Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/24/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SJR25 | |
| HB218 | |
| HB47 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 25 | TELECONFERENCED | |
| + | HB 47 | TELECONFERENCED | |
| + | HB 218 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 218-SENTENCING; AGRAVATOR/DEPORTATION STATUS
1:49:38 PM
CHAIR COGHILL announced the consideration of HB 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; 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." This was the first hearing of the bill. [CSHB
218(JUD) was before the committee.]
1:50:05 PM
TOM WRIGHT, Staff, Representative Mike Chenault, introduced HB
218 on behalf of the sponsor. He said the bill started out as a
very simple bill. After Representative Chenault had a discussion
with a correctional officer in Seward, he was informed there
were some statutes that did not cover correctional officers in
the same manner as police officers. Legislative Legal found one
statute that did not include correctional officers - AS
12.55.155(c)(31), which covers the aggravating factor of
multiple misdemeanors. The aggravating factor allows a judge who
is sentencing a person for a felony conviction to impose a
sentence above the presumptive range if the defendant has five
previous convictions for class A misdemeanors.
Generally, convictions for two crimes that are part of a single
criminal episode are counted as one prior conviction in
sentencing. However, there are exceptions. Current law provides
that prior convictions for resisting arrest, a misdemeanor while
attempting escape, and assault on a peace officer would each
count as a prior conviction even though they were part of the
same criminal episode. The bill extends the same protection to
correctional officers.
He explained that Department of Law had a problem extending the
same rights to persons in sentencing for a three-judge panel.
There were several cases where the defendants requested a three-
judge panel, citing deportation as an issue. The judge allowed
the defendants to go before a three-judge panel for sentencing
and the sentences were lessened because deportation was an
issue.
He related that an amendment now provides that the immigration
status of a defendant convicted of a felony should be a neutral
factor in imposing sentence on the defendant. He noted the
decision to initiate or not initiate deportation proceedings is
made by the federal government, not the state. He noted a letter
in the packets from the office of Immigration Customs
Enforcement (ICE) that on page 5 explains how ICE comes to a
deportation decision.
He concluded that it is a matter of fairness that a non-citizen
be granted different rights than a citizen. Allowing deportation
to be used in a sentencing factor creates a certain and
exceptional circumstance.
REPRESENTATIVE MIKE CHENAULT, sponsor of HB 218, said he agrees
with what the Department of Law has brought forward. No one
should have more rights than of a U.S. citizen.
CHAIR COGHILL asked Mr. Svobodny to discuss Sections 3, 4, and
5.
1:57:09 PM
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law (DOL), Juneau, Alaska, said Mr. Wright gave a
very good explanation of the bill. He said he wanted to make
four points. The provisions that deal with immigration are
designed to cover neutrality, fairness, public safety, and that
immigration/deportation and removal are subject to federal
jurisdiction.
He provided an example of how neutrality would apply. A person
in Nome who emigrated from Jamaica stabbed a cab driver and the
Jamaican got a break that the cab driver wouldn't if the
situation were turned. The bill is designed to treat all who
come before the courts in an equal way.
SENATOR WIELECHOWSKI said it seems like a violation of equal
protection. He asked if somebody could address that.
MR. SVOBODNY deferred to Ms. Black to answer. He addressed the
fairness issue. Sentencing laws come from the legislature and
set out a list of things to consider in sentencing, such as
deterrents. The preparatory language says it's being done to
make sentencing fair and equal among all persons. The court is
supposed to look at restitution and treating victims with
dignity and respect during sentencing. He said immigration
status isn't a factor.
He addressed public safety. He used the previous example to make
a point that when the three-judge panel considered sentencing,
they consider public safety.
He explained that deportation is a fundamental federal issue
beyond the control of the state. He noted that President Obama
yesterday said there would be fewer deportations, which is a
change in the rules. The National Immigration Law Center
believes that the President and ICE have extraordinary
discretion in deportation matters.
2:08:27 PM
SENATOR DYSON commented that prosecutors will often plead down a
case. His understanding was that the aforementioned person had
been in the U.S. for some time and had served in the military
with great distinction. He imagined the other side of the story
was that the judges thought his military service ought to be a
mitigating factor. If that was true, he wondered if the state
ought to do more in letting courts decide mitigating
circumstances.
MR. SVOGODNY opined that PTSD and FASD make sense as mitigating
factors and if the legislature decides to make distinguished
service a mitigating factor that is fine, but when a three-judge
panel is just guessing, it isn't acceptable.
2:12:29 PM
MR. WRIGHT highlighted a February 11 memo from Mr. Svobodny to
Representative Chenault that wasn't meant to be a legal memo.
Some of the testimony in House Judiciary treated it as a legal
treatise and it is not.
2:13:35 PM
MARGARET STOCK, representing herself, Anchorage, Alaska, said
she's an attorney who practices in the area of immigration. She
represents deported military veterans and they are not often
allowed reentry. Usually, they are deported under a particularly
harsh section of the law.
She described Mr. Svobodny's statement that the President is
changing the immigration law startling, because it can't be
done. She suggested he Google "deport veterans" to understand.
She also questioned what a memo from the Department of Law would
be if it isn't a legal memo. She cited other inaccuracies in
Department of Law's position on this matter.
MS. STOCK stated support for HB 218 as originally introduced,
but not with the anti-immigrant amendment that the Department of
Law suggested. It will disrupt the neutrality and fairness of
the law. It says these people can't go to a three-judge panel
because they're foreign born. What this does is create more
unfairness in the law. The amendment was designed to treat
foreign-born people differently.
She reiterated that there was neutrality before the recent
amendment was introduced.
2:21:14 PM
CHAIR COGHILL thanked Ms. Stock for her work and service to her
country.
SENATOR DYSON said he was startled to hear her say a naturalized
citizen could lose their citizenship.
MS. STOCK said there are two provisions resulting in loss of
citizenship for those who earn their citizenship through
military service. One is if five years of honorable military
service is not met, a person can be denaturalized and then
deported.
SENATOR DYSON said that information was helpful.
MS. STOCK said she would address in writing further errors in
the Department of Law's latest memo.
2:25:23 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), discussed the three-judge panel
application and unduly harsh consequences, which separates the
case from a valid equal protection argument. The Constitution
says that community condemnation, restitution, and reformation
are the goals of the criminal justice system. When viewed too
narrowly, you run the risk of unfair proceedings. Presumptive
sentences are designed to allow departures when appropriate,
based upon the full range of collateral consequences.
CHAIR COGHILL mentioned Section 4 and asked how the non-
statutory mitigators would apply under the presumptive range.
MR. STEINER explained that "if you plead and prove a non-
statutory mitigator, then you would potentially get the referral
to the three-judge panel." It would have to be re-proven to the
panel and then show that the departure is appropriate. There are
three hurtles in getting a departure below the presumptive
range.
2:30:29 PM
SENATOR WIELECHOWSKI asked what other states procedures are for
mitigating factors.
MR. STEINER said he didn't know; sentencing law is unique -
ranges and presumptions are unique.
SENATOR WIELECHOWSKI requested information about the mechanics
for getting to a three-judge panel.
MR. STEINER said there are two ways: a non-statutory mitigator
and the argument that the sentence is manifestly unjust.
2:32:36 PM
ANN BLACK, Assistant Attorney General, Criminal Division,
Special Prosecutions and Appeals, Department of Law, Anchorage,
Alaska, said with regard to the position that the bill is
injecting bias or lack of neutrality into sentencing, Mr.
Svobodny was accurate regarding a person's immigration status,
which is valid under U.S. immigration law. It's a federal issue
and isn't mentioned in the state constitution discussing what
the appropriate factors are when dealing with the administration
of justice in Alaska. She said in Alaska, the criminal
administration of justice under Article 1, Section 2, is
governed by the principles of protecting the public by enforcing
community condemnation of the offender, by considering the
rights of crime victims, by ensuring restitution from the
offender, and reformation of the offender.
She continued to say that this body codified additional factors
found in AS 12.55.005 including the seriousness of the
defendant's present offense, the defendant's prior criminal
record, and likelihood of rehabilitation, the need to confine
the defendant, the circumstances of the offense itself, and the
extent to which the defendant harmed or endangered victims or
public safety. Also considered are the effects sentencing will
impose of deterring the defendant, as well as other members of
society, community condemnation in the effort to reaffirm social
norms, and restoration of the community and the victim. Nowhere
is there any reference to federal policy on any topic, let alone
immigration.
She concluded that the bill "gets us back to the foundation of
criminal administration in Alaska." By doing that, it advances
this body's stated goal in creating a presumptive sentencing
scheme, which is to ensure that there is not disparate
sentencing. She said Mr. Svobodny noted two cases that are an
excellent example of showing how considering a person's
immigration status results in disparate sentencing. She used the
State vs. Silvera case as an example of an aggravated felon who
avoided deportation because he did not receive a presumptive
term sentence. It highlights why the state needs to allow the
federal system to enforce its own laws.
She maintained that Alaska judges and district attorneys do not
have the resources or time to become experts on federal
immigration law. The way the law currently stands, Alaska judges
are in the position to be making extremely weighty decisions
that affect, not only an individual defendant's ability to
remain in this country, but also affect public safety and the
rights of crime victims. This bill would prevent that from
happening.
2:41:25 PM
MS. BLACK addressed the equal protection issue. She said when
the court looks at whether or not a law violates equal
protection or due process, the law has to be narrowly tailored
to achieve a legitimate purpose. Protecting the public and
ensuring victim rights are compelling state purposes. In
addition, the court always looks to the class that is being
affected by the law. There has been some indication that the
class should be those who are subject to harsh consequences -
those who are potentially subject to deportation. But,
throughout its history, the court of appeals, when assessing
whether or not there is an equal protection violation, doesn't
look at the specific details of an individual defendant, they
look at broader categories. In this instance regarding
sentencing law, the courts have already upheld the presumptive
sentencing laws and when they did so, they looked to the level
of felony classification as the classification. She used all
class A felonies as an example.
2:45:19 PM
She discussed military personnel who were deported. She said
Senator Dyson was correct in pointing out that they were
required not to engage in misconduct. She pointed out that
honorable service is required to earn U.S. citizenship. The
Alaska legislature must ensure that its citizens are protected
and that military personnel brought before a court will receive
just and equal treatment by the court. She concluded that HB 218
would ensure that that happens.
2:46:51 PM
CHAIR COGHILL said the argument is well laid out. He listed the
questions he would like to explore and stated he would hold HB
218 in committee for further consideration.