Legislature(1999 - 2000)
04/19/2000 02:15 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 372-CRIMINAL SENTENCING AND RESTITUTION
REPRESENTATIVE FRED DYSON, sponsor of HB 372, explained that
virtually all justice systems have traditionally focussed on
restoring the victim to a pre-offense condition. In biblical
times, if a cow was killed, the community would come together and
require that the owner of the cow be compensated. In this country,
a movement back to a restorative or reparative justice system is
occurring. HB 372 is a small step that puts in statute language
that permits judges to allow perpetrators of non-violent crimes to
negotiate reparations for the community or for the victim which the
judge can use as part of the offender's sentence.
Number 819
DEAN GUANELI, Assistant Attorney General with the Criminal Division
of the Department of Law (DOL), agreed with Representative Dyson
that the current process of awarding restitution to victims has
problems, however he does not believe HB 372 addresses the key
issues. HB 372 is unfair to victims and it is unfair to other
defendants. In addition it contains uncertain procedures.
MR. GUANELI said first of all, putting victims in a position to, in
essence, plea bargain with the defendant over the sentence puts the
victim in an unequal bargaining position. Defendants have a right
to counsel, and if they cannot afford one, counsel is appointed for
them. Victims may not have a lawyer therefore they could be taken
advantage of by defense attorneys who know the law and procedures.
Nothing will be gained by the victim when negotiating directly with
the defendant. Defense attorneys are likely to tell the victims
if they agree to a lesser sentence, they will get paid the full
amount of restitution. Although the bill contains a provision that
addresses coercion or intimidation, defense attorneys will simply
be using good negotiating tactics.
MR. GUANELI maintained that HB 372 will create a series of
uncertain procedures. When the defendant reaches an agreement with
the prosecutor over a plea, it is presented to the judge. If the
judge does not accept the agreement, the defendant is allowed to
withdraw his plea and the case goes to trial. The agreement could
be held over the victim's head by the defense attorney who might
say if the victim does not agree, the case will go to trial. It
raises the spectre of putting the victim in a position of having to
plea bargain without being aware of all of the laws and rules of
procedure. It also raises questions about the role of the
probation office in presenting pre-sentence reports to the court.
MR. GUANELI commented that the additional thing about creating a
mitigating factor in which a defendant can make a deal with the
victim allows defendants with money to buy their way out of jail
time. He noted that the Senate has passed SB 4 which creates an
office of victim advocacy. HB 372 will have a large impact on that
agency as victims will most likely get representation from it.
MR. GUANELI suggested the following changes to improve the existing
system. AS 12.55.005 contains a list of factors that the court is
supposed to consider when imposing a sentence. A factor about
restoration of the victim and the community could be included.
That would force judges to consider restoration of the victim but
it would not put the victim in the position of actually having to
plea bargain. The factors in the statute then will find their way
into the appelate opinion. If the sentencing courts do not
adequately take the factors into consideration, the appelate court
has sentencing review authority so the sentence can be disapproved.
Second, in imposing restitution, the court can require compensation
in some form other than money. Some judges make restitution a
condition of probation so that if the offender does not pay, he or
she could be put back in jail. That only works for the duration of
the probation period, however. He suggested making the order of
restition a condition of probation and a condition of the sentence.
That way, if the restitution is not paid before the probation
period ends, the order of restitution can be reduced to a civil
judgment and enforced by the victim. He indicated that by placing
the condition of sentence in statute, all judges would use it.
MR. GUANELI informed committee members that he had a list of his
suggestions which could easily be put in an amendment format.
Number 1338
SENATOR HALFORD noted that the title of HB 372 is broad enough to
amend almost anything into it. He asked Representative Dyson how
he felt about the proposed amendment.
REPRESENTATIVE DYSON said he has not yet seen the list of
suggestions which disturbs him. He thought they sounded good.
MR. GUANELI indicated the suggestions were given to Representative
Dyson's staff earlier today.
CHAIRMAN TAYLOR suggested that Mr. Guaneli meet with Representative
Dyson to discuss a proposed amendment. He noted that as a district
judge he has seen victims hold defendants hostage. He thought HB
372 provides for victims' allocution rights and for enforcement
rights that the court can give to victims. He noted that
representatives of womens' shelters throughout the state expressed
concern about negotiations between partners in domestic violence
cases.
REPRESENTATIVE DYSON pointed out that the crime of domestic
violence and other crimes of violence were left out of the bill for
that very reason. HB 372 only applies to the sentencing phase and
it allows, not mandates, the judge to allow negotiations.
CHAIRMAN TAYLOR noted in a majority of cases, sentencing occurs at
arraignment. Only in a felony case will there be some delay in the
sentencing process.
REPRESENTATIVE DYSON said this weekend a restorative justice
conference is being held in Anchorage and he will be attending one
in Washington, D.C. in May. Most of the judges in Alaska see this
as an opportunity to protect the rights of the victim. Many judges
are referring cases to mediation which is done in a very controlled
environment where the victim's rights are looked after.
CHAIRMAN TAYLOR announced the committee would put the bill aside
for a short time while Representative Dyson and Mr. Guaneli discuss
a proposed amendment.
HB 372-CRIMINAL SENTENCING AND RESTITUTION
MR. PETER TORKELSON, legislative aide to Representative Dyson,
informed committee members that he and Representative Dyson sat
down with representatives from DOL. Representative Dyson is not
opposed to incorporating Mr. Guaneli's proposed amendment into HB
372. He believes DOL intends to replace HB 372 with the proposed
amendment which Representative does not support.
Amendment 1 reads as follows.
A M E N D M E N T 1
OFFERED IN THE SENATE DEPARTMENT OF LAW
TO: CSHB 372(FIN)am
*Section 1. AS 12.55.005 is amended to read:
Sec. 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 stateute as provided in thie 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;
(5) the effect of the sentence to be imposed in deterring the
defendant or other members of society from future criminal
conduct; [AND]
(6) the effect of the sentence to be imposed as a community
condemnationn of the criminal act and as a reaffirmation of
societal norms; and
(7) the restoration of the victim and the community.
*Sec. 2AS 12.55.045(f) is amended to read:
(f) If a court proposes to order a defendant to pay
restitution under this section of more [LESS] than $5,000, and
the defendant's sentence includes [DOES NOT INCLUDE] a period
of unsuspended incarceration exceeding 90 days, the court may
take into account at the time of sentencing the defendant's
present and future ability to pay the restitution proposed.
The court shall presume that the defendant has the ability to
pay the amount proposed unless the defendant at the sentencing
hearing establishes by clear and convincing [A PREPONDERANCE
OF THE] evidence the inability to pay the amount proposed.
*Sec. 3 AS 12.55.045 is amended by adding new subsections to read:
(I) An order of restitution made under this section is a
condition of the defendant's sentence and, in cases in which
the court suspends all or a portion of the defendant's
sentence, the order of restitution is a condition of the
suspended sentence. If the court suspends imposition of
sentence under AS 12.55.085, the order of restitution is a
condition of the suspended imposition of sentence.
SENATOR ELLIS expressed support for adding the amendment to the
bill.
CHAIRMAN TAYLOR noted the proposed amendment contains the word
"may" so it does not mandate anything.
SENATOR ELLIS moved to adopt Amendment 1 as an addition to the
legislation. There being no objection, the motion carried.
SENATOR ELLIS moved SCS CSHB 372(JUD) from committee with
individual recommendations. There being no objection, the motion
carried.
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