Legislature(1999 - 2000)
04/05/2000 01:50 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 372
"An Act relating to criminal sentencing and
restitution."
REPRESENTATIVE FRED DYSON, SPONSOR, testified in support of
the legislation. He noted that virtually all justice systems
around the world have focused on restitution of the victim
after public safety. He noted that there has been a
tradition of paying debts to society by paying the King
instead of the victim. An effort has been made to return to
a focus of restorative justice and restitution of victims.
He observed that the juvenile justice system is committed to
the restorative justice system. The legislation places
current practice in statute and allows a negotiated
agreement between the victim and the perpetrator to work out
restoration of the community and victim as part of the
sentencing agreement.
PETER TORKLESON, STAFF, REPRESENTATIVE DYSON observed that
HB 372 is post-adjudication. The judge may consider letting
a willing victim and defender negotiate a way, such as
community service, to make the victim whole. Vermont has had
stellar success in cost savings and reduced recidivism
rates. He acknowledged concerns by the Department of Law
regarding sentencing of potential felons. He pointed out
that under lines 9 - 10 the negotiated sentence must comply
with general sentencing guidelines. He stated that some
people that commit technical felons, such as those that
commit property fines, should be allowed to negotiate under
the section. The legislation is permissive.
Co-Chair Therriault questioned if discussions occurred
regarding the exclusion of violent felons from the
provisions.
Representative Dyson stated that violent felons would be
excluded. Mr. Torkelson pointed out that line 6 excludes
violations under AS 11.41, which includes person to person
assault and murder.
Representative Phillips referred to the negotiated agreement
and questioned the rationale of giving the defender the
right to request negotiation. Representative Dyson gave
examples of negotiations that may be presented by a
defendant. Confronting the victim and apologizing is helpful
in restoring the perpetrator.
In response to a question by Representative Phillips,
Representative Dyson noted that more than half of offenders
chose to enter into an agreement and more than half of those
that chose negotiation fulfill their obligation. If the
agreement is not fulfilled than the perpetrator returns to
the original penalty. Agreements have the force of law.
Representative J. Davies questioned if the legislation
limits the ability to restore costs to the "King".
Representative Dyson emphasized that the community gets an
opportunity to recover costs.
Co-Chair Therriault observed that after an offender is
convicted a fine is charged and that surcharges pertain to
the fine or penalty. He clarified that the victim and the
perpetrator could agree on something to make the victim
whole and pay a fine to the community and that the surcharge
to the state would be included. Representative Dyson agreed
that surcharges would be included and added that the cost of
adjudication could be included.
Vice Chair Bunde clarified that the judge would monitor non-
compliance. Mr. Torkelson stated that some perpetrators
approach the court to negate the contract and resume the
original sentence.
Representative Grussendorf summarized that the legislation
would resolve the civil aspect of minor criminal offenses.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW provided
information on the legislation. The department is not
opposed to restorative justice, but has some concerns
regarding the legislation. She gave a brief history of
current sentencing procedures. She observed that the main
focus of presumptive sentences in the late 70's was to
impose a sentence according to the offence and to provide
uniformity for certain acts. She maintained that restorative
justice is a bend in the road. She acknowledged that it is
appropriate in certain cases and added that judges are using
the process in mental health cases, substance abuse and in
minor property crimes. Statutory authority is not needed for
restorative justice. She expressed concern that the
legislation sets parameters around the use of restorative
justice. She stated that the department is concerned that
restorative justice would be allowed in cases that they do
not feel are appropriate such as first time unclassified
felonies, first time class A felonies, and second offense
class B and C felonies; this includes arson and burglaries.
She maintained that these are serious crimes and questioned
if a victim would be in a position to negotiate with an
offender.
Ms. Carpeneti stated that the department is also concerned
that allowing negotiation between a victim and an offender
is difficult because the victim is not in an equal
bargaining position, victims are not represented. She
recommended that the courts continue their current practice
of slowly applying restorative justice in cases where it is
appropriate without legislation.
Ms. Carpeneti noted that in a victimless crime there is a
question of who is the community. There would be cases where
it is unclear who represents the community or what is best
for the community. She summarized that the department has
problems with the legislation but not with restorative
justice.
Co-Chair Therriault pointed out that the judge does not have
to accept a negotiated agreement if he/she does not believe
it is adequate punishment.
Ms. Carpeneti expressed concerns regarding equality of cases
where the offender has enough money to negotiate a
settlement that the victim thinks is fair as opposed to the
person that does not have enough money to pay for the car or
the window to make the victim whole.
Co-Chair Therriault questioned if judges could be relied on
not to allow perpetrators to buy their way out of adequate
punishment.
Ms. Carpeneti responded that it would be easier for a judge
to address the issue on a case by case basis. The
legislation provides for mitigating factors for a negotiated
fee.
Representative Grussendorf questioned if the state
prosecutor would not act as the victim's attorney. He asked
if the legislation could require that the state agree to
negotiation.
Ms. Carpeneti noted that defenders have one attorney for his
or her only interest. The interest of the prosecutor is
divided. She agreed that the legislation could require
agreement by the state. She acknowledged that there has not
been a problem with the current use of restorative justice.
Vice Chair Bunde summarized that the legislation is
permissive and that judges can choose not to use the
provisions of the law. Ms. Carpeneti agreed that the
provision is permissive but emphasized that it is difficult
for a judge to know if there has been intimidation. She gave
the example of an older person that has been the victim of
someone known to them. She stressed that victims can be
fragile and afraid to speak for themselves. She noted that
restorative justice is being used for cases involving mental
health. She suggested amending the purposes of sentencing
under AS 12.55.005. She stated that restoration to the
victim and community could be added to sentencing purposes.
Vice Chair Bunde observed that the judge initiates
restorative law under the current practice. If the
legislation is passed the victim or the offender could
initiate justice.
Ms. Carpeneti noted that, in Anchorage, cases are directed
to particular courts where judges have adopted procedures.
She suggested that the legislation would result in defense
lawyers contacting victims. She pointed out that defendants
often will not plea guilty unless they know what their
sentence would be. She maintained that the provision is not
practical due to plea negotiations.
Co-Chair Mulder expressed concern with presumptive
sentencing. He summarized that the department is concern
that the legislation would allow the court to circumvent
presumptive sentence. Ms. Carpeneti explained that a
negotiation would be a mitigating factor and would allow the
court to reduce presumptive sentencing.
Co-Chair Mulder questioned if the negotiated settlement
should include the judge. Ms. Carpeneti stated that it would
depend on the type of case but that it would not a bad idea
to include the judge. Co-Chair Mulder emphasized that the
judge would be the third party to balance the agreement. He
noted that there are some factors that might want to be
exempted. Ms. Carpeneti responded that there has been
discussion on excluding cases that are outside of AS 11.41.
In response to a question by Co-Chair Therriault, Ms.
Carpeneti noted that an offender that burns down a house and
an offender that burns something in someone's yard would
both be included under arson.
In response to a question by Representative J. Davies, Ms.
Carpeneti explained that the legislation adds a mitigating
factor. She discussed presumptive sentencing under AS
12.55.125. She noted that terms were set for what were
deemed to be the right time for certain offenses. Then
mitigating factors were set out to allow the court to raise
or lower sentences. Factors of mitigation have to do with
excuses. The defendant has to prove by clear and convincing
evidence that it was a mitigated crime. The legislation
would add a mitigating factor without clear and convincing
evidence.
Representative Grussendorf questioned how "community" would
be defined. Ms. Carpeneti responded that she did not know
how community would be defined.
BLAIR MCCUNE, DEPUTY DIRECTOR, PUBLIC DEFENDER AGENCY
testified via teleconference in support of the legislation.
He clarified that mandatory fines and surcharges would be
included. He pointed out that the Victim's Rights Act
protects the victim. He noted limitations on the contact of
victims by the defendant's lawyer or the defendant. The
state while representing the public interest also often
represents the interest of the victims.
Mr. McCune observed that juvenile court cases are screened
to be sure that the cases chosen are appropriate. There is a
victim offender mediator, which helps the process. He
suggested that judges would be less inclined to take cases
negotiated through straight contact. He maintained that
restorative justice is about mediated controlled and
carefully screened cases, in which the interests of the
community, the victim and the offender are taken into
account and carefully weighed. He noted that restorative
justice has worked well in other states.
Representative Grussendorf reiterated his questioned
concerning the definition of "community".
(TAPE CHANGE, HFC 00 - 102, SIDE 2)
Mr. McCune gave examples of the interpretation of community.
Mothers against Drunk Drivers were involved in a DWI case.
Other restorative justice cases have included local merchant
associations in downtown areas that were vandalized. He
acknowledged that community is not strictly defined.
Representative Grussendorf summarized that the judge would
decide the definition of community. Mr. McCune affirmed.
Representative Dyson expressed confidence in the judge's
ability to look after the interest of the victims. He
pointed out that judges are already doing it and that the
legislation would just authorize current practice. He
stressed that there are good application opportunities for
rural Alaska and emphasized that it is not a new practice.
Representative J. Davies expressed concern that there not be
unintended consequences. He asked for purpose of including a
mitigator.
Mr. Torkelson responded that the purpose was to allow the
judge to take the negotiation into account.
Representative J. Davies noted that all the other mitigators
were on the nature of the crime itself. He pointed out that
there would be a new class of mitigators.
Vice Chair Bunde stated that his concern is with the victim.
He stressed that he would rather have his loss restored than
have someone sit in jail.
Representative Dyson observed that perpetrators that go
through restorative justice have lower incidents of
recidivism. He maintained that working to restore a loss
expresses the magnitude of the crime and the loss on the
offender. He felt that it would be a greater punishment to
face victim and be accountable.
Co-Chair Therriault stressed that he wanted to assure that
judges do not just rubber stamp negotiations but take an
active role.
Representative Grussendorf questioned if some of the more
serious crimes should be excluded. Representative Dyson
acknowledged his concern and added that making up for a
burglary is a good experience for the burglar. He emphasized
that it can work for very violent crimes and urged that the
judge make the decision.
Representative Grussendorf pointed out that burglary and
arson can turn into very serious offenses.
Co-Chair Therriault questioned if lesser and greater extents
of arson can be separated.
Representative J. Davies stated his intention to offer
amendments on the legislation. He stated that he would like
to add a requirement that the court approve the negotiation
before it happens.
Co-Chair Mulder questioned if the judge should be involved.
Discussion ensued regarding involvement of the judge. Co-
Chair Mulder argued in support of the judge's involvement.
Representative J. Davies stressed that there are classes of
restorative justice that would not require the involvement
of the judge during negotiations.
Representative J. Davies restated his intention to offer an
amendment that would insert a sentence at the end of section
1: in this section "community" shall be defined by the
court. Mr. Torkelson observed that "community" is defined as
a group of people with common interests.
Representative J. Davies stated that his amendment would
make it clear that is not up to the offender to define the
community.
Mr. Torkelson questioned why would the defense attorney
allow to a defender to go into something without knowing the
outcome. Representative J. Davies pointed out that have the
choice to agree or go back to the original sentencing.
HB 372 was heard and HELD in Committee for further
consideration.
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