
surmising that doing so will add accountability to the system
because it is better for judges to say why they are
[increasing/decreasing] a sentence. Deleting Section 7 will
leave the current appeal rights in place, particularly the basic
right to appeal a sentence on the grounds that it is too long.
With the deletion of Section 7, he remarked, he would [be
willing to] give the DOL what it wants with regard to increasing
sentences as the bill currently proposes, since accountability
protections will be in place.
REPRESENTATIVE GARA relayed that he'd spent several days working
with Legislative Legal and Research Services, the OPA, and the
PDA to come up with a way to accomplish "these two goals and not
violate Blakely," and the response he got from all he talked
with was that Blakely won't be violated by requiring courts to
issue findings and by allowing the right to appeal [a sentence
as excessive].
2:31:58 PM
MS. PARKES said she supports Chair McGuire's comments regarding
the legislature's authority to set ranges, and offered her
belief that once ranges are set, no further findings are
required, that in fact, if the bottom of the range is set as the
standard without findings of any type, [then issuing findings]
would be running afoul of Blakely.
2:32:48 PM
REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature, speaking
as the sponsor of HB 78, companion bill to SB 56, made comments
regarding the original version of SB 56 and current law. He
opined that CSSB 56 provides judges with a lot of latitude, and
that if [Section 7 is removed], then every single case will be
appealed, which will engender fiscal repercussions. [Victims]
have rights too with regard to sentencing issues, he pointed
out. Representative Samuels said he would oppose any amendment
deleting Section 7, and offered his belief that the sponsor of
SB 56, Senator Gene Therriault, Alaska State Legislature, would
oppose it as well.
2:34:07 PM
REPRESENTATIVE COGHILL offered his belief that a lot of cases
are "charge bargained," that such is troublesome because victims
also feel the weight of charge bargaining, and that it's a huge
issue. He relayed his understanding that charge bargaining
doesn't even occur until a person has been found guilty, and
that at that time a judge has the ability to find mitigators.
MS. PARKES concurred.
REPRESENTATIVE COGHILL said it seems like under SB 56, a
defendant has significant rights all during the process.
MS. PARKES, in response to a question, said that if the state
has entered into a plea agreement with a defendant, the judge
can reject it.
REPRESENTATIVE COGHILL opined that the proposed sentencing range
does not seem excessive as long as the right to appeal is not
done away with except on the grounds that a sentence is
excessive.
MS. PARKES concurred with Representative Coghill. She pointed
out that if a judge finds aggravators and imposes a sentence
above the standard range, then the limitation proposed in
Section 7 regarding appeals would not apply.
2:38:02 PM
REPRESENTATIVE ANDERSON opined that the bill doesn't have to
address only Blakely.
REPRESENTATIVE GRUENBERG said he doesn't have a problem with
"these" provisions being in the bill as long as there is
adequate opportunity to consider the ramifications of each
particular section.
CHAIR McGUIRE mentioned that the committee would soon be
addressing proposed amendments. She relayed that one of her
concerns about the letter of intent is that it should reflect
that the bill is doing more than just complying with Blakely.
She posited that this is an opportunity as policy makers to look
at what they want to set as appropriate sentencing ranges for
judges to consider.
2:43:13 PM
REPRESENTATIVE GRUENBERG suggested that perhaps they should
establish a sentencing commission to consider all the
ramifications of raising sentences, and provide that commission
with a due date by which it must report its findings to the
legislature. He expressed concern about rushing the bill
through the process, and posed the question, "Aside from a
Blakely fix, why are we not taking the time to do this in a
really comprehensive manner?"
MS. PARKES said she does not agree that there is a lot in the
bill that doesn't pertain to Blakely.
REPRESENTATIVE GRUENBERG pointed out, however, that the bill
takes away a person's right to appeal.
MS. PARKES reiterated her belief that the bill is not doing
that; rather, the bill is simply saying that a sentence cannot
be reversed on the grounds that it's excessive as long as it's
within the range set by the legislature. Noting again that the
bill is changing presumptive sentencing terms to presumptive
sentencing ranges, she characterized the change with regard to
appeals as an appropriate, responsive change. She remarked:
I think the most important thing is ... [that] right
now, our criminal justice system literally is in
chaos: we have uncertainty with every [sentence].
That's the rush.
REPRESENTATIVE GRUENBERG countered, "But is it in chaos because
of the right of appeal?"
MS. PARKES said no, that the criminal justice system is in chaos
because of Blakely, which the bulk of SB 56 addresses. That's
the urgency. Until something is in place, that chaos will
continue. She went on to describe what some of that chaos
entails:
[We have] judges making opposite decisions; we have no
certainty; everybody's appealing; we've got defense
attorneys filing motions in one case saying we have to
take aggravators to grand jury, and then in another
case that same public defender's filing a motion
saying we can't legally take them to the grand jury.
2:46:13 PM
REPRESENTATIVE GRUENBERG said he wants to focus just for the
moment on the right of appeal, and characterized the provision
pertaining to that as one of the weaknesses in the bill. Before
taking away that right, he asked, why not ask a commission to
consider the issue.
MS. PARKES acknowledged that the legislature has the authority
to do that, as well as to take out any piece of the bill that it
considers inappropriate. However, she asked that the committee
continue to consider complying with Blakely expeditiously via SB
56 as a whole.
2:47:05 PM
CHAIR McGUIRE suggested that the committee begin considering
proposed amendments.
REPRESENTATIVE GARA asked for clarification on the issue of
bargaining.
MS. PARKES replied, "There are cases that are only charge
bargained, there are cases that are charge and sentenced
bargained, there are [cases] that are only sentenced bargained
[and pled] as charged; so it can occur in all formations."
2:49:52 PM
CHAIR McGUIRE made a motion to adopt Amendment 1, which
contained a purpose statement at the end and which read
[original punctuation provided]:
Page 5, line 19, following "one to three years;"
insert:
a defendant sentenced under this subparagraph may, if
the court finds it appropriate, be granted a suspended
imposition of sentence under AS 12.55.085 if, as a
condition of probation under AS 12.55.086, the
defendant is required to serve an active term of
imprisonment within the range specified in this
subparagraph, unless the court finds that a mitigation
factor under AS 12.55.155 applies;
Page 6, line 9 - 14
Delete all material and insert the following"
(g) If a defendant is sentenced under (c), [(d)
1] , (d) 2, d (3), d (4), [(e) 1], (e) 2, (e) 3, (e)
4, or (i) of this section, except to the extent
permitted under AS 12.55.155 - 12.55.175,
[(1) imprisonment may not be suspended under AS
12.55.080;]
[(2) i] (1) Imposition of sentence may not be
suspended under AS 12.55.085;
[(3)] (2) terms of imprisonment may not be
otherwise reduced.
The purpose of this amendment is to maintain the
court's ability to impose a Suspended Imposition of
Sentence (SIS) for a first felony offender who commits
an eligible C or B felony. The bill was not intended
to make a change in current SIS practice; the
amendments should restore the status quo.
CHAIR McGUIRE offered her belief that Amendment 1 would correct
the language in the bill regarding Suspended Imposition of
Sentence (SIS).
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being none, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
which read [original punctuation provided]:
Page 3 line 15 - page 4 line 9
Strike section 6
CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being none, Amendment 2 was adopted.
REPRESENTATIVE GARA 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"
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE GARA indicated that Amendment 3 deletes Section
7, thus retaining current law, which, he opined, provides that a
judge must state on the record, either orally or in writing,
his/her reasons for imposing a sentence, and provides that a
defendant has the right to appeal a sentence as excessive. He
offered his belief that the drafter is of the opinion that
[adoption of Amendment 3] will not violate Blakely. He went on
to say:
The reason why judges issue findings when they
sentence somebody is so you know that what they did
was thought out. And it's so that other judges can
see how similarly situated crimes have been sentenced
in the past. So you have more sentence uniformity
instead of sentence disparity. If you let judges keep
their reasons secret, then you're going to not give
future judges guidance on what kind of sentence a
particular crime should get. So by issuing findings,
you create this broad body of a record, so people know
what kind of worst conduct justifies what kind of
worst sentence. ...
It's frankly also useful to people who observe the
court proceedings, including victims, to have a judge
go on the record and ... say, "I think this is a case
that justifies a longer sentence because I think the
conduct was particularly egregious." And I think ...
a victim, I think the public, wants to hear somebody's
sentenced and why somebody's being sentenced to what
their being sentenced for; I think they want to hear
the reasons for the punishment. And so it helps with
the uniformity. Frankly, there is this aspect of
fairness within the judicial process; you want to know
that you're dealing with people fairly, ... and so I
think it's fairer.
I think it results in more uniform sentences, because
you would hate to have a whole bunch of people of one
race always get the five-year sentence and a whole
bunch of people of another race always get the eight-
year sentence, and never know why. At least a judge
should go on the record and say why, ... and it's not
a burden on a judge to ask them; I think that's just
doing their job. They're supposed to think things
through, and I don't think it hurts them to make them
say ... how they reached their conclusion.
REPRESENTATIVE GARA added:
The second part [of Amendment 3] is, requiring that
the same appeal rights that we have today exist in the
future. ... By issuing findings and letting things go
up on appeal, the [Alaska] Court of Appeals, over
time, will develop a body of law that people can rely
on in issuing the proper sentence in the future;
again, it helps with uniformity because you'll know
you'll go up to the [Alaska] Court of Appeals, you'll
see that certain kinds of conduct deserve a longer
sentence, and, since you'll have this written record
from the [Alaska] Court of Appeals, I think it will be
helpful to everybody in issuing sentences. And I
think it might actually help resolve cases more
quickly also by forcing plea bargains.
So I don't think there's anything wrong with the
historic process we've had in this nation of requiring
judges to say why they're doing something and [of
letting] ... somebody have their basic right to an
appeal if they think their sentence is too long. ...
My impression, at least from the limited work that I
did in ... criminal law, was that [defendants] didn't
win [their] sentence appeals too often, but at least
it gives somebody the chance. And ... with those
things, ... then I'll let the state change all ...
sentences [as proposed in the bill]. ...
I think, frankly, I'm being pretty flexible on this.
I'm letting you replace the strict term and I'm
letting you implement this big range, and the reason
I'm comfortable letting you do that, with my
amendment, is because I know at least the judges are
forced to think things through, because that's what
requiring them to put their findings on the record
gets them to do, and at least there's this aspect of
fairness that allows the appeal to go forward.
So ... I think, with my change, you can have your
range and I don't think it will radically change the
sentencing numbers from what we have today. But once
you make the system less accountable and don't require
findings to be put on the record and don't allow
appeals, then I think the sentences are going to up
and up and up. And if that's our intention, then I
think we should just go crime by crime and decide what
the appropriate sentence is with a new bill instead of
doing it with a blanket bill like this.
2:57:55 PM
REPRESENTATIVE ANDERSON offered his belief that Amendment 3
could strip the heart of the bill, and asked the DOL to address
Representative Gara's points.
MS. PARKES asked whether Amendment 3 would do anything other
than delete Section 7.
REPRESENTATIVE GARA indicated that it would retain current law
regarding issuing findings and appealing sentences on the
grounds of excessiveness.
REPRESENTATIVE GRUENBERG offered his understanding that in
addition to deleting the language of Section 7, Amendment 3
makes conforming changes to the rest of the bill.
MS. PARKES said the DOL's concern is that the legislature should
be setting the sentencing range, rather than the [Alaska] Court
of Appeals just because a judge doesn't say "the magic words".
She offered an example of a case that was remanded back to court
because the Alaska Court of Appeals felt that the judge didn't
articulate his reasons for the sentence well enough. She opined
that once sentence ranges are instituted, adoption of Amendment
3 will engender more appeals based simply on the fact that the
defendant got sentenced at the top of the range instead of at
the bottom.
2:59:57 PM
REPRESENTATIVE SAMUELS opined that 90 percent of cases are
"dealt away anyway," and thus consistency will remain in those
cases. He predicted that as soon as sentencing ranges are
instituted, everyone will be appealing his/her sentence if it is
above the bottom of the range. He went on to remark, "Justice
delayed is justice denied," and offered his belief that even for
what might be considered a simple case, the appeal process can
last for years and years. He also opined that the entire bill
provides a reasonable way of complying with Blakely.
REPRESENTATIVE COGHILL indicated that he would be maintaining
his objection to the adoption of Amendment 3.
3:01:55 PM
REPRESENTATIVE GRUENBERG referred to State v. Browder, a 1971
Alaska Supreme Court case, and opined that both it and Rozkydal
are on point. He offered his understanding that in Browder, the
state sought appellate review of a lower court decision, with
the question being whether that was permissible, since at that
time the legislature had placed substantial statutory
restrictions on the right of appeal. In that case, it was the
state's right of appeal, which was much narrower than the
defendant's right of appeal, that was at issue. The Alaska
Supreme Court said that even though there was no statutory right
of appeal, the state had a right to file a petition for review.
REPRESENTATIVE GRUENBERG surmised, therefore, that even though
an appeal can be specifically limited, other forms of review
could not be, and, thus, if a statute were construed as
prohibiting the court from reviewing any ruling in a criminal
case, except those rulings expressly made appealable, then that
statute would raise serious constitutional problems under the
supremacy clause, which, he opined, says that the highest court
in the land is the supreme court.
REPRESENTATIVE GRUENBERG asked, "Does this not pose a
significant constitutional question as to the constitutionality
of the language ... on page 4, line 13?" He said that even
though that language doesn't specifically use the term "appeal",
he believes that the defendant retains the right to file a
petition for review under the Browder line of authority. The
more important question, he remarked, is whether that provision,
if Amendment 3 is not adopted, will create an unconstitutional
statute and thus engender the expenses associated with
determining its constitutionality.
MS. PARKES offered her belief that the 1968 Alaska Supreme Court
case, Bear v. State, is the ruling case; it says that the
legislature has established, via statute, maximum and minimum
sentences for each offense, and that such are not reviewable by
[the Alaska Supreme Court]. In response to this ruling, the
legislature, via statute, specifically gave the Alaska Supreme
Court the authority to review sentences, and so this is the
statutory right to review sentences that is referred to in the
Rozkydal case. She concluded by saying that based on her
understanding of the Bear case, she doesn't think that [the
language in Section 7] presents any constitutional issues.
3:06:42 PM
CHAIR McGUIRE suggested to Representative Gara that in the
interest of time, he withdraw Amendment 3 and move it again at
the bill's next hearing.
REPRESENTATIVE GARA withdrew Amendment 3.
[CSSB 56, as amended twice, was held over.]
ADJOURNMENT
3:07:06 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:07 p.m.
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