Legislature(2005 - 2006)BUTROVICH 205
01/20/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| SB19 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 56 | ||
| = | SB 19 | ||
SB 56-CRIMINAL LAW/PROCEDURE/SENTENCING
SENATOR THERRIAULT moved to adopt version I as the working
document before the committee. He explained that version I
contains three amendments, on pages 2, 3, and 4, that the
committee previously adopted.
CHAIR SEEKINS noted that without objection, version I was the
working document before the committee.
SENATOR THERRIAULT said he noticed that the effective date in
Section 34 is not until July 1 and suggested making that date
sooner since this change would allow people who are sentenced to
make challenges. He then moved an immediate effective date that
would replace Section 34.
CHAIR SEEKINS noted that without objection, the effective date
would occur immediately upon passage into law.
SENATOR THERRIAULT moved to adopt the January 17, 2005 letter of
intent.
CHAIR SEEKINS announced that without objection, the January 17,
2005 letter of intent was adopted.
8:38:38 AM
SENATOR FRENCH asked for clarification of the amendment
incorporated into version I on page 2, regarding the composite
sentence of less than two years to serve. He said his intent was
to preserve a judge's ability to impose a periodic sentence for
a two-year sentence, since that is the benchmark for a second C
felony. He suggested changing "of less" to "no more" so that it
would stop at two years.
CHAIR SEEKINS asked if he was suggesting language that says two
years or less.
SENATOR FRENCH said it should say two years or less or no more
than two years to serve.
SENATOR THERRIAULT urged Senator French to move a conceptual
amendment and leave the appropriate language up to the legal
drafter.
SENATOR FRENCH agreed and said the idea is that the "gate" for a
periodic sentence will slam shut at two years and not at two
years and one day.
8:40:09 AM
CHAIR SEEKINS noted that without objection, that conceptual
amendment would be adopted as Amendment 5.
8:40:36 AM
CHAIR SEEKINS asked if Ms. Rogers from Fairbanks wanted to
testify; however she was not available at this time. He then
asked if anyone had any more proposed amendments. There were
none.
CHAIR SEEKINS directed the discussion to the fiscal notes.
8:42:29 AM
CHAIR SEEKINS pointed out the committee had some discussion with
members of the Public Defender's Office that a zero fiscal note
would be inappropriate because of possible constitutional
challenges. He said that although he thought the committee
discussed that topic in depth and decided that no constitutional
problems existed, he would like Ms. Wilson to address that
topic.
MS. LINDA WILSON, Deputy Director of the Alaska Public
Defender's Office, explained that Department of Law (DOL) staff
testified that no constitutional violation exists, but that is
the department's opinion and it will not prevent challenges. The
court will decide whether or not this remedy is constitutional.
The Alaska Public Defender's Office represents clients who make
those challenges and it believes that challenges will happen.
The challenges will likely be to the right to a grand jury on
aggravators, as well as to equal protection for a disparity
within the range. She believes there will be more jury trials on
the aggravators and predicted there will be more sentences with
probationary time.
8:46:03 AM
MS. WILSON felt the sentence within the range will encourage a
judge to give probation time. She believes that if more people
are put on probation, more probation violations will occur. That
will create more petitions to revoke probation. Because the
public defender's agency represents the bulk of those clients,
she expects to see an increase in those types of cases. She also
felt there will be challenges to the portion of the bill that
eliminate some of the prior conviction-based aggravators from a
right to a jury trial. She noted that was Section 21 in the
first draft of the bill. Some will require additional facts that
need to be proved to a jury beyond a reasonable doubt.
8:48:16 AM
SENATOR THERRIAULT noted that any piece of legislation carries a
potential cost to state government and pointed out, as an
example, that a bill could trigger the need to redraft
regulations that could be challenged. However, those costs don't
trigger a fiscal note because that is the cost of doing
business. Regarding probation, the Department of Corrections has
said it is unable to predict with any accuracy the future action
of judges. He said his understanding of an indeterminate fiscal
note is one in which a department is sure the piece of
legislation will have associated costs but those costs cannot be
quantified. He said that most of what has been enumerated in the
fiscal notes is very speculative and that he strongly disagrees
with this fiscal note.
8:50:37 AM
CHAIR SEEKINS said it has not been his policy to speculate the
cost of a possible challenge and put that into a fiscal note. He
noted that many of the bills that have passed out of the Senate
Judiciary Committee might be challenged.
8:51:26 AM
SENATOR FRENCH pointed out that the bill authorizes longer
sentences. He would expect the DOL to argue for longer sentences
in appropriate cases and for longer sentences to be imposed. He
said the strongest argument in favor of an indeterminate fiscal
note would be that longer sentences would be imposed under this
bill.
8:51:58 AM
CHAIR SEEKINS said he didn't necessarily disagree. He was a
negotiator for 35 years, and if he was negotiating on the cost
of something and knew it could cost more if he didn't negotiate
hard for a lower cost, he would negotiate harder. He said it is
possible the opposite could be argued in terms of attorney
negotiations for a plea bargain because it could reduce the cost
to the parties. He said that is why he proposed the zero fiscal
note from the Senate Judiciary Committee; he would like to adopt
that fiscal note if the committee goes forward with the bill.
8:53:18 AM
SENATOR GUESS said her observation matches Senator French's in
that mathematically, if the baseline remains the same but the
upper range is expanded, the average sentence is likely to be
longer; therefore an impact on the Department of Corrections is
likely. She noted she had not considered the plea bargaining
aspect.
SENATOR THERRIAULT said according to the recent court decision,
an expense will be associated with triggering aggravators. This
legislation imposes ranges so a judge, in order to impose a
longer sentence, has a range. If the judge lives within that
range, he won't have to trigger additional jury action. He said
no one knows whether that would be enough to offset what might
have been a higher range reached with aggravators. He said one
must look at striking a balance and noted the current court
cases have triggered actions that will cost; SB 56 is attempt to
mitigate those costs.
8:55:07 AM
SENATOR GUESS asked if Senator Therriault was saying that a zero
sum gain is likely because some department may see increases
while others see decreases.
SENATOR THERRIAULT agreed but said the same argument can be made
for each department. He explained that if the court had to go
through a jury for an aggravator to get a longer sentence, the
public defender and the prosecutor would have additional costs.
8:55:54 AM
SENATOR THERRIAULT then said, "So it is how we balance the
scales in totality but you also have the same argument going on
with each individual player in the system too and have the
scales remained balanced within their own department?"
8:56:14 AM
SENATOR GUESS asked if that would be the case with DOC as well.
SENATOR THERRIAULT noted that Ms. Parker could speak to the two
zero fiscal notes from DOC.
8:57:02 AM
CHAIR SEEKINS said he was not willing to say that just because
judges will be allowed to use a wider range, they will give
inappropriate sentences. He thought the judicial branch
understands the necessity of fitting the punishment to the crime
and of the fiscal situation of Alaska.
SENATOR THERRIAULT pointed out that the committee also adopted
the letter of intent, which tells the court that the legislature
does not expect a jump across the board of longer sentences. He
noted that the committee has also heard testimony that minimum
sentences are too high and the judiciary would like to make
those smaller.
8:58:40 AM
SENATOR FRENCH said he likes the bill - his concern is only
about the fiscal note and is from his personal experience. He
believes that reality dictates increased costs from longer jail
terms.
CHAIR SEEKINS said the intent is to give judges the authority to
mete out an appropriate sentence with an appropriate amount of
probation supervision.
9:00:07 AM
SENATOR THERRIAULT moved to adopt the Senate Judiciary Committee
fiscal note for the public defender's office.
CHAIR SEEKINS announced that without objection, the motion
carried.
9:00:34 AM
SENATOR THERRIAULT moved CSSB 56(JUD) from committee with the
five zero fiscal notes and letter of intent.
SENATOR FRENCH objected and said that after re-reading the
Blakely decision, he does not believe it requires the ranges,
although he believes that providing for a range in sentencing is
a good solution. He asked whether DOL believes that the Blakely
decision requires ranges.
9:01:38 AM
MS. SUSAN PARKES, Deputy Attorney General, Department of Law,
said the Blakely decision does not require this particular
solution. DOL discussed many options with legislators, one being
to impose high sentences and mitigate down. DOL was looking for
a balance within the legal constraints of Blakely.
SENATOR HUGGINS asked if this legislation was modeled after
legislation adopted by the Kansas legislature.
MS. PARKES said it is similar to the Kansas model. She attended
a seminar about sentencing during which a presentation about
Kansas was given. Kansas was the only state that had gone to
jury findings of aggravators but it has sentencing ranges like
those in SB 56.
9:03:13 AM
CHAIR SEEKINS asked if any objection to passing CSSB 56(JUD)
from committee was maintained. With no further objection, CHAIR
SEEKINS announced the motion carried. He then announced a brief
recess.
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