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