Legislature(1997 - 1998)

02/04/1997 03:38 PM STA

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

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