Legislature(2005 - 2006)HOUSE FINANCE 519
02/16/2005 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 56 | ||
HOUSE CS FOR CS FOR SENATE BILL NO. 56(JUD)
An Act relating to criminal law and procedure, criminal
sentences, and probation and parole; and providing for
an effective date.
1:43:03 PM
Co-Chair Meyer MOVED to ADOPT Amendment #1, 24-LS0308\S.13,
Luckhaupt, 2/14/05. (Copy on File). Co-Chair Chenault
OBJECTED for the purpose of discussion.
SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, advised that Amendment #1 was written to
correct a drafting oversight. In the House Judiciary
Committee, amendments were drafted to insure that judges
could still give suspended imposition of sentences for first
time offenders convicted of a "B or C" felony offense. That
option allows the sentence to be taken off their record if
all court orders are complied with. The manner in which the
original bill was drafted, it appeared fixed, however, Mr.
Luckhaupt from Legislative Legal discovered some language
problems. The amendment insures that current practice will
continue with the legislation. Ms. Parks urged support of
Amendment #1.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, Amendment #1 was adopted.
1:45:45 PM
Co-Chair Meyer MOVED to ADOPT Amendment #2, 24-LS0308\S.4,
Luckhaupt, 2/15/05. (Copy on File). Co-Chair Chenault
OBJECTED.
DOUG WOOLIVER, ADMINISTRATIVE ATTORNEY, ALASKA COURT SYSTEM,
stated that the Alaska Court System supports Amendment #2 as
it places the position for review back into the Court of
Appeals. It is that Court that resolves all other issues
associated with criminal appeals. He pointed out that
adoption of the amendment would turn the fiscal impact into
an indeterminate note.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTIONS, Amendment #2 was adopted.
1:47:19 PM
AT EASE: 1:47:27 PM
RECONVENE: 1:48:25 PM
1:48:33 PM
Vice-Chair Stoltze MOVED to ADOPT Amendment #3, 24-
LS0308\S.10, Luckhaupt, 2/16/05. (Copy on File).
Representative Weyhrauch OBJECTED.
Vice-Chair Stoltze stated that it was his intent to reflect
a more appropriate sentence for the habitual and repeating
sex offender. He thought that the "Three Strikes Your Out"
bill would have covered the concern; however, sentencing
information demonstrates that sentencing is more complicated
than imagined. He requested that the Department of Law
discuss the impact of Amendment #3.
Ms. Parks advised that Amendment #3 would raise the maximum
sentence for an unclassified sex offense from 40 years to 99
years. She explained that the amendment would change the
second piece of the current range for someone who was
convicted of an unclassified sex offense, sexual assault of
stst
the 1 degree, or sexual abuse of a minor in the 1 degree
to 99-years. Amendment #3 would make it a "mandatory 99-
year sentence" and that the judge would have not any
discretion.
Ms. Parks pointed out that the 3-strike provision referenced
by Vice Chair Stoltze is limited. What it says is that if
someone is convicted of an unclassified felony offense and
if they have been previously convicted of two or more
serious felonies, the range then becomes between 40 to 99
years. The difference between what Vice Chair Stoltze is
proposing is that a prior sex felony could be classified as
a B or C felony offense. Essentially, someone who commits
an unclassified offense and has a previous B or C felony
record offense would not be subject to the 3 strikes
provision but rather to the 30 - 40 years. The amendment
catches those people whose prior offense might have been a
lower range.
Representative Croft pointed out that the amendment would
set the maximum at 99 years. He had expected that the
second part would have been 30 to 99 years and asked if it
was the intent to set an absolute top. Vice-Chair Stoltze
replied that it was.
Representative Hawker understood that the original intent of
the bill was that the range needed fixing from actions taken
by the Supreme Court. He believed that the proposed change
would result in constitutional problems.
Ms. Parks responded that if the sentence was set at the
maximum, it could not be aggregated. She voiced concern and
caution in setting the 99-year maximum, as a policy call.
It should be clearly stated why the change is being made as
it is the maximum penalty afforded anyone. It would only
st
apply to murder in the 1 degree of if there were a finding
that the victim has been tortured. She stressed that it
must be made clear that the sentence is the result of prior
sex history warranting that sentence.
Representative Hawker asked if the 99-year maximum sentence
would withstand the courts own scrutiny. Ms. Parks advised
that the Department has not had a lot of time to research
the amendment, but she thought that there are other states
that have those kinds of sentences for sexual predators.
She thought that if it was a legislative call, it could be
upheld.
Representative Kelly believed that the Judiciary committees
should handle those types of changes. Co-Chair Meyer
agreed.
Representative Kelly asked if it were a range, would the
same record be made. Ms. Parks noted that a range would be
easier to justify, as it would give the judge some
discretion in exceptional cases.
Representative Kelly maintained that he would be more
comfortable maintaining the current range or sending the
bill back to the House Judiciary Committee.
Co-Chair Meyer acknowledged that these kinds of crimes are
some of the worst crimes that happen and that the 99-year
sentence would be a very stiff penalty. He thought that the
increased jail time would increase the fiscal note.
Ms. Parks stated that the Department of Law was attempting
to research the numbers associated with the bill. Both the
Department of Corrections and the Department of Law are
tracking it and that the number should not be huge. The
Department will have to process whatever the potential
penalty is. She did not see a fiscal impact on the
Department of Law.
Vice-Chair Stoltze stated that it was not his intent to
block passage of the legislation. He acknowledged that it
is an important bill and that he did not want to set it
back. He pointed out the inconsistencies with thresholds
that are too low. He agreed that the matter is very serious
and that he is awkward in his attempt and that he did not
want to be inappropriate. Vice Chair Stoltze asked the
sponsor what would be a reasonable number.
1:59:44 PM
HEATHER BRAKES, STAFF, SENATOR GENE THERRRIAULT, asked to
defer to the Department of Law.
Vice-Chair Stoltze asked to defer to the sponsor.
2:00:31 PM
REPRESENTATIVE RALPH SAMUELS, SPONSOR OF THE HOUSE BILL,
suggested that a little more thought and research should go
into the amendment. He pointed out that Amendment #4
appeared more reasonable.
Vice-Chair Stoltze WITHDREW Amendment #3.
2:01:46 PM
Vice-Chair Stoltze MOVED to ADOPT Amendment #4, 24-
LS0308\S.12, Luckhaupt, 2/16/05. (Copy on File). Co-Chair
OBJECTED.
Representative Croft acknowledged that Amendment #4
accomplished what Vice Chair Stoltze intended. He
questioned why the change to "99-years" on Page 6, Line 12
when it previously was maxed out at "50-years". Vice-Chair
Stoltze explained that "99-years" was the largest possible
sentence.
Representative Croft did not know if the courts had the
power to go to a "99-year" sentence even in the most extreme
cases; under the amendment it would stay between "35-50"
years. Ms. Parks stated that the maximum could be sent at
99 years and still have the range be 35-50 years. If it was
an extremely aggravated case for someone that already had
other multiple felonies and a criminal history over
vulnerable victims, the situation could have the judge/jury
recognize a maximum sentence.
Representative Croft questioned why in the original bill,
had it been set at "40-years". Ms. Parks advised that it
currently is set at 40 and that the bill had not been
drafted to increase any of the maximums already established
in statute.
2:05:02 PM
Representative Hawker indicated for the record that it would
be difficult for him to take a position on the amendment,
noting that he was not an attorney. He maintained that he
would not impede passage of the amendment but was "troubled"
passing an amendment producing such strong consequences
without a lot of research.
Co-Chair Meyer acknowledged that was valid. Representative
Samuels commented that he was "okay" with Amendment #4,
which would address discretion necessary for the few number
of felons that fall into that "box". He noted the he
preferred Amendment #4 to #3.
Ms. Brakes stated that she had not had an opportunity to
discuss the policy of the amendment with Senator Therriault.
She requested to defer to Representative Samuel's comments.
Representative Hawker inquired if the proposed change were
made, would there be criminal statute system consequences.
Ms. Parks did not think so but offered to provide a research
on that.
Co-Chair Meyer WITHDREW his OBJECTION to Amendment #4.
Representative Weyhrauch OBJECTED to Amendment #4.
2:09:29 PM
Representative Weyhrauch stated that there was too much
"feeling" associated with the proposed amendment and that
there should be more legal analysis. He also questioned the
fiscal impact to the bill.
AT EAST: 2:10:31 PM
RECONVENE: 2:14:41 PM
2:14:46 PM
Vice-Chair Stoltze MOVED to WITHDRAW Amendment #4. There
being NO OBJECTION, it was WITHDRAWN.
Vice-Chair Stoltze MOVED to ADOPT Amendment #5, 24-
LS0308\S.11, Luckhaupt, 2/16/05. (Copy on File). Co-Chair
Meyer OBJECTED for purposes of discussion.
2:15:52 PM
Vice-Chair Stoltze pointed out that the group of felons who
the amendment affects is narrow. Representative Samuels
voiced support for Amendment #5, which would maintain the
30-40 year range as in the original bill for any felon with
two prior sex felony convictions, however, would allow the
State to go up from the 40-year sentence for the more
serious convicted felons. He maintained that such a
sentence would be for that "rare and bad person" and would
provide the State a little more sentencing power.
Ms. Parks noted that the Department of Law supports the
amendment, require the finding of aggregators and would
provide the judge an opportunity to go up to the 99-years.
Co-Chair Meyer WITHDREW his OBJECTION. There being NO
further OBJECTION, Amendment #5 was adopted.
2:18:24 PM
Representative Croft MOVED to ADOPT Amendment #6, 24-
S0308\S.9, Luckhaupt, 2/16/05. (Copy on File). Co-Chair
Meyer OBJECTED.
Representative Croft commented that the amendment was
brought forward to help determine the jurisdiction of and
the discretion in the trial court, when the appellate court
reviews going beyond the aggravated sentencing. He
acknowledged the improvements made by the bill, however, he
thought that the victim should have some say in objecting to
a sentence that it too low or one that goes beyond the
range.
2:21:14 PM
Representative Croft continued, the amendment would provide
a check or a "worry" for the prosecutors and the judges.
There are now certain statutes in places that encourage the
prosecutors to work with the victims. Representative Croft
claimed that it is not as successful to "mandate things, as
it is to make consequences for actions". He saw the
amendment providing a practical effect for encouraging the
prosecutors and the judges to stay involved. He asked if
there were "serious" problems with that idea.
Ms. Parks remarked that Representative Croft's amendment
would be giving a right without a remedy. There is an
Alaska Supreme case law, which states that if a defendant is
sentenced and the sentence is final, and if the defendant
does not appeal that sentence, the sentence cannot be
reduced. Basically, giving victims the right to appeal will
not have an affect on the sentence. It cannot be increased
for victims. The only time that could happen is if there
was an illegal sentence or the defendant appealed. Ms.
Parks voiced concern about the amount of resources that it
would cost the victims for the "false hope".
Ms. Parks reiterated that the amendment would only
accomplish additional work for the Court System and the
Department of Law.
Mr. Wooliver remarked that regarding the fiscal impact, he
had no idea how many cases would result in that scenario and
did not know the number of petitions for review that the
courts would likely see.
2:25:23 PM
Mr. Wooliver advised that would determine whether there
would be fiscal impact resulting from the bill.
2:26:06 PM
Representative Croft commented that "who defends" is an
interesting concept and thought that there could be a
practical affect. He believed that there could be a better
motivation. Representative Croft pointed out that another
bill, HB 55, addresses victim's issues. He pointed out that
no one was against victim's rights but that "practical
difficulties" are always brought up. He thought that the
amendment could provide the victim the check. He asked if
it would be more comfortable for the Committee to defer this
discussion.
2:28:47 PM
Representative Samuels said he agreed with the sentiment
behind the bill. Historically, he pointed out there have
been access issues of victims to the courts. Arguments have
always been brought forward and yet they have not been
practical. The State of Alaska continues to move forward on
these issues. He stressed that the Legislature must work
with the Department of Law, the public defender and the
Court System to make sure that more problems will not be
caused by the legislation. He voiced his appreciation for
the insights that Representative Croft had brought to the
bill.
2:30:48 PM
Representative Croft noted that he would work on the concept
of the amendment and bring it forward at a later date.
Representative Croft WITHDREW Amendment #6.
Representative Foster MOVED to report HCS CS SB 56 (FIN) out
of Committee with individual recommendations. There being
NO OBJECTION, it was so ordered.
HCS CS SB 56 (FIN) was reported out of Committee with a "do
pass" recommendation and with zero note #1 by the Department
of Law, zero note #4 by the Department of Public Safety, two
new zero notes by the Department of Corrections and two new
indeterminate notes by the Department of Administration.
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