Legislature(1997 - 1998)
02/04/1997 03:38 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 67 TRUTH IN SENTENCING DUE TO TECHNICAL DIFFICULTIES, SENATOR HALFORD'S TESTIMONY WAS NOT RECORDED. 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 imposed. 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 consuming. 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 sentence. 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 testimony. 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 determined. 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.