Legislature(1999 - 2000)

03/08/1999 01:35 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         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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