02/04/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 88 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
| += | SB 56 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 4, 2005
1:15 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative John Coghill
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."
- MOVED HCS CSSB 56(JUD) OUT OF COMMITTEE
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 2/7/05
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 2/7/05
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
02/02/05 (H) Heard & Held
02/02/05 (H) MINUTE(JUD)
02/04/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOSHUA FINK, Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to SB 56.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to SB 56.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to SB 56.
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
proposed amendments to SB 56.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:15:44 PM. Representatives
Dahlstrom, Gara, Gruenberg, Anderson, Kott, and McGuire were
present at the call to order. Representative Coghill was
excused.
SB 56 - CRIMINAL LAW/PROCEDURE/SENTENCING
1:16:23 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." [CSSB 56(JUD) had been
amended twice on 1/31/05, and the question of whether to adopt a
proposed Amendment 3 was left pending on 2/2/05.]
CHAIR McGUIRE asked Representative Gara to withdraw 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"
1:17:02 PM
REPRESENTATIVE GARA withdrew Amendment 3.
1:17:20 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 4, which
read [original punctuation provided]:
Section 7 of the bill should be deleted and replaced
with the following:
* Sec. 7. AS 12.55.120 is amended by adding a new
subsection to read:
(e) A sentence within an applicable presumptive range
set out in AS 12.55.125, or a consecutive or partially
consecutive sentence imposed in accordance with the
minimum sentences set out in AS 12.55.127, may not be
appealed to the court of appeals under this section or
AS 22.07.020 on the ground that the sentence is
excessive. However, such a sentence may be reviewed
by the supreme court on the grounds that it is
excessive through a petition filed under rules adopted
by the supreme court.
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA explained that Amendment 4 would leave the
current findings provisions of law as is, and would provide the
supreme court the discretion, through petition, to review
sentences on the grounds that they are excessive. He indicated
that if Amendment 4 is adopted, he would be amenable to
considering alternative language that accomplishes the same
things.
1:18:49 PM
CHAIR McGUIRE relayed that she and Representative Gara have been
working together with others on Amendment 4 and arrived at a
proactive approach, to say that the supreme court, rather than
the court of appeals, may accept a petition based on an appeal
of excessiveness.
CHAIR McGUIRE withdrew her objection.
REPRESENTATIVE GRUENBERG indicated that he had questions.
1:19:52 PM
REPRESENTATIVE GARA said that the language in Amendment 4
appears to do what he and Chair McGuire want it to do, which is
to leave the discretionary review authority with the supreme
court instead of with the court of appeals. He added that he
and Chair McGuire feel that the Alaska Supreme Court already has
this discretionary review authority, but if that court feels
that it does not currently have that authority, Amendment 4 will
clarify that it does.
REPRESENTATIVE GRUENBERG said he objects to Amendment 4, and
offered his belief that it will merely create an additional step
in the process without changing the outcome of any cases.
REPRESENTATIVE GARA asked for clarification.
1:22:32 PM
REPRESENTATIVE GRUENBERG said that if what is wanted is a
prohibition against any court reversing on the grounds of
excessiveness, such cannot be done, because the Alaska Supreme
Court, via a petition for review, always has the authority to
review sentences.
CHAIR McGUIRE pointed out, however, that she and Representative
Gara want to ensure that the Alaska Supreme Court does have that
authority, that they want what Representative Gruenberg has just
described to occur, which is for the Alaska Supreme Court to
accept petitions for review of sentences that are claimed to be
excessive.
REPRESENTATIVE GRUENBERG opined that Amendment 4 does not
accomplish that goal, that it will have the opposite effect.
CHAIR McGUIRE disagreed.
1:25:39 PM
REPRESENTATIVE ANDERSON offered his belief that Amendment 4 will
limit the number of appeals.
REPRESENTATIVE GRUENBERG, after further review of Amendment 4,
concurred that it will force defendants to use the Alaska
Supreme Court petition process.
1:27:44 PM
REPRESENTATIVE GARA pointed out that the Alaska Supreme Court
has the right to review what the Alaska Court of Appeals does,
but does so only a few times a year. He said that ideally what
he wanted to do was to say that the discretionary review would
be done by the Alaska Court of Appeals and not the Alaska
Supreme Court. However, according to the [Alaska State]
Constitution, the Alaska Supreme Court still has the authority
to conduct an additional review afterward, and thus he didn't
feel that he could get consensus from the committee to change
Section 7 as he would prefer; Amendment 4 seeks to build
consensus.
REPRESENTATIVE GRUENBERG said he'd be more comfortable having
the language in Section 7 reflect Representative Gara's ideal
concept because it would be more efficient, though they might
have to amend a court rule.
CHAIR McGUIRE said that there is a concern that by instituting
the presumptive ranges as proposed via SB 56, the Alaska Court
of Appeals will be overrun with appeals regarding sentence
length. She characterized such as transforming the court of
appeals into a sentencing court. In response to comments, she
suggested that the committee conclude its discussion of
Amendment 4.
REPRESENTATIVE ANDERSON offered his belief that Amendment 4 will
prevent excessive appeals, will allow scrutiny via the petition
process, and will afford due process.
1:32:28 PM
A roll call vote was taken. Representatives Kott, Dahlstrom,
Gara, Anderson, and McGuire voted in favor of Amendment 4.
Representative Gruenberg voted against it. Therefore, Amendment
4 was adopted by a vote of 5-1.
1:33:10 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 5,
labeled 24-LS0308\L.5, Luckhaupt, 2/1/05, which read:
Page 17, line 1, following "behavior":
Insert ";
(17) the defendant, at the time of
sentencing, is actively participating in or has
successfully completed treatment that is relevant to
the offense and that was begun after the offense was
committed"
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GRUENBERG relayed that the concept of Amendment 5
was suggested by the Office of Public Advocacy (OPA), to provide
a mitigating factor if a defendant, at the time of sentencing,
is actively participating in or has successfully completed
treatment relevant to the offense and that treatment began after
the offense was committed. Amendment 5 will encourage people to
actively and in good faith participate in treatment.
Consideration of this mitigating factor will be optional, not
mandatory.
REPRESENTATIVE ANDERSON surmised that the mitigator proposed via
Amendment 5 won't ever be applied in situations where the
defendant is indigent, because treatment is costly, and
therefore this proposed mitigator will only be applied in cases
where the defendant can afford to pay for treatment before
sentencing.
JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), pointed out,
however, that there are a lot of programs that indigent
defendants can participate in and thereby qualify for
consideration of this proposed mitigator.
REPRESENTATIVE GARA said he agrees with Representative Anderson
in concept, but supports Amendment 5 nonetheless. On the issue
of treatment, he offered his belief that not enough is being
done in that regard, that a lot of programs have suffered as a
result of legislative budget cuts, and characterized this trend
as the wrong way to go; if a person is willing to receive
treatment, it shouldn't matter whether he/she has money. He
opined that [alcoholism/drug abuse] is one of the biggest
problems the state faces, that it's one of the reasons there are
so many prisoners in state facilities, and that it's one of the
reasons for the state's high incidence of family abuse; "to save
a couple of bucks by rolling back treatment programs for people
who can't afford them" is the wrong way to go, he reiterated.
1:37:27 PM
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 5. Representatives Kott, Dahlstrom,
Anderson, and McGuire voted against it. Therefore, Amendment 5
failed by a vote of 2-4.
1:38:07 PM
CHAIR McGUIRE referred to Amendment 6, which read [original
punctuation provided]:
Page 17, line 1, following "behavior":
Insert ";
(17) the defendant committed the offense
while suffering from a mental disorder or disability,
including fetal alcohol spectrum disorder, that was
insufficient to constitute a complete defense, but
that significantly affected the defendant's conduct"
CHAIR McGUIRE noted that Amendment 6 proposes a mitigator based
on the fact that the defendant committed the offense while
suffering from a mental disorder or disability, including fetal
alcohol spectrum disorder (FASD).
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GRUENBERG explained that the concept of Amendment
6 was suggested by the OPA, and that the term "mental disorder"
was suggested by the Alaska Mental Health Trust Authority
(AMHTA). He remarked that there is a constitutional question
regarding whether people suffering from the conditions referred
to in Amendment 6 can, constitutionally, receive the same
punishment as those who do not suffer from such conditions.
Amendment 6 will allow the court to consider such conditions as
a mitigating factor when determining a sentence.
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), in response to
questions, explained that fetal alcohol spectrum disorder (FASD)
is the term currently used to describe what was once known as
fetal alcohol syndrome (FAS) and includes a range of similar
diagnoses.
REPRESENTATIVE ANDERSON used examples to point out that the
victim won't care if the defendant has a mental disorder.
Therefore, the question becomes one of how much latitude should
be afforded to those who commit crimes against a person. He
said he would reject amendment 6 for that reason.
1:41:31 PM
CHAIR McGUIRE asked Representative Gruenberg whether he would be
amenable to amending Amendment 6 to say, "the defendant has
committed an offense other than an offense under [AS] 11.41".
REPRESENTATIVE GRUENBERG said yes.
REPRESENTATIVE ANDERSON said, "Or arson."
CHAIR McGUIRE made a motion to amend to Amendment 6 such that it
would contain the language, "the defendant has committed an
offense other than an offense under [AS] 11.41 or arson".
REPRESENTATIVE GRUENBERG suggested making the amendment to
Amendment 6 a conceptual amendment.
CHAIR McGUIRE indicated that the question of whether to adopt
Amendment 6, as amended, was before the committee.
REPRESENTATIVE ANDERSON removed his objection to Amendment 6, as
amended.
CHAIR McGUIRE asked whether there were any further objections.
There being none, Amendment 6, as amended, was adopted.
1:42:46 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 7,
labeled 24-LS0308\L.4, Luckhaupt, 2/1/04, which read:
Page 2, lines 5 - 6:
Delete "an employment obligation of the defendant
preexisted sentencing"
Insert "the defendant has an employment
obligation"
REPRESENTATIVE GRUENBERG recalled that Sidney K. Billingslea,
Alaska Academy Of Trial Lawyers (AATL), suggested that the
current language should be changed because the employment
obligation could be periodic or could occur at the time of
sentencing or afterward, so the court should have the discretion
to allow periodic sentencing if it determines that such is
necessary.
REPRESENTATIVE ANDERSON objected. He opined that Amendment 7
will lead to uncertainty, that the Department of Corrections
(DOC) won't approve of it, and that the legislature shouldn't
give defendants that much latitude. He suggested that they keep
the language in the bill as is.
1:45:28 PM
REPRESENTATIVE GARA posited that the provision on page 2, lines
5-7, is only there because people assume that the courts are
doing something that they're not. He said that he has a problem
with the provision Amendment 7 would change, because it's very
rare for the court to allow someone to leave jail in order to go
to work. He offered his belief that the only time it's used is
in situations where not using it could cause a family to go on
public assistance or become homeless, and so the courts will let
someone out only on very stringent conditions and with a third
party custodian. The current language in the bill will take
away the court's discretion to help keep families together, he
opined, and said he would prefer to just delete that provision
of the bill entirely.
1:47:48 PM
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), relayed that periodic
sentencing was a serious problem for the DOC, but was partially
fixed via the 2002 Alaska Court of Appeals' ruling in State v.
Felix. She offered an example of an offender who was booked in
and out of jail every weekend so that he could work during the
week. Periodic sentencing is very time intensive and requires a
lot of manpower, and the court realized this and so limited its
use quite a bit. However, there are still instances where
judges are ignoring the Felix decision, and the people they are
releasing are not being supervised at all, either by third party
custodians or otherwise. This results in offenders being
treated differently, and creates a serious management problem.
So even though periodic sentences are only being imposed 2-10
times a year now, it still creates public safety problems and
puts a burden on the DOC.
1:50:08 PM
REPRESENTATIVE GARA offered his belief that the language in the
bill only affects those that are to be incarcerated for more
than two years. He indicated a reluctance to accept the
language in the bill just because the DOC is experiencing a
management problem; rather, a determining factor for him would
be whether the discretion to impose periodic sentences is being
significantly abused.
CHAIR McGUIRE said she thought that the language in bill that
Amendment 7 proposes to change is merely codifying the Felix
decision.
1:51:30 PM
SUSAN PARKES, Deputy Attorney General, Criminal Division, Office
of the Attorney General, Department of Law (DOL), offered her
belief that [Section 2] does codify the Felix decision, but the
stipulation that periodic sentencing be imposed only on those
who've been sentenced for not more than two years was added in
the Senate. She said there are instances of [abuse of] this
court-ordered furlough; for example, one of the reasons used
recently was for a dental appointment because the prisoner
didn't feel she was getting adequate dental care in the DOC
facility. Having the Felix decision codified in statute as
currently proposed in the bill will be very helpful to both the
DOC and the DOL, she opined, particularly given that it will
most likely only be applied to those convicted of a lesser
crime.
1:54:42 PM
REPRESENTATIVE GRUENBERG argued that Amendment 7 attempts to
make the language in the bill more reasonable in the few cases
that periodic sentencing is granted. He offered his belief that
the language being added via page 2, lines 5-7, could
potentially create significant equal protection problems,
particularly in Bush areas of the state, because it will create
two classes of citizens.
1:56:18 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Amendment 7. Representatives Anderson, Kott,
Dahlstrom, and McGuire voted against it. Therefore, Amendment 7
failed by a vote of 2-4.
1:57:01 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 8,
labeled 24-LS0308\L.2, Luckhaupt, 2/1/05, which, along with an
attached reasoning statement from the PDA [original punctuation
provided], read:
Page 1, lines 4 - 7:
Delete all material.
Renumber the following bill sections accordingly.
Page 24, line 4:
Delete "Sections 1, 4, 6, 26, and 29 - 31"
Insert "Sections 3, 5, 25, and 28 - 30"
Page 24, lines 5 - 6:
Delete "Sections 2, 3, 5, 7 - 25, and 27-28"
Insert "Sections 1, 2, 4, 6 - 24, 26, and 27"
Page 24, line 7:
Delete "secs. 8 - 21"
Insert "secs. 7 - 20"
REASONING:
Section 1 of the bill is unconstitutional
because it seeks to eliminate the right to indictment
by the grand jury of an aggravating factor that
essentially becomes an element of the crime charged.
Article I, Section 8 of the Alaska Constitution: No
person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury.
In Blakely the U.S. Supreme Court required
that its ruling in Apprendi be applied, that any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt. The
prescribed statutory maximum is the maximum a judge
may impose based solely on the facts reflected in the
jury verdict or admitted by the defendant. Justice
Scalia in his majority opinion reminded that "the
Constitution limits States' authority to reclassify
elements as sentencing factors.." 124 S.Ct. 2531,
2537, fn. 6. He also reiterated the point made by J.
Bishop in a treatise that "every fact which is
legally essential to the punishment" must be charged
in the indictment and proved to the jury. 124 S.Ct.
at 2536, fn. 5. Justice Scalia criticized the
challenged practice of labeling elements as sentencing
factors as a regime "in which the defendant, with no
warning in either his indictment or plea, would
routinely see his maximum potential sentence balloon
from as little as five years to as much as life
imprisonment." 124 S.Ct. at 2542.
In Alaska our Supreme Court in State v.
Malloy, 46 P.3d 949 (Alaska 2002) upheld the Court of
Appeals' pre-Apprendi view in its earlier opinion in
the case, based on Donlun v. State, 527 P.2d 472
(Alaska 1974), that general principles of fairness and
notice, grounded in our constitutional guarantees of
due process, right to trial by jury, and the guarantee
of grand jury indictment, require that aggravated
circumstances that provide for increased punishment be
set forth in the indictment and proven at trial. 46
P.3d at 952. The Supreme Court stated: "Donlun
accurately presaged Apprendi's holding that
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." 46 P.3d at 954.
Eliminating the need to present an
aggravating factor to a grand jury is unconstitutional
because it violates a defendant's constitutional right
to grand jury indictment for what is essentially an
element of the charged offense.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GRUENBERG explained that Amendment 8 would delete
Section 1 of the bill and make conforming changes; offered his
belief that Amendment 8 is constitutionally based; and read from
two handouts he said were from the U.S. Supreme Court case,
Blakely v. Washington, and the Alaska Supreme Court case, Malloy
v. State, to illustrate that every fact which is legally
essential to the punishment must be charged in the indictment
and proved to a jury, and that there must be a warning in either
the indictment or the plea regarding what the ultimate sentence
will be.
REPRESENTATIVE GRUENBERG went on to note that in the Malloy
case, the Alaska Supreme Court case, Donlun v. State, was
discussed and interpreted to mean that Alaska's guarantee of
grand jury indictment derives from Article I, Section 8, of the
Alaska State Constitution and requires that the charging
document specify the pertinent aggravating factors. He pointed
out that the Malloy decision recognized, via the Donlun case,
that the U.S. Supreme Court case, Apprendi v. New Jersey, also
holds that facts must be charged 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. In conclusion, he offered his belief that it is
constitutionally required that if [the prosecution] is going to
seek an aggravating factor, that fact must be presented to the
grand jury and be contained in the indictment.
2:00:34 PM
REPRESENTATIVE ANDERSON offered his understanding that
currently, the state gives the defense attorney notice,
pretrial, of aggravating factors. He opined that Amendment 8
will change things such that aggravating factors must go to the
grand jury, and predicted that the DOL won't be in favor of such
a change. He offered an example using AS 12.55.155(d)(22) as
illustrative of how Amendment 8 would "harm the current system"
because the prosecution would have to go before a second grand
jury if additional aggravating factors are discovered, for
example, 10 days after the original grand jury indictment. With
regard to the purpose of grand jury indictments, he read as
follows from the "Notes to Decisions" - located in Volume 1 of
the Alaska Statutes published by the Alaska Legislative Counsel
and annotated and printed by LexisNexis - regarding Article I,
Section 8, of the Alaska State Constitution:
The purpose served by grand jury indictment is to give
one accused of a serious offense the benefit of having
private citizens judge whether there is a probable
cause to hold the accused for trial.
REPRESENTATIVE ANDERSON said he interpreted this note to mean
that if Amendment 8 passes, it would be giving the grand jury a
responsibility it was never intended to have.
MS. PARKES remarked that Representative Anderson has pointed out
the practical problem with Amendment 8, that of having to go
back to the grand jury every time an additional aggravating
factor is discovered; such a requirement would not result in an
efficient use of resources. She said she disagrees with
Representative Gruenberg that going before a grand jury is
clearly required. This is a question that will ultimately be
decided by the Alaska Court of Appeals and the Alaska Supreme
Court, she predicted, and clarified that the state is currently
taking aggravators to grand jury simply out of an abundance of
caution because it is not clear what judges would do during the
interim. The DOL does not believe that going before a grand
jury is constitutionally required, she relayed, and pointed out
that Donlun was decided before the current statutory scheme was
put into place. At the time of Donlun, crimes were not
differentiated by degrees; there were only the basic crimes, and
then aggravating factors were used to determine what range
sentences could be.
MS. PARKES opined that Donlun doesn't apply to the current
statutory scheme, and that Malloy doesn't support [the claim
that going before the grand jury] is necessarily
constitutionally required. She pointed out that Malloy dealt
with aggravating factors that increased the mandatory minimum
sentences, and noted that the state prevailed in that case,
which held that if there is a range of sentences and there's a
minimum sentence, then the judge has the discretion to make the
findings; thus Malloy is distinguishable from the situation
being discussed. She said that it is important to first look at
the fact that many states don't have a grand jury, and opined
that Blakely won't require such states to create a grand jury;
therefore, just because a state does have a grand jury, it
doesn't logically follow that that state would be
constitutionally required to indict on aggravators. She
surmised that each state will be allowed to make the decision of
how it wants to use a grand jury if it has one.
MS. PARKES said that the important issue is whether notice is
being given to the defendant, and the bill does provide for
that. She offered her belief that the notice provision in the
bill will be found to be constitutional, and relayed her
preference for having that issue decided by the courts. From a
public policy point of view, she opined, having aggravators go
to the grand jury doesn't make sense.
2:10:07 PM
REPRESENTATIVE GARA asked where that notice provision is
located.
MS. PARKES indicated that the notice provision is contained in
Section 21, subsection (f)(2), and says in part:
written notice of the intent to establish a factor in
aggravation must be served on the defendant and filed
with the court
(A) 10 days before trial, or at another
time specified by the court;
(B) within 48 hours, or at a time specified
by the court, if the court instructs the jury about
the option to return a verdict for a lesser included
offense; or
(C) five days before entering a plea that
results in a finding of guilt, or at another time
specified by the court.
REPRESENTATIVE GARA offered his belief that it is incumbent on
those who are changing the law to come up with a proper
proposal; that to spring an aggravator on someone 10 days before
trial is unfair; and that if the language provides for either 10
days or another period of time specified by the court, it will
effectively result in notice being given 10 days prior to trial.
2:12:37 PM
REPRESENTATIVE GRUENBERG remarked that it may always happen that
a fact becomes known after the initial indictment and thus lead
to another charge. This is not a big deal, he opined, because
the grand jury is already sitting, and it is not uncommon for
the state to bring that other charge to the grand jury so that
it can be melded in for the trial, and the case then proceeds to
trial. Such additions are not much of a burden, particularly
given that the prosecution has the discretion to decide whether
pursuing additional charges will be worth the effort. He then
referred to a recent memorandum from the Alaska Judicial Council
(AJC) - dated February 3, 2005 - and offered his understanding
that it indicates that only 2.5 percent of all cases involve
aggravators. He opined that Donlun and Blakely are secondary to
Malloy.
2:15:50 PM
REPRESENTATIVE GRUENBERG read the following from the Malloy
decision:
This holding, directly binding on states under the
Fourteenth Amendment, lays to rest any controversy
over the accuracy of the court of appeals's view that
Donlun is grounded on constitutional principles. The
court of appeals's explanation of Donlun's state
constitutional roots accords with Apprendi. And as
the state now recognizes, Donlun accurately presaged
Apprendi's holding that aggravating facts must be
charged 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.
REPRESENTATIVE GRUENBERG offered his belief that Section 1 says
that an indictment need not specify aggravating factors. He
asked Ms. Parkes whether the issue of indictment is currently
being appealed by the state.
MS. PARKES relayed that the state has petitioned the Alaska
Court of Appeals for a ruling on that issue.
REPRESENTATIVE GRUENBERG said he would be amenable to altering
Section 1 of the bill such that it is effective if and only if
the Alaska Court of Appeals or the Alaska Supreme Court holds
that the indictment is not constitutionally required; in other
words, to put a conditional effective date on Section 1. Such a
change would deal with both his concern and the constitutional
issue, he opined.
MS. PARKES said that her concern with such a change is that it
could be years before a ruling comes forth or that the Alaska
Court of Appeals could decide not to make a ruling in this
particular case; therefore, the legislature should go ahead and
make the call on this issue.
REPRESENTATIVE GRUENBERG, in conclusion, reiterated his belief
that the language in Malloy on this issue is quite clear.
2:19:54 PM
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 8. Representatives Anderson, Kott,
Dahlstrom, and McGuire voted against it. Therefore, Amendment 8
failed by a vote of 2-4.
REPRESENTATIVE GARA made a motion to adopt Amendment 8A, to
change, on page 17, line 26, "10" to "30". This would result in
written notice of aggravating factors being given 30 days prior
to trial.
REPRESENTATIVE ANDERSON objected for the purpose of discussion.
2:21:49 PM
MS. PARKES asked for clarification regarding whether the
language "or at another time specified by the court" would
remain in Section 21. She said the DOL's concern is that it
doesn't want to be precluded from being able to give notice of
facts that are discovered late. Noting that the DOL had picked
10 days because "that's currently how it is prior to sentencing,
she offered her belief that giving notice 30 days before trial
would not be an unreasonable requirement; however, she remarked,
20 days would probably be a good middle point.
CHAIR McGUIRE asked Representative Gara whether he would accept
that as friendly amendment to Amendment 8A.
REPRESENTATIVE GARA said he would not, adding that he considers
30 days to be fair amount of notice.
REPRESENTATIVE GARA, in response to questions, pointed out that
in any trial, the prosecution is allowed to charge a person, in
good faith, with a crime without necessarily having any
objective evidence that the person actually committed that
crime; the prosecutor might believe that he/she can prove the
person committed the crime or that the person did commit the
crime, but may not have any documentary evidence or testimony.
So a person being charged with a crime won't necessarily know
that an aggravating factor will be brought forth. He remarked:
We often approach these criminal bills from the
perspective of the defendants who are trying to get
away with things that they did that are bad. And my
experience as a criminal attorney is that most of the
cases where I defended people - and I didn't do it
very long, I did it for three months at the [Public
Defender Agency] - was that most of the people who
were charged did do something wrong, and [so] ... the
charges made sense. I will also say that in many of
the cases, people were charged well beyond the things
that they did. ... I remember a woman who was charged
with kidnapping who didn't engage in kidnapping - she
was providing a safe home for troubled kids. ... There
are times where the prosecution issues charges that
are overcharges or wrong charges, and I often ... look
at these bills with those cases in mind. ... And so
it's the overcharge situation that ... I'm worried
about.
2:29:06 PM
A roll call vote was taken. Representatives Kott, Gara, and
Gruenberg voted in favor of Amendment 8A. Representatives
Dahlstrom, Anderson, and McGuire voted against it. Therefore,
Amendment 8A failed by a vote of 3-3.
2:29:56 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 8B, to
change, on page 17, line 26, "10" to "20".
REPRESENTATIVE ANDERSON objected.
CHAIR McGUIRE asked Ms. Parkes to elaborate on her earlier
comment regarding why the DOL originally decided on a 10-day
notice provision.
MS. PARKES said that currently under the system that Blakely
says is unconstitutional, notice of either aggravating factors
or mitigating factors must be given 10 days prior to sentencing.
REPRESENTATIVE GARA offered his belief, however, that a
sentencing hearing is much easier to prepare for than a trial,
and that judges are more lenient with regard to the kinds of
evidence that can be presented at a sentencing hearing; thus a
10-day notice provision would not be suitable for a trial.
2:32:34 PM
A roll call vote was taken. Representatives Kott, Dahlstrom,
Gara, Gruenberg, and McGuire voted in favor of Amendment 8B.
Representative Anderson voted against it. Therefore, Amendment
8B was adopted by a vote of 5-1.
CHAIR McGUIRE said she supports Amendment 8B because the PDA,
much like the DOL, is overburdened and understaffed, and it is
incumbent upon [the state] to give people a fair trial.
2:33:57 PM
REPRESENTATIVE GRUENBERG referred to Amendment 9, labeled 24-
LS0308\L.3, Luckhaupt, 2/1/05, which, along with an attached
reasoning statement from the PDA [original punctuation
provided], read:
Page 19, lines 11 - 30:
Delete all material.
Renumber the following bill sections accordingly.
Page 23, lines 19 - 31:
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, and 28"
Page 24, lines 5 - 6:
Delete "Sections 2, 3, 5, 7 - 25, and 27 - 28"
Insert "Sections 2, 3, 5, 7 - 25, 26, and 27"
REASONING:
These sections of the bill seek to allow
police officers to detain and arrest probationers and
parolees, without being directed to do so by the
supervising probation or parole officer, based upon
their reasonable suspicion or probable cause to
believe that they have recently violated or are about
to violate a condition of probation or parole even
though the believed violation is not a crime in and of
itself, or one that creates an imminent public danger
or threatens serious harm to persons or property.
Article I, Section 14 of our state
constitution protects against unreasonable searches
and seizures. Article I, Section 22 protects our
right to privacy. In Roman v. State, 570 P.2d 1235
(Alaska 1977) our Supreme Court held as a matter of
Alaska Constitutional law that prisoners released on
parole have the same protections against government
searches and seizures as other citizens, except when
reasonably conducted searches and seizures are
performed by probation/parole officers, or police
officers acting under the direction of the
probation/parole officer. This constitutional ruling
was codified in AS 33.16.150(b)(3) that requires a
parolee to submit to reasonable searches and seizures
by a parole officer or a police officer acting under
the direction of a parole officer.
It would therefore be unconstitutional to
allow a police officer to detain or arrest a
parolee/probationer for a believed violation that did
not constitute an independent crime or if the officer
is not acting at the direction of the probation/parole
officer. That is exactly what these sections of the
bill seek to do, rendering them unconstitutional.
REPRESENTATIVE GRUENBERG explained that Amendment 9 would delete
Sections 26 and 30-31, and make conforming changes. These
sections would allow a police officer to arrest a
probationer/parolee on the basis of probable cause - for
violating a condition of probation/parole - without first
getting authorization from the person's probation/parole
officer. He recalled testimony from the PDA indicating that the
1977 Alaska Supreme Court case, Roman v. State, says that it is
constitutionally required that prisoners released on
probation/parole have the same protection against [unreasonable]
searches and seizures as other citizens.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 9.
REPRESENTATIVE ANDERSON objected.
2:36:07 PM
MS. WILSON, responding to a question, reminded members that
Sections 26 and 30-31 were included in SB 56 as a result of the
2004 Alaska Court of Appeals case, Reichel v. State.
REPRESENTATIVE GARA sought clarification that Sections 26 and
30-31 propose to give police officers the same authority, using
the same standards, to detain probationers/parolees as is
currently held only by probation/parole officers.
REPRESENTATIVE GRUENBERG concurred, reiterating that there is a
constitutionally based argument regarding whether such authority
can be given to police officers.
2:37:45 PM
MS. WILSON concurred as well, noting that an exception has been
carved out for probation/parole officers, but opined that that
exception does not extend to police officers; instead police
officers can only detain and arrest a probationer/parolee if
they do it at the direction of the person's probation/parole
officer. Thus the argument is that granting police officers
such authority runs afoul of the constitution.
2:38:50 PM
CHAIR McGUIRE recalled that there has been substantial debate on
Sections 26 and 30-31 during prior hearings.
REPRESENTATIVE KOTT asked Ms. Parkes to comment on the
constitutionality issue being raised.
MS. PARKES relayed that she has read both the Roman and Reichel
cases and recognizes that they do raise constitutional concerns.
She also acknowledged that there has been an exception carved
out for probation/parole officers to be able to enforce
conditions of probation/parole that are not normally crimes in
and of themselves. Sections 26 and 30-31 would give a police
officer the right to detain a person based on a reasonable
suspicion that he/she is violating an enumerated condition of
probation/parole; also, after detaining the person, if the
police officer has probable cause to suspect that the person is
in fact violating a condition, the police officer can arrest the
person.
MS. PARKES opined that this is not giving police the same
authority as probation/parole officers, since probation/parole
officers can perform unannounced searches and seizures in a
person's home. She said that the DOL believes that as a matter
of public policy, the legislature can, via statute, create a
special relationship, so to speak, between police officers and
probation/parole officers, thus giving police officers the
ability to assist in the enforcement of probation/parole
conditions, which are presumably in place to protect the public.
This relationship would not come from the constitution, she
remarked, noting that it doesn't provide for the current
exception regarding unreasonable searches and seizures by
probation/parole officers either. She opined that the adoption
of Sections 26 and 30-31 would constitute good public policy.
REPRESENTATIVE ANDERSON offered his understanding of the Reichel
case, and opined that it shouldn't matter that the defendant in
that case was arrested by a police officer instead of his
probation officer. The language in the bill will set it in
stone that violations of probation/parole conditions can be
dealt with by police officers as well as by probation/parole
officers.
2:44:15 PM
CHAIR McGUIRE relayed that there are concerns that certain
situations might involve police harassment, and remarked that
such situations should be avoided. She indicated that the
legislature wants to give people the opportunity to succeed, and
so a balance must be struck. She said she is swayed, however,
by the fact that an exception has already been carved out for
probation/parole officers, and so she supports [retaining
Sections 26 and 30-31] with the caveat that they stipulate a
standard of reasonable suspicion. In other words, she remarked,
she does not want to give police officers carte blanche to
harass probationers/parolees.
2:46:22 PM
A roll call vote was taken. Representative Gruenberg voted in
favor of Amendment 9. Representatives Dahlstrom, Gara,
Anderson, Kott, and McGuire voted against it. Therefore,
Amendment 9 failed by a vote of 1-5.
2:46:58 PM
REPRESENTATIVE GRUENBERG relayed that he has possession of two
other amendments suggested by the PDA, one of which read
[original punctuation provided]:
Page 4, line 24 delete "five to eight" and insert
"four to six".
Page 5, line 2 delete "seven to 11" and insert "six to
eight".
Page 5, line 10 delete "ten to 14" and insert "nine to
eleven".
Page 5, line 12 delete " 15 to 20" and insert "14 to
16".
Page 5, line 19 delete "one to three" and insert "six
months to two".
Page 5, line 21 delete "two to four" and insert "one
to three".
Page 5, line 22 delete "four to seven" and insert
"three to five".
Page 5, line 24 delete " six to 10" and insert "five
to seven".
Page 6, line 1 delete "zero to two" and insert "zero
to one".
Page 6, line 2 delete "two to four" and insert "one to
three".
Page 6, line 4 delete "three to five" and insert "two
to four".
Page 6, line 7 delete "one to two" and insert "zero to
two".
Page 6, line 22 delete "eight to 12" and insert "seven
to nine".
Page 6, line 26 delete "12 to 16" and insert "nine to
11".
Page 6, line 28 delete "15 to 20" and insert "14 to
16".
Page 6, line 30 delete "20 to 30" and insert "19 to
21".
Page 7, lines 1 and 2 delete "25 to 35" and insert "24
to 26".
Page 7, line 5 delete "30 to 40" and insert "29 to
31".
Page 7, line 12 delete "five to eight" and insert
"four to six".
Page 7, line 16 delete " 10 to 14" and insert "nine to
11".
Page 7, line 18 delete "12 to 16" and insert "nine to
11".
Page 7, line 20 delete "15 to 20" and insert "14 to
16".
Page 7, line 23 delete "15 to 25" and insert "14 to
16".
Page 7, line 26 delete "20 to 30" and insert "19 to
21".
Page 8, line 1 delete "two to four" and insert "one to
three".
Page 8, line 4 delete "five to eight" and insert "four
to six".
Page 8, line 7 delete " 10 to 14" and insert "nine to
11".
Page 8, line 9 delete "10 to 14" and insert "nine to
11".
Page 8, line 12 delete "15 to 20" and insert "14 to
16".
Page 8, line 20 delete "one to two" and insert "zero
to two".
Page 8, line 23 delete " two to five" and insert "one
to three".
Page 8, line 26 delete "three to six " and insert "two
to four".
Page 8, line 29 delete "three to six" and insert "two
to four".
Page 9, line 1 delete "six to 10" and insert "five to
seven".
[First amendment ends.]
and the other of which would make the following changes:
[Second amendment begins.]
Page 4, line 24, delete "eight" and insert "seven"
Page 5, line 2, delete "11" and insert "10"
Page 5, line 10, delete "14" and insert "13"
Page 5, line 12, delete "20" and insert "19"
Page 5, line 19, delete "three" and insert "two"
Page 5, line 21, delete "four" and insert "three"
Page 5, line 22, delete "seven" and insert "six"
Page 5, line 24, delete "10" and insert "nine"
Page 6, line 1, delete "two" and insert "one"
Page 6, line 2, delete "four" and insert "three"
Page 6, line 4, delete "five" and insert "four"
Page 6, line 7, delete "two" and insert "one and a
half"
Page 6, line 22, delete "12" and insert "11"
Page 6, line 26, delete "16" and insert "15"
Page 6, line 28, delete "20" and insert "19"
Page 6, line 30, delete "30" and insert "25"
Page 7, line 2, delete "35" and insert "30"
Page 7, line 5, delete "40" and insert "35"
Page 7, line 12, delete "eight" and insert "seven"
Page 7, line 16, delete "14" and insert "13"
Page 7, line 18, delete "16" and insert "15"
Page 7, line 20, delete "20" and insert "19"
Page 7, line 23, delete "25" and insert "20"
Page 7, line 26, delete "30" and insert "25"
Page 8, line 1, delete "four" and insert "three"
Page 8, line 4, delete "eight" and insert "seven"
Page 8, line 7, delete "14" and insert "13"
Page 8, line 9, delete "14" and insert "13"
Page 8, line 12, delete "20" and insert "19"
Page 8, line 20, delete "two" and insert "one and a
half"
Page 8, line 23, delete "five" and insert "four"
Page 8, line 26, delete "six" and insert "five"
Page 8, line 29, delete "six" and insert "five"
Page 9, line 1, delete "10" and insert "nine"
REPRESENTATIVE GRUENBERG asked the committee to first look at
the aforementioned AJC memorandum, and offered his understanding
that it indicates that passage of SB 56 as currently written
will result in those convicted of class B felonies individually
receiving 121 more days of incarceration, and will result in
those convicted of class C felonies individually receiving 202
more days of incarceration. He then noted that an e-mail he's
received from Ms. Parker indicates that the average prisoner-
per-day cost amounts to approximately $113 per day in 2004-2005,
and approximately $110 per day in 2005-2006. Referring back to
the AJC memorandum, specifically a chart on page 3, he surmised
that approximately 287 cases out of 11,271 cases will involve
aggravating factors, and that the remaining cases will be
subject to the ranges proposed in SB 56. This could possibly
result in each of the defendants in those remaining cases being
subject to the aforementioned increases in days of
incarceration, thereby incurring the aforementioned costs per
day for those extended periods of time.
2:50:36 PM
REPRESENTATIVE GRUENBERG gave an example of how each amendment
would alter the proposed sentencing ranges, and said he would be
willing to offer either amendment as Amendment 10 if there were
support.
REPRESENTATIVE ANDERSON said he objects to both amendments
because he thinks they would be better addressed in the House
Finance Committee and because he agrees with the ranges as
currently proposed in the bill.
2:54:55 PM
REPRESENTATIVE GARA distributed an amendment - created by
Representative Berkowitz - that he said might allow SB 56 to
address a problem with the current ethics law, and said that
although he would not be offering the amendment at this time, he
wanted members to consider the language contained in it so that
they might discuss it when the bill is heard on the House floor;
the amendment read [original punctuation provided]:
AS 11.56.850 is amended to read:
(a) A public servant commits the crime of
official misconduct if, with intent to obtain a
benefit or to injure or deprive another person of
a benefit, the public servant
(1) performs an act relating to the public
servant's office but constituting an
unauthorized exercise of the public
servant's official functions, knowing that
that act is unauthorized; [OR]
(2) knowingly refrains from performing a
duty which is imposed upon the public
servant by law or is clearly inherent in the
nature of the public servant's office; or
(3) knowingly takes or withholds official
action in order to affect a matter in which
the public servant has a substantial
interest.
(b) Official misconduct is a class A
misdemeanor.
AS 11.81.900 is amended by adding the following:
"official action" means a recommendation, decision,
approval, disapproval, vote, or other similar action,
including inaction, by a public servant;
"substantial interest" means any sole
proprietorship, partnership, firm, corporation,
trust or other entity through which business for
profit or not for profit is conducted in which
the public servant or the public servant's spouse
is
(1) an officer, director, trustee, partner,
employee, or holds a position of management;
or
(2) a holder of stock exceeding $5,000 or 1%
of any business, whichever is less;
REPRESENTATIVE KOTT, turning the committee's attention to the
letter of intent that the Senate sent over with SB 56, asked Ms.
Parkes if the DOL has a position regarding whether to include
the language contained in the letter as a section of the bill.
MS. PARKES said that the DOL supports the language in the letter
of intent, and suggested that the House may wish to adopt it as
well.
REPRESENTATIVE KOTT offered his understanding that the language
in the letter of intent was going to be inserted as a section of
the bill. He said he would rather see that language as part of
the SB 56.
MS. PARKES, noting that the Senate decided to use a letter of
intent, acknowledged that the House might choose to do
otherwise.
2:57:40 PM
REPRESENTATIVE ANDERSON opined that a letter of intent would be
sufficient to guide the judicial branch.
REPRESENTATIVE GRUENBERG opined that judges don't see letters of
intent, and so having the intent language in the bill would at
least make it part of the uncodified law of the state.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment [11],
to put the language contained in the letter of intent in the
bill as an intent section; Amendment [11] read [original
punctuation provided]:
Page 1 line 4 insert a new section 1
Section1. Legislative Intent
It is the intent of the legislature in passing this
bill to preserve the basic structure of Alaska's
presumptive sentencing system, which is designed to
avoid disparate sentences. With this bill the
legislature sets out a sentencing framework, subject
to judicial adjustment for statutory aggravating or
mitigating factors that are determined in a manner
that is constitutional under the decision of the U.S.
Supreme Court in Blakely v. Washington. The single,
definite presumptive terms set out in current law can
unduly constrain the sentencing process, particularly
under the mandates of Blakely v. Washington. Although
the presumptive terms are being replaced by
presumptive ranges, it is not the intent of this bill
in doing so to bring about an overall increase in the
amount of active imprisonment for felony sentences.
Rather, the bill is intended to give judges the
authority to impose an appropriate sentence, with an
appropriate amount of probation supervision, by taking
into account the considerations set out in AS
12.55.005 and 12.55.015.
CHAIR McGUIRE objected for the purpose of discussion.
2:58:57 PM
REPRESENTATIVE GARA asked whether the language is the same in
both Amendment [11] and the letter of intent.
REPRESENTATIVE GRUENBERG said it is.
2:59:07 PM
REPRESENTATIVE ANDERSON said he is hesitant to enshrine intent
language in statute, and prefers the letter-of-intent format.
REPRESENTATIVE GARA pointed out, however, that letters of intent
end up in microphiche files, and so often are never seen. By
placing the language in the bill as part of uncodified law,
there is more likelihood that it will be noticed and be easier
to find.
CHAIR McGUIRE removed her objection, and asked whether there
were any further objections to Amendment 11. There being none,
Amendment 11 was adopted.
REPRESENTATIVE GARA, in conclusion, asked the PDA and the OPA to
review the language of Amendment 4 to ensure that it does what
the committee intends it to do.
REPRESENTATIVE KOTT moved to report CSSB 56(JUD), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
56(JUD) was reported from the House Judiciary Standing
Committee.
CHAIR McGUIRE noted that Representative Kott would be excused
from the next House Judiciary Standing Committee meeting.
ADJOURNMENT
3:02:01 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:02 p.m.
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