Legislature(1999 - 2000)
03/08/1999 01:35 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 25-THREE-TIME LOSER: VIOLENT MISDEMEANORS
MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 25. SB
25 is a bill designed to address people who commit repeated violent
misdemeanors. MR. PAULEY said it is common for felony offenses to
be reduced to misdemeanors during the plea bargain process. Under
SB 25, a person convicted of a third violent misdemeanor in a ten-
year period will be prosecuted for the third offense as if it was
a violent felony.
TAPE 99-16, Side B
Number 582
MR. PAULEY explained SB 25 covers eight offenses (class A and B
misdemeanors). Multiple offenses within a single criminal episode
are considered single offenses for the purpose of this bill. If the
defendant does not concede prior conviction, the prosecution must
provide the court with proof of the convictions at least 20 days
before sentencing. If the defendant disputes the accuracy or
relevancy of the prior record, he or she must serve the prosecutor
with a notice of denial 10 days before sentencing.
MR. PAULEY said SB 25 will provide an additional tool to keep
dangerous offenders off the street and send a message that the
state will not tolerate violence as a means to settle disputes.
MR. PAULEY indicated the sponsor met with a representative of the
Department of Law to address the department's concern over a
possible equal protection challenge to the bill. MR. PAULEY said
the challenge would arise from the sentencing difference between
two defendants who commit a violent misdemeanor, one who has two
prior violent misdemeanor convictions and is sentenced as a felon,
and the other who has two prior felony convictions and is sentenced
as a misdemeanant. MR. PAULEY said the opinion of the drafting
attorney is that the state could present a legitimate argument to
the "rational basis" test and the bill would be constitutional.
However, the sponsor would prefer a bill without any question of
constitutionality and is working toward an alternative.
MR. PAULEY commented that one alternative under scrutiny might
lower the bill's substantial fiscal note.
Number 543
SENATOR HALFORD asked how the bill would apply in situations where
offenses occur in such quick succession that there may not be a
conviction for them by the time the third offense is brought
forward. MR. PAULEY said that situation had not been anticipated.
Number 528
SENATOR ELLIS asked for an explanation of stalking in the second
degree. MR. PAULEY read the definition: "[to] knowingly engage in
a course of conduct that recklessly places another person in fear
of death or physical injury or in fear of the death or physical
injury of a family member." SENATOR HALFORD noted this crime can be
committed verbally "from 1,000 miles away."
SENATOR ELLIS assumed that a defendant facing conviction under SB
25 will be entitled to a full jury trial. MR. PAULEY agreed.
SENATOR ELLIS asked if the bulk of the costs reflected in the
fiscal notes comes from additional jury trials. MR. PAULEY said
that, and the cost of additional incarceration, comprise the bulk
of the fiscal notes.
SENATOR HALFORD asked what constitutes misconduct involving weapons
in the fifth degree. MR. PAULEY replied it is the possession of a
weapon on premises where liquor is sold for on-site consumption or
possession of a weapon by a minor without permission or possession
of a weapon in a parking lot adjacent to a child-care or domestic
violence/sexual assault shelter. This offense includes possession
of a switchblade or "gravity" knife.
SENATOR HALFORD asked if this means, "Three gravity knives and
you're out?" He suggested, "maybe that one should come off."
Number 460
MS. ANNE CARPENETI, representing the Department of Law, said the
equal protection challenge would result from a person with two
prior misdemeanor convictions being treated more seriously than a
person with two prior felony convictions. SENATOR DONLEY said the
argument could be made that a repeat or an escalation of a type of
criminal conduct is worse than a decreasing level of criminal
conduct.
MS. CARPENETI stated the Department is also concerned an increase
in grand jury indictments would require a big step up in the level
of prosecution; this is reflected in the Department's fiscal note.
Another concern is the effect this bill will have on the
prosecution of first and second violent misdemeanor offenses,
according to MS. CARPENETI.
MS. CARPENETI explained the Legislature last year adopted mandatory
minimum sentences for second and third degree domestic violence and
fourth degree assault. These are the most serious offenses covered
by SB 25 and she suggested the committee consider waiting for these
new laws to take effect, in order to see how prosecutions are
affected. She suggested they wait one year, saying "it sounds like
a good idea to get tough on people who continue to commit violent
misdemeanors . . . but this bill has some problems and we would
recommend waiting and getting more information on what we just did
last year . . . "
SENATOR ELLIS asked if the Anchorage Prosecutor's office has
submitted their concerns in writing. MS. CARPENETI did not know but
said she would ask them to do so.
Number 385
MS. MARGOT KNUTH, representing the Department of Corrections,
remarked that SB 25 keeps the actual offense a misdemeanor and only
considers it a felony for the purposes of sentencing. She asked if
the bill will allow presumptive sentencing and allow these crimes
to be prosecuted by municipalities. She said this may be a step
away from encouraging municipalities to deal with public services.
SENATOR DONLEY asked how many municipalities currently prosecute
misdemeanors. MS. KNUTH answered Anchorage and Juneau do. She
stated than John Richards estimated there would be a thousand
convictions under this law per year. The fiscal note was determined
using fewer than 250 cases.
MS. KNUTH said the Department assumed for the fiscal note a
sentence double the length of time currently served, and probation
for misdemeanant. Additional expenses would include pre-sentence
reports for these cases.
Number 346
SENATOR HALFORD commented that the number of people who fall into
this category is disturbing.
SENATOR DONLEY asked what the number would be if the bill was
narrowed to include only physically violent (contact) felonies. MS.
KNUTH reported the majority of cases are assault and violation of
domestic violence orders.
SENATOR DONLEY asked if aggravating and mitigating circumstances
are considered for misdemeanors. MS. KNUTH replied prior offenses
as well as the length of prior sentences and a statement by the
prosecutor are considered by the court.
MS. KNUTH explained there are 35,000 people who go through the
system annually; most are misdemeanants.
SENATOR DONLEY asked about the possibility of a mandatory one-year
sentence. MS. KNUTH replied the current 1.3 million dollar fiscal
note assumes 60 extra days of incarceration per person; a mandatory
one-year sentence would raise the amount to 6.8 million dollars.
SENATOR DONLEY commented that he is disturbed by how violence is
undervalued through plea bargaining. He said, "Ooh, what about
taking their Permanent Fund Dividend if they're three times
[offenders]- that would send them a message."
SENATOR HALFORD observed that the bill could be boiled down to
adding "60 days to serve for the person that's done this."
Number 269
MS. KNUTH said a new Anchorage jail with a 400 person capacity is
currently under construction, and "if the Legislature were
considering six months to serve on a third time violent offender,
we're going to have to up that right away." SENATOR DONLEY said
this presumes no deterrent factor at all. MS. KNUTH replied all
studies show the deterrent for these types of crime is the
certainty that they will be caught and suffer consequences.
According to MS. KNUTH, "Our system isn't good at that - we're good
at throwing the book at people once we get them." SENATOR DONLEY
said part of the problem is that these crimes are not taken
seriously enough.
SENATOR HALFORD remarked, "I'd like to see us do as much as we can
afford, but sometimes I think we hit these people just harder than
I can stand with my nose on their fist."
SENATOR DONLEY suggested if "we pull all their Permanent Fund
Dividends (PFDs)" this bill could be funded. MS. KNUTH reminded
the committee that the offender's PFD is the source of restitution
for the victim of the case. She mentioned PFDs are also often the
only source of child support collected from offenders.
SENATOR HALFORD asked SENATOR DONLEY if he would work with the
sponsor on SB 25. SENATOR DONLEY replied, "I'd pass it the way it
is - I like the bill."
Number 228
MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency,
expressed concern with prosecuting a crime "as if" it were another
crime. The Legislature has passed many bills over the past few
years that make a recidivist offense a more serious crime. This is
well established, but prosecuting a crime "as if" it were another
crime is not.
MR. MCCUNE said it would be difficult to administer the provision
that determines if prior offenses were elements of the same crime
committed for the third time.
Number 205
MR MCCUNE argued there are harsh sentences given now to people
convicted of a third domestic violence offense. Usually judges
include a big suspended sentence along with any time to serve, and
in case of an additional offense, the judge can impose a sentence
of up to one year in addition to the accumulated time that had been
previously suspended.
MR. MCCUNE said many of these cases involve people with mental
health problems and the Department of Corrections is the largest
mental health care provider in the state. A program to track these
people and provide them with mental health services has begun in
Anchorage; MR. MCCUNE thought that "real strict mandatory minimums
might hurt some of those programs." In the future, he hopes to see
strong substance abuse programs in jails and follow up substance
abuse treatment as a part of probation.
MR. MCCUNE expressed concern regarding the ability of
municipalities to prosecute these cases.
Number 142
MR. DAVID HUDSON testified the Alaska State Troopers support SB 25.
MR. MIKE PAULEY suggested there are alternatives to the current
bill such as mandatory minimum sentences that avoid the equal
protection challenge. He said this alternative would also reduce
the fiscal note from the court system, though it might increase the
fiscal note from the Department of Corrections.
SENATOR HALFORD said the bill will remain before the committee for
scheduling at the chairman's convenience. He said they would not
get to SB 77 today. SENATOR DONLEY said SB 77 is "a pretty
straightforward bill - I'd love to go ahead and move it out of here
today." SENATOR HALFORD indicated the sponsor of the bill would
prefer to wait.
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