Legislature(2013 - 2014)
02/24/2014 02:06 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB218 | |
| HB245 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 218-PENALTY: ASSAULT ON CORRECTIONAL EMPLOYEE
SENTENCING; AGGRAVATOR/DEPORTATION STATUS
2:06:14 PM
CHAIR KELLER announced the first order of business would be
HOUSE BILL NO. 218, "An Act relating to the aggravating factor
at felony sentencing of multiple prior misdemeanors when a prior
misdemeanor involves an assault on a correctional employee."
CHAIR KELLER closed public testimony.
2:07:35 PM
REPRESENTATIVE GRUENBERG moved that the committee's rescind its
action in adopting Amendment 1, labelled 28-LS0941\A.2,
Strasbaugh, 2/11/14, on 2/12/14 which read:
Page 1, line 3, following "employee":
Insert "; providing that deportation is not a
proper factor for referral of a case to a three-judge
panel for sentencing for a felony; and providing for
an effective date"
Page 1, following line 4:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE INTENT FOR SECTIONS 3 AND 4 OF THIS
ACT. It is the intent of the legislature that
AS 12.55.165(d), added by sec. 3 of this Act, and
AS 12.55.175(g), added by sec. 4 of this Act, overturn
the decision of the Alaska Court of Appeals in State
v. Silvera, 309 P.3d 1277 (Alaska Ct. App. 2013), and
the Alaska Supreme Court in Dale v. State, 626 P.2d
1062 (Alaska 1980) to the extent that the decisions
hold that the risk of deportation may be considered a
basis for referral of a felony sentencing to a three-
judge panel."
Page 1, line 5:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 6, following line 4:
Insert new bill sections to read:
"* Sec. 3. AS 12.55.165 is amended by adding a new
subsection to read:
(d) A court may not refer a case to a three-
judge panel under (a) of this section if the request
for referral is based, in whole or in part, on the
claim that a sentence within the presumptive range may
result in the classification of the defendant as
deportable under federal immigration law or that
collateral consequences may or will result if the
defendant is classified as deportable.
* Sec. 4. AS 12.55.175 is amended by adding a new
subsection to read:
(g) A defendant being sentenced under
AS 12.55.125(c), (d), (e) or (i) may not establish,
nor may a three-judge panel find under (b) of this
section or any other provision of law, that manifest
injustice would result from imposing a sentence within
the presumptive range based, in whole or in part, on
the claim that the sentence may result in the
classification of the defendant as deportable under
federal immigration law or that collateral
consequences may or will result if the defendant is
classified as deportable.
* Sec. 5. The uncodified law of the State of Alaska
is amended by adding a new section to read:
APPLICABILITY. (a) Section 2 of this Act applies
to offenses committed on or after the effective date
of this Act.
(b) Sections 3 and 4 of this Act apply to
offenses committed before, on, or after the effective
date of this Act if the sentence is imposed on or
after the effective date of this Act.
* Sec. 6. This Act takes effect July 1, 2014."
2:08:07 PM
REPRESENTATIVE PRUITT objected to rescinding the adoption of
Amendment 1 and stated that after analyzing prior testimony, he
found no reason defendants in the same sentencing situation
should be identified separately.
2:08:54 PM
REPRESENTATIVE GRUENBERG opined that the adoption of Amendment 1
should be rescinded as it renders that section of the bill
unconstitutional. He advised that Naturalized Americans are
already a "special group" subject to deportation under federal
law; Amendment 1 merely allows the court to entertain a motion
to rectify the situation and state law provides no special
preference. In Padilla the importance of deportation, de-
naturalization, and [a defendant] exiled from America is
discussed. He reminded the committee that [adoption of
Amendment 1] reverses a case referred to a three-judge panel
which determined it was appropriate to mitigate [deportation.
The case was then appealed to the court of appeals it decided
deportation as a factor] was deemed appropriate, and then the
Alaska Supreme Court refused to review. There hasn't been a
single judge in the state that has adopted the approach
[embodied in Amendment 1]. He opined Amendment 1 will "breed"
litigation, [spend] public money, and more importantly, he
offered that Amendment 1 is "just wrong."
2:12:05 PM
REPRESENTATIVE LYNN related his belief that when a crime has
been committed there should be one set of rules for everyone and
[Alaska] should not [create] a second class of citizens.
2:12:47 PM
CHAIR KELLER advised he is voting against [the motion to rescind
the committee's action in adopting Amendment 1] as Alaska does
not have the resources or the inclination to second guess
federal immigration judges and adjust Alaska's Criminal Law to
Federal Immigration Law.
2:13:31 PM
REPRESENTATIVE MILLETT noted that subsequent to discussions with
Anne Carpeneti, Margaret Stock, and Ann Black, she came to
certain conclusions and referred the committee to the Alaska
Constitution, Article I, which read:
§ 12. Criminal Administration
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted. Criminal administration shall be based upon
the following: the need for protecting the public,
community condemnation of the offender, the rights of
victims of crimes, restitution from the offender, and
the principle of reformation.
REPRESENTATIVE MILLETT then referred the committee to State of
Alaska v. Chaney, [477 P.2d 441, Alaska 1970], which resulted in
the following:
AS 12.55.005. Declaration of Purpose.
The purpose of this chapter is to provide the means
for determining the appropriate sentence to be imposed
upon conviction of an offense. The legislature finds
that the elimination of unjustified disparity in
sentences and the attainment of reasonable uniformity
in sentences can best be achieved through a sentencing
framework fixed by statute as provided in this
chapter. In imposing sentence, the court shall
consider
(1) the seriousness of the defendant's present offense
in relation to other offenses;
(2) the prior criminal history of the defendant and
the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent
further harm to the public;
(4) the circumstances of the offense and the extent to
which the offense harmed the victim or endangered the
public safety or order;
(5) the effect of the sentence to be imposed in
deterring the defendant or other members of society
from future criminal conduct;
(6) the effect of the sentence to be imposed as a
community condemnation of the criminal act and as a
reaffirmation of societal norms; and
(7) the restoration of the victim and the community.
2:15:30 PM
REPRESENTATIVE MILLETT directed attention to the seven issues
taken into consideration when a defendant is before a [state]
sentencing judge. When a non-citizen is allowed to go before a
three-judge panel, they are receiving special treatment because
a U.S. citizen can't use the same excuse. With regarding to
prior testimony about Alaska Natives and immigrants and their
families, Representative Millet suggested those discussion
played on people's emotions. In fact, within the last six or
seven years Alaska has had no cases involving separation of
families and surmised that possibly prior testimony was
regarding the federal government's actions [that resulted in]
separating families. [Amendment 1] discusses state law not
federal law, she opined. She further opined that the state
should remain neutral regarding citizenship status and imposing
criminal penalties for violations of a state law as Alaskans
[must] have confidence in their courts by being sentenced
similarly for the same crime. A mitigating factor for
deportation should not be allowed to determine that an
individual can go before a three-judge panel. Therefore, she
encouraged the committee to consider the importance of Alaska's
courts. She then reasoned that public safety is also a concern
inasmuch as the [deportable] defendant receives a lower sentence
of 364 days and is not required to be on probation or any type
of supervision following release. A separate class of citizens
is created when allowing an immigrant to use deportation as an
excuse to get away with a crime, she noted. This amendment,
however, treats all Alaskans the same, she emphasized.
2:21:08 PM
REPRESENTATIVE GRUENBERG stated it is the legislature's duty to
adhere to both the Alaska State Constitution and U.S.
Constitution as ultimately, if Alaska passes a law that is
possibly unconstitutional it may become a federal court's
decision based upon the U.S. Constitution. Therefore, the state
should be mindful of cases from the 9th Circuit, local district
courts, state courts, and the U.S. Supreme Court. Representative
Gruenberg specified that the only argument advanced in favor of
Amendment 1 is that it is not a violation of equal protection
which was brought forth in the Silvera case and was rejected.
In fact, that issue has been dispositively and adversely dealt
with at every level of Alaska's court system. He then described
health, age, and "all kinds of issues" that can be used as
mitigating factors and [deportation] is merely one such factor.
Therefore, if [non-citizens] are not allowed to use the
mitigating factor of deportation, then they are being singled
out in reverse. He opined there are various remedies a judge
can rule that will provide equal protection to the community
without deportation and separation from innocent family members.
He emphasized that he is merely suggesting that the individual
be allowed to make the argument and if it is unfair, unjust, or
wrong, will come out before the court.
2:27:34 PM
REPRESENTATIVE MILLETT, in response to Representative Gruenberg
contended that regarding adhering to both the Alaska State
Constitution and U.S. Constitution, the federal government
deports people and partakes in the process of deportation,
Alaska does not. She then stated that a [deportable] defendant
[is also allowed to use] the mitigating factors of illness, age,
and others. With regard to comments about the innocent children
[of the non-citizen], Representative Millet emphasized she does
not want to cause a disservice to Alaskan victims and their
families by allowing a [deportable] defendant the opportunity of
a three-judge panel and a reduced sentence.
2:29:22 PM
REPRESENTATIVE PRUITT called for the question.
2:30:02 PM
A roll call vote was taken. Representatives Gruenberg and
LeDoux voted in favor of rescinding the committee's action in
adopting Amendment 1. Representatives Millett, Pruitt, Foster,
Lynn, and Keller voted against it. Therefore, the committee
failed to rescind its action in adopting Amendment 1 by a vote
of 2-5 and HB 218, as amended, was before the committee.
2:30:52 PM
REPRESENTATIVE PRUITT moved to report HB 218, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE GRUENBERG objected for purposes of discussion and
stated he strongly supports the original bill and cannot support
Amendment 1.
A roll call vote was taken. Representatives Foster, Lynn,
Millett, Pruitt, and Keller voted in favor of reporting HB 218,
as amended, from committee. Representatives Gruenberg and
LeDoux voted against it. Therefore, CSHB 218(JUD) was reported
from the House Judiciary Standing Committee by a vote of 5-2.
2:33:06 PM
The committee took a brief at-ease.
2:33:08 PM
REPRESENTATIVE GRUENBERG related that his recommendation on CSHB
218(JUD) will be to amend for the reasons he previously stated.
2:33:19 PM
The committee took a brief at-ease.
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