Legislature(2001 - 2002)
05/04/2001 05:22 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 172-THERAPEUTIC COURTS/ SUPERIOR COURT JUDGES
CHAIRMAN TAYLOR announced a committee substitute and asked whether
Mr. Wright had reviewed the amendment.
THOMAS WRIGHT, Staff to Representative Brian Porter, reported no
problem with the proposed change.
CHAIRMAN TAYLOR explained that on page 2 of the amended version it
is established that the pilot sites for the Anchorage and Bethel
therapeutic courts shall be in effect for three years as in the
original bill but the activity of the two courts has been limited
to the Anchorage and Bethel venue districts.
Venue districts are geographic boundaries that act as a guideline
to determine in which superior court cases should be filed and
are not the same as judicial districts.
TAPE 01-29, SIDE B
SENATOR THERRIAULT asked whether the change was an attempt to deal
with the issue of someone in the larger judicial district trying to
preempt judges so they are able to access the benefits of the
therapeutic court as far as sentencing.
CHAIRMAN TAYLOR responded that the primary concern was equal
protection. The cases evaluated had three things in common. All
were time limited, all were experimental and all had geographic
boundaries.
The amendment also intends that mandatory minimums would no longer
be waived. Rather, it is provided that the court may find that the
rigorous nature of the sentence imposed under the therapeutic court
is equal to or exceeds that imposed under mandatory minimums.
The changes would provide for equal protection and still maintain
the original thrust of the program.
MR. WRIGHT reported no objection to the amendment.
CHAIRMAN TAYLOR directed attention to page 4, lines 19-29 of the
work draft beginning with "Imprisonment". The section replaces the
portion dealing with possible suspension of the imposition of
sentencing.
MR. WRIGHT said he would have to defer to the department of law for
a comment.
Number 2169
MR. DEAN GUANELI, Department of Law, said it appears as though the
change requires that a sentence be imposed according to current law
in 12.55 but after some period of time, not limited by rule 35 the
court can entertain a motion for reduction of sentence. That motion
would be based on the same considerations that were in the previous
version of the bill.
Line 25 of the work draft, reading "(1) may not reduce the sentence
below the mandatory minimum sentence for the offense unless the
court finds that the defendant has successfully complied with and
completed the treatment plan and that treatment plan was in its
totality as rigorous as the minimum period of imprisonment," was in
the previous version and is acceptable.
However, the second portion, "(2) may consider the defendant's
compliance with the treatment plan as a mitigation factor under AS
12.55.155." may present difficulty. Under the previous version, the
court had the option of suspending the entire prison sentence.
Because mitigating factors would only allow a reduction of
imprisonment to be cut to half of the presumptive term rather than
suspended altogether he questioned the practical effect. The crimes
this court would typically hear would be first offense, class C
felonies in which mitigating factors could go to zero.
CHAIRMAN TAYLOR agreed and said the additional language anticipates
inpatient treatment programs and the Supreme Court has ruled that
time spent in such a program equals time spent in jail. First
offender, class C driving while intoxicated (DWI) would have the
opportunity to have their sentence reduced to zero. Although there
may be some benefit to having jail time that must be served, there
would be individual inducement to going into the program if
enrollment reduced jail time.
MR. GUANELI didn't see any problems but wanted to characterize some
of the testimony heard in other committees.
First, some judges felt that rather than imposing and then reducing
sentences, they had more leverage over an offender if they could
wait to impose sentence until they were sure the offender was
complying with certain conditions. In contrast, some felt that
imposing a sentence and reducing it later gives the offender a
clear idea of how much they have to gain.
From the prosecutor's standpoint, there was no objection but the
public defender was of the opinion that a large incentive was
needed to convince some clients of the benefits of going through
the long and intense treatment.
CHAIRMAN TAYLOR reported that there is adequate incentive available
to a superior court judge under a felony count. He thought there
was a lot of incentive for most to be in a program whereby a
minimum mandatory could be reduced to nothing.
Number 1933
MR. BLAIR McCUNE, Alaska Public Defender Agency, had not seen a
copy of the changes but he had concerns. Language on page 4 dealing
with the judge withholding the pronouncement of the period of
imprisonment, "kind of sets things off." He did not understand the
reference to rule 35 if the sentence is not actually pronounced.
Reference to mitigate in 12.55 is troubling because the mitigating
factors are narrowly drawn. To his knowledge, there is no
mitigating factor that he knows of for participating in a
therapeutic court. In fact, most mitigating factors would not
apply.
CHAIRMAN TAYLOR responded that the bill "specifically authorizes
the court to consider the offenders compliance with the treatment
program as a mitigating factor under Alaska Statute 12.55.155."
MR. McCUNE said that does not fit in any existing list of
mitigating factors.
CHAIRMAN TAYLOR said, "It doesn't, we're adding it to it in a
special piece of legislation just for this court just in these
types of circumstances. That's why we structured it the way we did.
You get into therapeutic court you get an extra ticket to get out
of jail."
MR. McCUNE said another problem is that mitigating factors refer to
felony offenses and may reduce presumptive terms. Mitigating
factors are listed in but 12.55.155 and they do not apply to
misdemeanor offenses.
CHAIRMAN TAYLOR said they were not talking about misdemeanor
offenses. Rather, they were talking about felony cases in the
superior court.
MR. McCUNE thought some misdemeanor defendants with a previous,
non-felony, DWI could still be considered because the superior
court can take jurisdiction for misdemeanors. He saw problems
associated with using reference to mitigating factors under Alaska
Statute 12.55.
His suggested language on the rigorous nature of the program as
approximating mandatory minimums was that the legislature use this
in a separate findings section, which would take care of the equal
protection questions that might be raised.
CHAIRMAN TAYLOR responded that it was placed so that the judge
would make the call as to whether is was as rigorous.
MR. McCUNE said the preference of the Public Defender Agency would
be to have it worded the way it left the House because it provides
a greater incentive. Equal protection concerns could be addressed
in a separate finding and the statute left unchanged.
In summary: He does not understand reference to rule 35. His main
concern is reference to Alaska Statute 12.55 because that is a
narrow type of action that the court could take and without
amending Alaska Statute 12.55.155 to apply to misdemeanors it would
not serve Chairman Taylor's intended purpose.
CHAIRMAN TAYLOR said he understood his concerns and asked whether
he had other questions or comments.
MR. McCUNE replied that on page 4, lines 30-31, some individuals
might not be given credit for time served and the reason that
language was included was because of language on page 4, lines, 14-
18.
CHAIRMAN TAYLOR asked which version he was referring to.
MR. McCUNE said he was looking at the L version.
CHAIRMAN TAYLOR said the committee was working on the T version.
MR. McCUNE said this was the area where there are changes made to
include rule 35 and the reference to mitigating factors.
CHAIRMAN TAYLOR asked for the reference again.
MR. McCUNE said he was referencing version L, page 4, lines 14-18
and page, 4, lines 30-31. Lines 30-31 make it so that a defendant
may not get credit for time served but lines 14-18 give them the
opportunity to lose mandatory minimum times.
CHAIRMAN TAYLOR said the language on page 4, lines 14-18, of his
version refer to probation.
MR. McCUNE said he was referring to the last sentence on paragraph
(i) that begins with "within 30 days after entry of the plea".
CHAIRMAN TAYLOR said his paragraph (i) reads, "If the defendant is
terminated from therapeutic court," and asked whether that was what
he was talking about.
MR. McCUNE responded that he didn't have a paragraph that began
that way.
CHAIRMAN TAYLOR said the two versions were dissimilar.
MR. WRIGHT interjected that his L version was the one coming from
House Judiciary but changes were made in House Finance and there
was also an amendment adopted on the floor of the House.
CHAIRMAN TAYLOR agreed that the version coming from the House was
/O.a.
MR. McCUNE had a different version altogether.
SENATOR THERRIAULT thought the working version could be faxed to
Mr. McCune.
MR. McCUNE provided his fax number.
CHAIRMAN TAYLOR directed a copy to be sent and announced they would
hold the bill until later in the meeting.
MR. McCUNE said perhaps Mr. Guaneli understood his concerns about
the reference to mitigating factors and AS 12.55.
MR. GUANELI responded that he understood the point but he was not
sure about the concern. Perhaps the mitigating factors under AS
12.55.55 don't apply to misdemeanors but subsection (1) does apply
and says, "you can reduce it below the mandatory minimum if these
other things occur." He thought the reference to mitigating factor
is only a limitation when there is a presumptive term and you want
to limit how much the judge can reduce that term. It is not a
limitation in a misdemeanor case because presumptive terms do not
apply to misdemeanors. With this in mind, he does not agree with
Mr. McCune's concerns.
CHAIRMAN TAYLOR said he was pleased to hear that because it was not
his intention to obstruct but to provide the court with the
discretion to reduce the term to zero.
Number 1185
MR. McCUNE said he missed some of the changes.
CHAIRMAN TAYLOR responded that it would be hard to follow the
changes without having the document to examine.
He would give Mr. McCune time to examine the T version and get his
comments on record before adjournment.
SCS CSHB 172(JUD) was held until later in the meeting.
CHAIRMAN TAYLOR asked Mr. Blair McCune whether he had reviewed the
T version of HB 172.
MR. McCUNE said he had reviewed the T version and had no particular
objections but did have some language changes. On page 4, line 27
he suggested striking "was in its totality as rigorous as" and
substitute "approximated the severity of". Then on line 29, after
"mitigating factor" strike "under AS 12.55.155" and substitute
"allowing a reduction of a sentence pursuant to 12.55.155(a)."
The first language change would make it easier for judges to apply
the law. Criminal law frequently speaks of severe and lenient
sentences and "approximated" gives the judge more interpretive
leeway then the original language. The reasoning behind the second
change is rooted in sections (e), (f), and (g) at the end of AS
12.55.155 requiring clear and convincing proof of any mitigating
factor. Limiting reference to just section (a) solves any tendency
of the court to ask whether clear and convincing proof is needed
that something is a mitigating factor.
CHAIRMAN TAYLOR asked Mr. Wright whether he understood and agreed
with the changes.
MR. WRIGHT thought the suggestions were appropriate.
SENATOR THERRIAULT moved to adopt \T version dated 5/4/01 as the
working document. There was no objection.
CHAIRMAN TAYLOR moved to amend page 4, line 27 striking "was in its
totality as rigorous as" and inserting "approximated the severity
of" and on page 4, line 29 striking "under AS 12.55.155" and
inserting "allowing a reduction of a sentence pursuant to AS
12.55.155(a)."
There being no objection, Amendment 1 passed.
CHAIRMAN TAYLOR asked if there were other suggestions.
MR. McCUNE said they would like to see the language as it came out
of the House but if "this is what the committee is going to pass
out we appreciate the opportunity to read this over and make some
changes."
CHAIRMAN TAYLOR acknowledged the work both Mr. McCune and Mr.
Guaneli had done on the bill but in his review of the equal
protection information they submitted, he though it was essential
to have a geographic boundary, a time limitation and that all the
minimum mandatory sentences not be dropped.
He strongly supports the program and hopes it works as well as
anticipated.
The Chair asked for a motion to move SCS CSHB 172(JUD) from
committee with individual recommendations.
SENATOR THERRIAULT asked whether an impact on the fiscal notes was
anticipated because of the changes in the CS.
CHAIRMAN TAYLOR thought there would be a reduction if anything. The
bill would go to finance next and they would address this question.
SENATOR THERRIAULT apologized for his interruption and asked
whether there had been a vote on moving the bill.
CHAIRMAN TAYLOR asked for objections and there was none.
SCS CSHB 172(JUD) moved from committee.
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