Legislature(2013 - 2014)BELTZ 105 (TSBldg)

03/24/2014 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SJR 25 EXXON VALDEZ OIL SPILL DAMAGES/REOPENER TELECONFERENCED
Heard & Held
+ HB 47 INJUNCTION SECURITY: INDUSTRIAL OPERATION TELECONFERENCED
Heard & Held
+ HB 218 SENTENCING;AGGRAVATOR/DEPORTATION STATUS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 218-SENTENCING; AGRAVATOR/DEPORTATION STATUS                                                                     
                                                                                                                                
1:49:38 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of HB  218. "An  Act                                                               
relating  to  the  aggravating factor  at  felony  sentencing  of                                                               
multiple prior misdemeanors when  a prior misdemeanor involves an                                                               
assault on  a correctional  employee; providing  that deportation                                                               
is not  a proper factor for  referral of a case  to a three-judge                                                               
panel  for  sentencing  for  a   felony;  and  providing  for  an                                                               
effective date."  This was the  first hearing of the  bill. [CSHB
218(JUD) was before the committee.]                                                                                             
                                                                                                                                
1:50:05 PM                                                                                                                    
TOM WRIGHT,  Staff, Representative  Mike Chenault,  introduced HB
218 on behalf of  the sponsor. He said the bill  started out as a                                                               
very simple bill. After Representative  Chenault had a discussion                                                               
with  a correctional  officer in  Seward, he  was informed  there                                                               
were some  statutes that did  not cover correctional  officers in                                                               
the same manner  as police officers. Legislative  Legal found one                                                               
statute  that   did  not  include  correctional   officers  -  AS                                                               
12.55.155(c)(31),   which  covers   the  aggravating   factor  of                                                               
multiple misdemeanors. The aggravating  factor allows a judge who                                                               
is  sentencing a  person  for  a felony  conviction  to impose  a                                                               
sentence above  the presumptive range  if the defendant  has five                                                               
previous convictions for class A misdemeanors.                                                                                  
                                                                                                                                
Generally, convictions for  two crimes that are part  of a single                                                               
criminal  episode   are  counted  as  one   prior  conviction  in                                                               
sentencing. However,  there are exceptions. Current  law provides                                                               
that prior convictions for resisting  arrest, a misdemeanor while                                                               
attempting  escape, and  assault on  a peace  officer would  each                                                               
count as  a prior conviction  even though  they were part  of the                                                               
same criminal  episode. The bill  extends the same  protection to                                                               
correctional officers.                                                                                                          
                                                                                                                                
He explained that  Department of Law had a  problem extending the                                                               
same rights  to persons  in sentencing  for a  three-judge panel.                                                               
There were several cases where  the defendants requested a three-                                                               
judge panel,  citing deportation as  an issue. The  judge allowed                                                               
the defendants  to go before  a three-judge panel  for sentencing                                                               
and  the  sentences  were lessened  because  deportation  was  an                                                               
issue.                                                                                                                          
                                                                                                                                
He related  that an amendment  now provides that  the immigration                                                               
status of a  defendant convicted of a felony should  be a neutral                                                               
factor  in  imposing sentence  on  the  defendant. He  noted  the                                                               
decision to  initiate or not initiate  deportation proceedings is                                                               
made by the federal government, not  the state. He noted a letter                                                               
in   the  packets   from  the   office  of   Immigration  Customs                                                               
Enforcement (ICE)  that on  page 5  explains how  ICE comes  to a                                                               
deportation decision.                                                                                                           
                                                                                                                                
He concluded that  it is a matter of fairness  that a non-citizen                                                               
be granted different rights than  a citizen. Allowing deportation                                                               
to  be  used  in  a  sentencing  factor  creates  a  certain  and                                                               
exceptional circumstance.                                                                                                       
                                                                                                                                
REPRESENTATIVE MIKE CHENAULT,  sponsor of HB 218,  said he agrees                                                               
with  what the  Department of  Law  has brought  forward. No  one                                                               
should have more rights than of a U.S. citizen.                                                                                 
                                                                                                                                
CHAIR COGHILL  asked Mr. Svobodny  to discuss Sections 3,  4, and                                                               
5.                                                                                                                              
                                                                                                                                
1:57:09 PM                                                                                                                    
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department of Law  (DOL), Juneau, Alaska, said Mr.  Wright gave a                                                               
very good  explanation of  the bill.  He said  he wanted  to make                                                               
four  points.  The  provisions that  deal  with  immigration  are                                                               
designed to  cover neutrality, fairness, public  safety, and that                                                               
immigration/deportation  and  removal   are  subject  to  federal                                                               
jurisdiction.                                                                                                                   
                                                                                                                                
He provided  an example of  how neutrality would apply.  A person                                                               
in Nome who  emigrated from Jamaica stabbed a cab  driver and the                                                               
Jamaican  got  a  break  that  the cab  driver  wouldn't  if  the                                                               
situation  were turned.  The bill  is designed  to treat  all who                                                               
come before the courts in an equal way.                                                                                         
                                                                                                                                
SENATOR  WIELECHOWSKI said  it seems  like a  violation of  equal                                                               
protection. He asked if somebody could address that.                                                                            
                                                                                                                                
MR. SVOBODNY  deferred to Ms.  Black to answer. He  addressed the                                                               
fairness  issue. Sentencing  laws come  from the  legislature and                                                               
set  out a  list of  things to  consider in  sentencing, such  as                                                               
deterrents.  The preparatory  language  says it's  being done  to                                                               
make sentencing  fair and equal  among all persons. The  court is                                                               
supposed  to  look  at  restitution  and  treating  victims  with                                                               
dignity  and  respect  during  sentencing.  He  said  immigration                                                               
status isn't a factor.                                                                                                          
                                                                                                                                
He addressed public safety. He  used the previous example to make                                                               
a point  that when the  three-judge panel  considered sentencing,                                                               
they consider public safety.                                                                                                    
                                                                                                                                
He  explained that  deportation  is a  fundamental federal  issue                                                               
beyond the  control of the  state. He noted that  President Obama                                                               
yesterday  said there  would be  fewer deportations,  which is  a                                                               
change  in  the  rules.  The   National  Immigration  Law  Center                                                               
believes   that  the   President  and   ICE  have   extraordinary                                                               
discretion in deportation matters.                                                                                              
                                                                                                                                
2:08:27 PM                                                                                                                    
SENATOR DYSON commented that prosecutors  will often plead down a                                                               
case. His  understanding was that  the aforementioned  person had                                                               
been in  the U.S. for  some time and  had served in  the military                                                               
with great distinction.  He imagined  the other side of the story                                                               
was that  the judges thought his  military service ought to  be a                                                               
mitigating factor.  If that  was true, he  wondered if  the state                                                               
ought   to  do   more   in  letting   courts  decide   mitigating                                                               
circumstances.                                                                                                                  
                                                                                                                                
MR. SVOGODNY opined  that PTSD and FASD make  sense as mitigating                                                               
factors  and if  the  legislature decides  to make  distinguished                                                               
service a mitigating factor that  is fine, but when a three-judge                                                               
panel is just guessing, it isn't acceptable.                                                                                    
                                                                                                                                
2:12:29 PM                                                                                                                    
MR. WRIGHT  highlighted a February  11 memo from Mr.  Svobodny to                                                               
Representative Chenault  that wasn't  meant to  be a  legal memo.                                                               
Some of  the testimony in House  Judiciary treated it as  a legal                                                               
treatise and it is not.                                                                                                         
                                                                                                                                
2:13:35 PM                                                                                                                    
MARGARET  STOCK, representing  herself,  Anchorage, Alaska,  said                                                               
she's an attorney  who practices in the area  of immigration. She                                                               
represents  deported military  veterans  and they  are not  often                                                               
allowed reentry. Usually, they are  deported under a particularly                                                               
harsh section of the law.                                                                                                       
                                                                                                                                
She  described Mr.  Svobodny's statement  that  the President  is                                                               
changing  the  immigration law  startling,  because  it can't  be                                                               
done. She  suggested he Google  "deport veterans"  to understand.                                                               
She also questioned what a memo  from the Department of Law would                                                               
be if  it isn't  a legal  memo. She  cited other  inaccuracies in                                                               
Department of Law's position on this matter.                                                                                    
                                                                                                                                
MS. STOCK  stated support  for HB  218 as  originally introduced,                                                               
but not with the anti-immigrant  amendment that the Department of                                                               
Law suggested.  It will  disrupt the  neutrality and  fairness of                                                               
the law.  It says these  people can't  go to a  three-judge panel                                                               
because  they're foreign  born.  What this  does  is create  more                                                               
unfairness  in  the law.  The  amendment  was designed  to  treat                                                               
foreign-born people differently.                                                                                                
                                                                                                                                
She  reiterated  that  there was  neutrality  before  the  recent                                                               
amendment was introduced.                                                                                                       
                                                                                                                                
2:21:14 PM                                                                                                                    
CHAIR COGHILL thanked  Ms. Stock for her work and  service to her                                                               
country.                                                                                                                        
                                                                                                                                
SENATOR DYSON said he was startled  to hear her say a naturalized                                                               
citizen could lose their citizenship.                                                                                           
                                                                                                                                
MS.  STOCK said  there are  two provisions  resulting in  loss of                                                               
citizenship  for   those  who  earn  their   citizenship  through                                                               
military  service. One  is if  five years  of honorable  military                                                               
service  is not  met,  a  person can  be  denaturalized and  then                                                               
deported.                                                                                                                       
                                                                                                                                
SENATOR DYSON said that information was helpful.                                                                                
                                                                                                                                
MS. STOCK  said she  would address in  writing further  errors in                                                               
the Department of Law's latest memo.                                                                                            
                                                                                                                                
2:25:23 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration   (DOA),    discussed   the    three-judge   panel                                                               
application and  unduly harsh  consequences, which  separates the                                                               
case  from a  valid equal  protection argument.  The Constitution                                                               
says  that community  condemnation, restitution,  and reformation                                                               
are the  goals of  the criminal justice  system. When  viewed too                                                               
narrowly,  you run  the risk  of unfair  proceedings. Presumptive                                                               
sentences  are designed  to  allow  departures when  appropriate,                                                               
based upon the full range of collateral consequences.                                                                           
                                                                                                                                
CHAIR  COGHILL  mentioned  Section  4  and  asked  how  the  non-                                                               
statutory mitigators would apply under the presumptive range.                                                                   
                                                                                                                                
MR.  STEINER  explained that  "if  you  plead  and prove  a  non-                                                               
statutory mitigator, then you would  potentially get the referral                                                               
to the three-judge  panel." It would have to be  re-proven to the                                                               
panel and then show that  the departure is appropriate. There are                                                               
three  hurtles  in  getting a  departure  below  the  presumptive                                                               
range.                                                                                                                          
                                                                                                                                
2:30:29 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked what other states  procedures are for                                                               
mitigating factors.                                                                                                             
                                                                                                                                
MR.  STEINER said  he didn't  know;  sentencing law  is unique  -                                                               
ranges and presumptions are unique.                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI requested  information about  the mechanics                                                               
for getting to a three-judge panel.                                                                                             
                                                                                                                                
MR. STEINER  said there are  two ways: a  non-statutory mitigator                                                               
and the argument that the sentence is manifestly unjust.                                                                        
                                                                                                                                
2:32:36 PM                                                                                                                    
ANN  BLACK,   Assistant  Attorney  General,   Criminal  Division,                                                               
Special Prosecutions  and Appeals, Department of  Law, Anchorage,                                                               
Alaska,  said  with regard  to  the  position  that the  bill  is                                                               
injecting  bias  or  lack  of  neutrality  into  sentencing,  Mr.                                                               
Svobodny was  accurate regarding  a person's  immigration status,                                                               
which is valid  under U.S. immigration law. It's  a federal issue                                                               
and  isn't mentioned  in the  state constitution  discussing what                                                               
the appropriate factors are when  dealing with the administration                                                               
of  justice  in   Alaska.  She  said  in   Alaska,  the  criminal                                                               
administration  of  justice  under   Article  1,  Section  2,  is                                                               
governed by the principles of  protecting the public by enforcing                                                               
community  condemnation  of  the  offender,  by  considering  the                                                               
rights  of  crime  victims,  by  ensuring  restitution  from  the                                                               
offender, and reformation of the offender.                                                                                      
                                                                                                                                
She continued to  say that this body  codified additional factors                                                               
found  in   AS  12.55.005  including   the  seriousness   of  the                                                               
defendant's  present  offense,  the  defendant's  prior  criminal                                                               
record,  and likelihood  of rehabilitation,  the need  to confine                                                               
the defendant, the  circumstances of the offense  itself, and the                                                               
extent to  which the  defendant harmed  or endangered  victims or                                                               
public safety.  Also considered are  the effects  sentencing will                                                               
impose of  deterring the defendant,  as well as other  members of                                                               
society, community condemnation in  the effort to reaffirm social                                                               
norms, and restoration  of the community and  the victim. Nowhere                                                               
is there any reference to federal  policy on any topic, let alone                                                               
immigration.                                                                                                                    
                                                                                                                                
She concluded  that the bill "gets  us back to the  foundation of                                                               
criminal administration  in Alaska."  By doing that,  it advances                                                               
this  body's stated  goal in  creating  a presumptive  sentencing                                                               
scheme,  which  is   to  ensure  that  there   is  not  disparate                                                               
sentencing. She  said Mr.  Svobodny noted two  cases that  are an                                                               
excellent  example   of  showing   how  considering   a  person's                                                               
immigration status results in disparate  sentencing. She used the                                                               
State vs. Silvera  case as an example of an  aggravated felon who                                                               
avoided  deportation because  he  did not  receive a  presumptive                                                               
term sentence.  It highlights  why the state  needs to  allow the                                                               
federal system to enforce its own laws.                                                                                         
                                                                                                                                
She maintained that  Alaska judges and district  attorneys do not                                                               
have  the  resources  or  time   to  become  experts  on  federal                                                               
immigration law. The way the  law currently stands, Alaska judges                                                               
are  in the  position to  be making  extremely weighty  decisions                                                               
that  affect,  not  only an  individual  defendant's  ability  to                                                               
remain in  this country,  but also affect  public safety  and the                                                               
rights  of  crime victims.  This  bill  would prevent  that  from                                                               
happening.                                                                                                                      
                                                                                                                                
2:41:25 PM                                                                                                                    
MS. BLACK  addressed the  equal protection  issue. She  said when                                                               
the  court  looks  at  whether   or  not  a  law  violates  equal                                                               
protection or  due process, the  law has to be  narrowly tailored                                                               
to  achieve  a  legitimate  purpose. Protecting  the  public  and                                                               
ensuring  victim   rights  are  compelling  state   purposes.  In                                                               
addition,  the court  always looks  to  the class  that is  being                                                               
affected  by the  law. There  has been  some indication  that the                                                               
class should  be those  who are subject  to harsh  consequences -                                                               
those   who  are   potentially  subject   to  deportation.   But,                                                               
throughout  its history,  the court  of  appeals, when  assessing                                                               
whether or  not there is  an equal protection  violation, doesn't                                                               
look at  the specific  details of  an individual  defendant, they                                                               
look   at  broader   categories.  In   this  instance   regarding                                                               
sentencing law,  the courts have  already upheld  the presumptive                                                               
sentencing laws  and when they did  so, they looked to  the level                                                               
of  felony classification  as the  classification.  She used  all                                                               
class A felonies as an example.                                                                                                 
                                                                                                                                
2:45:19 PM                                                                                                                    
She  discussed military  personnel  who were  deported. She  said                                                               
Senator  Dyson  was  correct  in  pointing  out  that  they  were                                                               
required  not  to engage  in  misconduct.  She pointed  out  that                                                               
honorable  service  is required  to  earn  U.S. citizenship.  The                                                               
Alaska legislature  must ensure  that its citizens  are protected                                                               
and that military  personnel brought before a  court will receive                                                               
just and equal treatment by the  court. She concluded that HB 218                                                               
would ensure that that happens.                                                                                                 
                                                                                                                                
2:46:51 PM                                                                                                                    
CHAIR COGHILL said  the argument is well laid out.  He listed the                                                               
questions he  would like to explore  and stated he would  hold HB
218 in committee for further consideration.                                                                                     
                                                                                                                                

Document Name Date/Time Subjects
SJR 25_2006_Demand_Ltr_PressRelease.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Court EVOS ruling 2-15-12.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Department of Justice and Department of Law Joint_FactSheet.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Exxon Aims to Bail on Payments for Valdez Damage.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Letter of Support_Steiner.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Reopener Restoration Plan June 1, 2006.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Reopener_Demand_Letter.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Restoration Plan_Exxon Valdez Oil Spill Trustee Council.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_Sponsor Statement.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_State of Alaska and Department of Interior Press Release.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_US Fish and Wildlife FactSheet.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR 25_USGS Poster.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
SJR_25_Judge Considers Exxon Valdez Reopener Clause.pdf SJUD 3/24/2014 1:30:00 PM
SJR 25
Correctional Officers' Memo-Legal.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
APOA Letter of Support.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
AS 12.55.155.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Law Memo on Sentencing.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Margaret Stock Follow up Testimony.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Police Chiefs Letter of Support.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Response to Comments on AG Memo.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
Sponsor Statement - CSHB 218(JUD).pdf SJUD 3/24/2014 1:30:00 PM
HB 218
U.S. Immigration & Customs Enforcement Memorandum.pdf SJUD 3/24/2014 1:30:00 PM
HB 218
HB 47 Letter of Support - Resource Development Council.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB 47(JUD) Sponsor Statement.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47 - Explanation of Changes.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47(JUD) Sectional.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
CSHB47(JUD) Version Y.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Alaska Rules of Procedure - Rule 65(c).pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Dept. of Law - Overview of Injunctions.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Letter of Support - Council of AK Producers.pdf SJUD 3/24/2014 1:30:00 PM
HB 47
HB 47 Letter of Support - Doyon.pdf SJUD 3/24/2014 1:30:00 PM
HB 47