Legislature(1997 - 1998)
02/04/1997 03:38 PM Senate STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 67 TRUTH IN SENTENCING
DUE TO TECHNICAL DIFFICULTIES, SENATOR HALFORD'S TESTIMONY WAS NOT
RECORDED.
SENATOR RICK HALFORD, sponsor of SB 67, explained SB 67 requires a
judge, when imposing a sentence, to explain the minimum possible
amount of time that can be served under the sentence. The current
sentencing process does not live up to the intent of the victim's
rights amendment to the Alaska Constitution. The intent of SB 67
is to require judges to notify others of the approximate amount of
prison time that will actually be served under the sentence
imposed.
SENATOR MACKIE asked if SB 67 requires a court rule change.
SENATOR HALFORD answered it does. SENATOR MACKIE questioned
whether SB 67 would limit the amount of a sentence reduction
possible for "good time." SENATOR HALFORD said it would not
restrict any sentencing criteria, it only requires a judge to
explain the amount of time that may actually be served.
Number 220
CHRIS CHRISTENSEN , General Counsel to the Alaska Court System,
informed committee members the Supreme Court has taken no position
on SB 67 but does have several concerns with the bill. As drafted
by the Division of Legal Services, SB 67 is not workable. The
Supreme Court has ruled, on several occasions, that there is very
little inherent judicial authority given to judges when imposing
sentences. In Alaska, sentencing is considered a legislative
prerogative: judges are bound by the sentencing statutes passed by
the Legislature. When a person is convicted of a felony, a
sentencing hearing is scheduled, usually several months in the
future. The Alaska Constitution requires a judge to consider a
variety of factors when imposing a sentence. Those factors
include: reformation, reaffirmation of community norms, public
safety, and condemnation of the conduct. The Department of
Corrections (DOC) prepares a presentencing report while those
factors are being considered by the judge; that report contains
background information and a criminal record. During the
sentencing hearing, the district attorney, the public defender or
private defense attorney, and victims make statements about an
appropriate sentence. With that information, the judge determines
the sentence.
MR. CHRISTENSEN explained SB 67 requires judges to state the
earliest possible release date to the day. Exact calculations are
often complicated and can take DOC up to two days to complete.
Some defendants are placed in different jails around the state,
particularly offenders originally arrested in the bush. The number
of days spent in each jail must be determined, as well as the
amount of time released on bail, disciplinary problems that
occurred while in jail, the type of offense, whether the offense
carries a mandatory, mandatory minimum, or presumptive term, and
whether consecutive or concurrent sentences are to be served. SB
67 does not recognize that a judge's statement regarding the
minimum sentence a person might serve if parole is granted becomes
part of the sentence. If the judge made an error, that error might
cause a defendant to be released earlier or later than planned; if
later, he/she may file a law suit for post conviction relief.
MR. CHRISTENSEN requested the committee to consider the following
conceptual amendments. The first amendment would change the word
"incarceration" to "imprisonment" throughout SB 67, to conform with
Titles 12 and 33. The second change would allow the judge to state
the approximate, rather than exact, time a prisoner would be
eligible for parole. He requested SB 67 make very clear that
approximate minimums stated by the judge are provided for
informational purposes only and are not part of the sentence, and
that the prisoner has no appeal right if the judge makes an error.
Number 293
SENATOR MACKIE felt SB 67 touches on an area that outrages many
people and asked why DOC calculations cannot be completed in the
amount of time that elapses between the conviction and sentencing.
MR. CHRISTENSEN explained a judge does have statutory authority to
restrict discretionary parole if the judge believes the offender
cannot be rehabilitated or that public safety would be jeopardized.
In most cases the judge has a good idea of when the person will be
eligible for parole but making the calculation to the day is time
consuming.
MR. CHRISTENSEN commented one alternative is to hold two sentencing
hearings. All parties would make statements at the first hearing.
DOC would then prepare the calculations. At the second hearing,
the judge would state the sentence on the record. That alternative
would have a tremendous fiscal impact. He explained under Alaska
statutes, judges make the initial determination in setting a
sentence, but once a person has been remanded into the custody of
DOC, it becomes the responsibility of the Executive Branch,
including the Board of Parole, to decide whether the terms of the
sentence are met and when a person is eligible for parole. Parole
is completely speculative: a judge has no idea whether the Board of
Parole will grant an early release for good time.
Number 344
SENATOR MACKIE clarified he was questioning whether it is possible
for a judge to receive the DOC calculations prior to the final
sentencing. MR. CHRISTENSEN explained the judge is not supposed to
prepare a sentence prior to the sentencing hearing. The judge is
supposed to take, and consider, statements from the district
attorney, defense attorney, and victims first. That is why two
hearings would be necessary.
SENATOR MACKIE questioned at what point the judge determines the
sentence. MR. CHRISTENSEN indicated the judge is required to state
the sentence orally, on the record, and then provide a written
judgment. The oral statement overrides if there is a discrepancy
between the oral and written statement. Once the judge has read
the presentencing report, and has received recommendations from
DOC, he/she must hear the oral arguments from the district and
defense attorneys, and the victims, prior to deciding on the
sentence.
SENATOR MACKIE asked why a judge cannot just say, "This person is
sentenced to x amount of years, with x suspended, and he/she will
serve x amount of time." That would inform the victim's family how
much of the sentence will be served.
Number 376
MR. CHRISTENSEN answered judges can set specific sentences for some
of the more serious felonies, but overall, the sentencing statutes
are extremely complex.
Number 383
SENATOR WARD asked Mr. Christensen if the calculation process
cannot be completed in two hours, but instead takes two days. MR.
CHRISTENSEN replied he has been advised by DOC that in some cases
it can be done in one hour, but other cases take up to two days.
He discussed the sentence calculation for an offender recently
convicted on nine separate counts ranging from a misdemeanor to an
unclassified felony. Each count is treated differently in the
sentencing statutes: some counts require a mandatory sentence, some
require a mandatory minimum sentence, some require presumptive
sentences, some require sentences be stacked consecutively, and
some allow concurrent sentences. The judge, being familiar with
the statutes, has a ball park figure of when the person might first
be eligible for parole. The Court System is proposing the judge
advise the victims, and others in the courtroom at the time, of the
ball park figure.
SENATOR MACKIE asked, once the judge issues the final sentence, how
much time it would take for the judge to be advised as to the exact
date the offender would first be eligible for release. MR.
CHRISTENSEN believed the statute requires the Court System to
forward the paperwork to DOC within 30 days. DOC can typically
make the calculation within 10 days to two weeks after receipt.
Once DOC completes the calculation, it sends copies to the Board of
Parole and the inmate. If a copy was sent to the Court System from
DOC, it could be attached to the sentencing judgment so that it
would be available for public review in the file.
SENATOR HALFORD asked if that information is currently available to
the public. MR. CHRISTENSEN said it is not available from the
Court System, and he was unsure whether it was available from DOC.
Number 432
CHAIRMAN GREEN asked Senator Halford if he thought this problem
could be worked out with the Court System and a resolution
presented to the Senate Judiciary Committee. SENATOR HALFORD
replied changing the term "incarceration" to "imprisonment"
throughout the bill, and adding the word "approximate" would
maintain the intent of SB 67, and avoid the trap of requiring a
second hearing. Any delay at any point in the process will cause
more heartache to family members of victims who have been terribly
abused. The delay should be avoided, but the truth about the
approximate time to be served should be available to them as soon
as possible.
Number 432
CHAIRMAN GREEN announced it was her intention to move SB 67 out of
the State Affairs Committee at this time and have a committee
substitute ready for the next committee of referral.
SENATOR MACKIE moved to remove the word "incarceration" and replace
it with the word "imprisonment" throughout SB 67. CHAIRMAN GREEN
identified the amendment as Amendment #1. There being no objection
to the motion, Amendment #1 was adopted.
The committee took a brief at ease and then took teleconference
testimony.
PAUL SWEET , testifying from Palmer, asked how a judge could
estimate the approximate length of a sentence to be served when a
person is sentenced to 133 years, but becomes eligible for release
after 16 years.
Number 458
CHAIRMAN GREEN responded SB 67 does not address the type of concern
expressed by Mr. Sweet, assuming Mr. Sweet's concern is the
reduction in time served.
SENATOR HALFORD asserted it was his intent to avoid the kind of
aberrations referred to by Mr. Sweet. The object of dealing with
truth in sentencing is to inform interested parties of what may
actually happen. One never knows what will happen on appeal, but
at least the judge can state the approximate time the offender will
actually have to serve under the sentence imposed.
MR. SWEET asked if that would apply after an appeal, at which time
the sentence is reduced substantially. SENATOR HALFORD replied it
cannot apply to an appeal; when people are represented at no cost
to themselves, they continuously appeal the case until the process
runs out. At least on appeal, the judge will be required to again
state the approximate time to be served. Every time the actual
time to be served must be stated before the victims and families,
the system will be encouraged to decide sentences that are more
representative of what the victims and families expect the
punishment to be.
SENATOR MACKIE asked Senator Halford if he has investigated whether
the DOC calculation can be made available to the Court System or
victims during the time period between the conviction and
presentencing hearing. SENATOR HALFORD responded that will add
another process that will add a burden to the Court System and a
fiscal note to the bill. Requiring an approximate amount of time
to be served be stated will avoid a second hearing and resolves the
problem. The exact date is not as important as informing people
whether the release will occur in 3 years or 6 years. The object
is to get the decision made in a timely manner and in front of the
injured parties.
SENATOR MACKIE clarified he was wondering how the victim's family
could find out the actual date of release after it has been
determined.
Number 500
MR. CHRISTENSEN replied that information is not available from the
Court System but he was unsure whether it was available from DOC.
There is a statute that allows victims to provide their addresses
to DOC so they can be notified of the release of offenders.
SENATOR MACKIE asked Senator Halford to investigate whether that
process can provide some resolution to the problem. He moved to
adopt Amendment #2:
Page 2, lines 5, 8, 23, and 26: insert the word "approximate"
prior to the word "minimum."
There being no objections to Amendment #2, it was adopted.
CHAIRMAN GREEN asked the sponsor to review Amendment #2 to ensure
the word "approximate" is inserted in all necessary places
throughout the bill for the purpose of conformity, as that is the
committee's intent.
SENATOR MACKIE moved CSSB 67 out of committee with individual
recommendations. There being no objection to the motion, CSSB 67
moved to the next committee of referral.
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