Legislature(1995 - 1996)
06/30/1995 09:00 AM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
June 30, 1995
9:00 a.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
MEMBERS ABSENT
Senator Al Adams
Senator Johnny Ellis
ALSO IN ATTENDANCE
Senator Loren Leman
COMMITTEE CALENDAR
OVERSIGHT HEARING: POLICIES REGARDING CHARGE BARGAINING
WITNESS REGISTER
Laurie Otto, Deputy Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Shannon D. Hanley, Chief, Assistant District Attorney
3rd Judicial District
Department of Law
310 K St., Suite 520
Anchorage, AK 99501-1975
Kenneth J. Goldman, District Attorney
3rd Judicial District
Department of Law
310 K St., Suite 520
Anchorage, AK 99501-1975
Robert Bundy, U.S. Attorney for
District of Alaska
Anchorage, AK
John Salemi, Director
Public Defender Agency
900 W 5th Ave., Suite 200
Anchorage, AK 99501-2090
Kevin O'Leary, Police Chief
Municipality of Anchorage
P.O. Box 196650
Anchorage, AK 99519-6650
Mike Williams, Budisness Advisor
Chugach Alaska Corporation
560 E 34th Ave.
Anchorage, AK 99501
Janice Lienhart
Victims for Justice
619 E 5th Ave.
Anchorage, AK 99501
Brant McGee, Director
Office of Public Advocay
900 W 5th Ave., Suite 525
Anchorage, AK 99501-2090
Dr. Teresa Obermeyer
3000 Dartmouth Drive
Anchorage, AK
ACTION NARRATIVE
TAPE 95-35, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order in the Anchorage LIO conference room at 9:00 a.m.
In his opening remarks, SENATOR TAYLOR referred to an incident
known as the Franklin case, which occurred recently in Anchorage,
and he said the main purpose of the hearing was to find out if, in
fact, it is an anomaly, and, if not, what suggestions or solutions
might be posited by various members of the public and the agencies
so as to make certain that a Franklin case does not occur again.
Ancillary to that, he thinks it is important to understand if, in
fact, there has been any shifting of policy within this
administration or within previous administrations as concerns the
manner in which plea bargaining or charge bargaining is occurring
in the state of Alaska. He then invited Laurie Otto to testify
before the committee.
LAURIE OTTO, Deputy Attorney General, Department of Law, stated she
thinks the Franklin case was an anomaly, that the department did
not handle it properly, but she hopes through the testimony there
will be understanding of the circumstances that led up to that
case.
MS. OTTO, in presenting an overview on plea bargaining in the state
of Alaska, said all states, the federal government, all other
jurisdictions have plea bargaining as a part of their criminal
justice system. However, in 1975, former Attorney General Av Gross
forged new ground by banning plea bargaining in Alaska. He had
concluded that justice was not being served, just results were not
being reached, that there were greatly disparate sentences being
agreed to in different parts of the state, and he thought the
solution was to ban plea bargaining. There was a great deal of
resistance to the ban, especially among the law enforcement
community, because of concerns about it overloading the system.
She added that it did have a significant impact on the system.
In 1980 the plea bargaining ban was relaxed to allow dismissal of
multiple counts if somebody pled to the most serious charge with no
sentencing deals allowed. That same year the legislature passed
presumptive sentencing, which mandates specific sentences for
specific crimes. As the courts applied the presumptive sentencing
laws, they developed what they called "benchmark sentences" and, as
a result, it could be determined what sentence somebody was going
to get just by reading the court opinions.
In 1986 the plea bargaining policy was relaxed further by allowing
greater latitude to enter into plea agreements with authority
granted by somebody in the Criminal Division central office. Over
the years, from 1986 through 1991, those kind of negotiations, both
charge and sentencing bargaining, started happening with greater
and greater regularity.
The Alaska Judicial Council did a study on plea bargaining in 1991
and concluded that there was an official ban on plea bargaining in
Alaska, but, in reality, there was fairly widespread plea
bargaining going on. The Council recommended that the attorney
general evaluate the propriety of engaging in plea bargaining,
promulgate a policy for the department and live with the policy.
Following publication of the study, former Attorney General Charlie
Cole undertook that task, and then in 1993, he concluded that the
ban on plea bargaining should be lifted because plea bargaining
formed a valuable function in our criminal justice system, and that
is now the policy of the department.
Ms. Otto said when she returned to the Department of Law after a
four-year hiatus, she was shocked by the increase in plea
bargaining and the quality of the deals that were going on. She
referred to and discussed a handout on statistics she has gathered
entitled "Felony Percentages." She found that in Fairbanks 75
percent of the people who were charged with felonies by the DA's
office were convicted of a felony offense. Of those, 63 percent
were convicted of the crime with which they were charged, and only
7 percent were convicted of a misdemeanor. In looking at the
Anchorage DA's office of the cases that were filed as felonies in
FY 94, only 42 percent were convicted of felonies, 40 percent were
convicted of misdemeanors and only 27 percent were guilty as filed.
She then asked Shannon Hanley to discuss what was happening in
Anchorage that led to these numbers.
Number 175
SHANNON HANLEY, Chief Assistant District Attorney in Anchorage, who
has been with the Criminal Division since 1991, said when she went
to work there, she observed an aggressive policy of plea bargaining
going on in Anchorage, and the reason for this aggressive policy of
plea bargaining was because of the way that the office was set up.
There was an intake unit to which three attorneys were assigned,
and they were responsible for all of the felony cases that came
into the Anchorage District Attorneys Office.
Between 1991 and 1994, a number of attorneys were recruited and
hired. A lot of those attorneys were brand new to the state, and
although they had experience prosecuting in other areas, they had
to pass the Alaska Bar, become familiar with the Alaska rules, and
get up to speed as trial attorneys in Alaska. There were also
attorneys who had been in the misdemeanor unit who were being
promoted into the felony unit and did not have a great deal of
felony experience. So, in essence, in the period of 1991 to 1994,
the Anchorage District Attorney's Office was weak on strong felony
trial attorneys. This resulted in a good deal of plea bargaining.
By the end of 1994, the policies were very well established. They
were relied on by the court system, they were relied on by the
Public Defenders Agency. At the end of 1994, Ken Goldman was
appointed as the Anchorage District Attorney.
Number 275
KEN GOLDMAN, Anchorage District Attorney, said when he came to the
Anchorage office in 1994, he evaluated the system for about two
months. He found there was a high volume of cases (approximately
4,000 cases last year and approximately 2,000 of them were
felonies) and the mandate to the head of the intake unit was to
control the flow of cases to the trial attorneys, to keep the cases
getting down to the trial attorneys to be very minimal and to
resolve everything that could be resolved. He said the result was
that in order to resolve the cases, you had to basically give away
the cases whether they were good cases or bad cases.
Mr. Goldman pointed out that crime has gone up in Anchorage, their
prosecutions seem to have gone down, and the number of judges
assigned to the criminal bench have gone down. When looking at
numbers in Anchorage, the assaultive crimes, both felonies and
misdemeanors, as well as robberies have taken off.
As part of his evaluation of the system, Mr. Goldlman looked at
what was going in the office and he talked to almost everybody in
the law enforcement community to ask what was happening and what
could be done to fix the problem. He found the police were very
unhappy as to how the cases were being resolved. They would bring
in good cases and they would get resolved relatively cheap. There
was also a great deal of concern about the time it was taking to
resolve cases.
The trial attorneys were getting the cases from the intake unit and
they were coming down with these deals. They didn't like the
deals, but it was the mandate they were given. The plea bargains
Mr. Goldman saw were pretty much always favorable to the defendant.
Number 400
SENATOR TAYLOR commented that we still have the same attorney
general today that we had 18 months ago, so it all depends on which
boss we want to blame for the problem. LAURIE OTTO said the
person who was in her job before she took it had a personal
relationship with the former governor and the decisions that were
being made in the Criminal Division were generally being made by
the governor, not by the attorney general. She said this governor
has made it clear to the attorney general that he is responsible
for what happens in the Department of Law and that he expects her
to be responsive to the attorney general.
Number 450
KEN GOLDMAN said to address the problems, they redesigned the
office with a long range result in mind and created two additional
units: the property crimes unit and the violent crimes unit. When
they opened the property crimes unit, the flood gates opened in
their office, but things have leveled out and they have gotten rid
of the backlog that was sitting there for six months to a year.
The same is true with the violent crimes unit. The concept was, if
they have the best prosecutors in the office assigned to do the
most high risk cases and they sit down and discuss how to resolve
these, they are going to have attorneys who are not afraid to go to
trial, attorneys who know what a case is worth, and, hopefully,
resolve a case.
Mr. Goldman said they wanted to bring back the respect to the
system and the basic protection to the public. The office is now
having faster response time to the police and faster response time
to the victims. The attorneys' caseloads and workloads have
increased, but the attorneys have more control over their cases.
They are getting earlier indictments, they are getting more
indictments, and they are getting a chance to evaluate the cases by
talking to the victims and witnesses more when the memory fresh.
Depending upon the case, more of a case-by-case assessment is
taking place because now the intake unit is doing one thing: they
are looking at and evaluating those cases as they come in. The
cases are then sent to the Violent Crimes Unit where they are
reevaluated.
Mr. Goldman spoke to the impact the changes have had on the court
system where previously there were five criminal court judges, but
that number has been reduced to three, which has resulted in
increased caseloads for the judges.
TAPE 95-35, SIDE B
Using a chart, Mr. Goldman gave an in-depth overview on how
offenders are classified and charged.
Number 090
SENATOR MILLER asked what the overall difference in philosophy was
that resulted in the Fairbanks office having a 75 percent
conviction rate of felonies while the Anchorage office has a 42
percent conviction rate.
LAURIE OTTO responded that if you go back before 1991, the offices
were much more similar, but she thinks that part of is that they
brought people into the Anchorage office who grew up in a system
where there was plea bargaining, which is every place in the
country. This period of time in Anchorage is anomalous over the
years. What was happening in Fairbanks, Palmer and the rest of the
state is much more typical and had been much more typical.
SENATOR MILLER asked if for the last four years the philosophy in
Anchorage was to just get these cases off of the books any way
possible.
SHANNON HANLEY agreed that was pretty much the policy she saw when
she arrived in Anchorage in 1991. The goal was to negotiate the
cases and have them resolved by negotiation as opposed to trial.
At least part of it started out because the office was in turmoil
in 1991 in terms of there were a greatly reduced number of
attorneys that year. That policy was continued because new
attorneys were being trained and, at some point, the policy was in
effect because there were only three attorneys handling every
felony that came into the office.
KEN GOLDMAN added that there were major differences in the
Fairbanks system and one of the major differences was a tighter
management control. In the Anchorage office in 1991 there was much
more concern about media publicity and looking good. He said they
have brought a lot of changes to the office and they are constantly
refining the system. He said unfortunately it takes cases like Mr.
Franklin, who squeaked through the system and whose case is an
anomaly, to show you where to modify and where to refine. He said
his bottom line is to take back control and look more at what is
happening. Not that he hasn't been, but the sheer volume in the
Anchorage office makes it such that he can't have the same control
he had in Palmer or is exercised in Fairbanks where there are
lesser cases.
Number 185
SENATOR TAYLOR, referring to the Franklin case, said it appears
that this man received special courtesy and special treatment
because he violated the law at another field. He was using illegal
drugs and because he has a habit of misusing and using illegal
drugs, he ends up with a sentence where he is told to go clean up
his act. He asked what they do with a guy that isn't using drugs.
KEN GOLDMAN responded that Mr. Franklin got 90 days in jail as part
of his agreement. He said it is possible that individual
prosecutors would have asked for a lot more time in jail and that
he get a conviction of record, but part of the problem with the
process is that the bulk of the people that they see have substance
abuse problems. The goal that the court is always jamming down the
prosecutors throats is rehabilitation.
LAURIE OTTO said people who have cocaine problems in addition to
the crimes that they commit, in general, are treated more partially
than people who don't. However, she said she disagrees with how
the Franklin case was handled, and no longer in Anchorage are they
going to agree to SIS's on robbery II. They have fixed the problem
by prohibiting, as a matter of policy, prosecutors from agreeing to
an SIS in robbery II cases, and to make sure that this is enforced
they are requiring any agreements to be run by the unit supervisor
and, in serious cases, by the district attorney.
Number 265
SENATOR TAYLOR asked how they intend on using Rule 11 in the future
with judges.
LAURIE OTTO explained that a Rule 11 agreement is one where there
is a sentence agreement between the state and a defendant. That
goes before the judge and the judge has the authority to either
accept or reject the agreement. There are two kinds of SIS's that
they do: one where the state agrees to a specific sentence and the
other where the state agrees that a person get a suspended
imposition of sentence. She said she doesn't like sentence deals
and that they should only be done in rare cases.
KEN GOLDMAN said in most cases he is opposed to sentence deals, and
it is his theory that is what the judge was elected to do, but the
reality of the Rule 11 program is that 25 to 30 percent of the
felony cases are resolved this way.
SHANNON HANLEY noted that in the past, judges have declined to take
some of their Rule 11 agreements, and, when that has happened,
often times those cases go to trial or are renegotiated in some
manner to make it more palatable to the judge. The sheer volume of
the cases that they had in Anchorage is the reason why they went to
the Rule 11 program.
Number 375
LAURIE OTTO directed attention to a chart with statistics on what
is happening in Anchorage since Mr. Goldman has taken over as
district attorney for the Anchorage office. In 1995 it shows a
doubling of the cases that are going to grand jury as a result of
not doing deals.
Ms. Otto pointed out that the number of district attorneys has gone
down slightly in the last couple of years, but comparatively, there
has been a gigantic jump in the number of cases coming into the
office. She believes the biggest problem in our criminal justice
system right now is underfunding and it is system wide, not just in
the DA's office. She emphasized that in order to make the criminal
justice system work, the legislature has to provide the money for
prosecutors, public defenders, judges and jails. She also spoke to
the impact that new laws passed by the legislature without adequate
funding have on the system.
Number 485
SENATOR TAYLOR commented that if the Mr. Franklins of this world
had been kept in jail they would not have committed the subsequent
felonies that we are seeing. However, he believes the only answer
is not just throwing more money into the system; a lot of it may
have to do with attitude and philosophy within the department.
Number 540
ROBERT BUNDY, U.S. Attorney for the District of Alaska and a former
assistant district attorney in the Anchorage office, said those two
offices work closely together. It has been his perception that
over the last four to five months the state is taking more cases
and proceeding with felony charges. There are a lot of federal
mandatory minimums in place with regard to possession of firearms,
drug cases and others that depend on a prior felony conviction, be
it state or federal, so when people were give misdemeanors,
sometimes that made it tough. He has seen that policy in the DA's
office change so that they more reliably will have a felony
conviction.
Number 615
SENATOR TAYLOR pointed out we often hear the words "plea bargain"
used and that plea bargain is the structuring of a sentence
agreement between the prosecutor and the defendant, but at least on
the plea bargain under Rule 11, the court, itself, has an
opportunity to either accept or reject. He said when we see the
charge bargaining that was so graphically illustrated as a
guideline going on in the Anchorage area, the judge has no control
over that.
TAPE 95-36, SIDE A
Number 001
JOHN SALEMI, Director, Alaska Public Defender Agency, said the
agency represents individuals who are accused of crimes, and those
people are interested in getting strong and competent legal
representation. In the context of plea bargaining, the agency's
role is to negotiate with the district attorney if it is the kind
of case where there is the possibility of a negotiated disposition
and to do their best, given the facts at hand, to reach a fair and
favorable result for their client if they can. However, the agency
does not make decisions about plea bargains; they only communicate
the tenor of the negotiations and the result of their negotiations.
Mr. Salemi related that the way that plea bargaining and charge
bargaining occurs in Alaska is very restrictive when compared to
other jurisdictions. Also, in comparing what is going on in other
markets to what is happening in Alaska you find that the people
that are sentenced to do jail time do jail time, and the state has
significant restrictions with respect to parole eligibility.
Mr. Salemi said that although the Franklin case has been
characterized as an anomaly, he thinks it is now serving a useful
purpose because the scrutiny that is now being given to the system
is healthy and it will be helpful.
Mr. Salemi noted that the agency is seeing a tightening up of the
screening policy of the DA's office in Anchorage. They are taking
a tougher look at serious felony cases and they are reluctant to
make reductions which may have been offered in the past.
Number 100
KEVIN O'LEARY, Chief of Police, Municipality of Anchorage, directed
attention to a graph entitled "Uniform Crime Reports" giving
numbers on the reported felony cases investigated by the members of
the Anchorage Police Department. He pointed out that the volume of
crimes in Anchorage is significant and it has gone up since 1990
with the increase in population.
Chief O'Leary related that prior to making the changes that have
occurred in the district attorneys office, which the department
supports, Mr. Goldman took a lot of time to meet with police staff
and to educate the commanders, street officers and detectives on
the changes they were planning on making, as well as taking
feedback from them. Prior to these changes, there was a high
degree of frustration among officers who worked cases and are very
skilled at what they do. When they would take a good solid case in
and it would disappear.
Chief O'Leary also spoke to the need for more funding for the
criminal justice system, as well as more interagency cooperation.
Concluding, Chief O'Leary stated the biggest concern he has with
respect to the criminal justice system is with the Department of
Corrections. He expressed his appreciation that the legislature
put some money back into the department because it one of the
biggest problems the state has.
Number 150
SENATOR TAYLOR spoke to his concern with the dramatic increase in
stolen vehicles in the Anchorage area, especially by juveniles, and
the fact that the juvenile justice system is not working. CHIEF
O'LEARY agreed it is big problem, and he related that the penalties
for the offenders don't come from the juvenile justice system, but,
instead, from the school districts with suspensions from school.
SENATOR TAYLOR asked Chief O'Leary for his comments on whether or
not the Cleary decision is working. CHIEF O'LEARY responded that
it clearly has an impact on corrections. They are under sanctions
to the state to keep the inmate level at a certain level, and if
they go above that cap, then they are being fined. It has an
impact, systematically, on the magistrates, because when they have
a individual before them, most often that individual is released to
a third party or under their recognizance because of overcrowding
in the jails. It has an impact on the police department in terms
of their ability to place prisoners, as well as non-criminal
committals which are the inebriate problems, because there is no
facility in Anchorage that addresses that problem. He said it is
working from the perspective that it is limiting the number of
people that can be placed in the prisons, but it does create a very
serious system-wide problem. He also said he believes that the
Cleary decision needs to be revisited.
Number 300
MIKE WILLIAMS, Business Advisor for Chugach Alaska Corporation,
said Chugach has been working with Corrections Corporation of
America, which has the ability to finance, design, build and
operate correction facilities. He said Chugach Corporation has
talked to the administration and the Municipality of Anchorage to
let them know that there are private corporations out there who are
willing and able to fill any gap, which they believe will be at a
lower cost.
Number 355
JANICE LIENHART, representing Victims For Justice, stated she has
been impressed with the District Attorneys Office taking time to
listen to the victims when they have done plea bargaining, and she
sees this being done more and more. However, in working with the
victims of crime, she finds that the system, because of money, is
impairing public safety because there isn't the money to
incarcerate criminals. The laws are being redefined so that we are
letting more dangerous people on the street, so we are constantly
seeing more and more people victimized. She believes the problem
starts in the juvenile system, and she suggested that until we
start again being proactive and making kids accountable for their
actions, there will never be enough prisons.
Number 430
SENATOR GREEN commented that one of the things that the Health,
Education and Social Services wants to look at is the role of
parents' parental rights and how that has literally turned around
behaviors.
Number 500
BRANT MCGEE, Director, Office of Public Advocacy, said he thinks it
is ironic that DA's office is being criticized for plea bargaining,
although he thinks that office can be justly criticized for the
result in the Franklin case, which he attributed to human error.
He said it is unfair to criticize the DA's office because of a
failure involving a systemic problem regarding plea and charge
bargaining, especially where there is dramatic evidence that plea
and charge bargaining has been tightened up during the past six
months. He added that charge bargaining is far more difficult to
achieve for defense attorneys and the plea bargains are nearly
impossible to achieve for defense attorneys in Anchorage.
Mr. McGee said since Mr. Goldman has implemented some policy
changes in the DA's office, the Office of Public Advocacy has seen
a substantial increase in trials, and it is far more common for
cases to go to trial than it was six months ago. He believes the
office is being run much better since Mr. Goldman has taken over,
although he disagrees with a number of his policies.
TAPE 95-36, SIDE B
Number 075
SENATOR TAYLOR asked Ms. Otto is she would recommend taking every
step possible to overturn and rewrite Cleary. LAURIE OTTO
responded that Cleary is a order of the court, it is not an
agreement at this point. The Executive Branch is obligated to
comply with the court order that is entered in Cleary. There are
circumstances under which the Supreme Court allows the state to
argue changed circumstances as a way of getting out from under
consent decrees, but they are very limited. She said it may be
that the legislature is interested in looking at these things, but
the Executive Branch, by the terms of the order, is bound to follow
it or else they will be held in contempt.
SENATOR TAYLOR said if we can't find opportunities to challenge it
through the court system, then maybe it should be done through the
legislative system. He asked Ms. Otto if she would work towards
that and encourage the legislature to do so. LAURIE OTTO answered
that she was sure that they would work with the legislature
consistent with what they believe is the best corrections policy
and what they are able to do without being contemptuous and
violating their obligation to comply with an existing court order.
Number 300
[THE COMMITTEE RECESSED FOR LUNCH AND CAME BACK TO ORDER AT
APPROXIMATELY 1:30 P.M.]
DR. TERESA OBERMEYER of Anchorage spoke to various frustrations she
has with the legal system at the state and federal levels. SENATOR
TAYLOR reminded her that the purpose of the meeting was to get
public comment on charge bargaining and plea bargaining.
There being no further witnesses to appear before the committee,
SENATOR TAYLOR adjourned the meeting at 1:45 p.m.
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