HOUSE BILL NO. 372 "An Act relating to criminal sentencing and restitution." REPRESENTATIVE FRED DYSON, SPONSOR, testified in support of the legislation. He noted that virtually all justice systems around the world have focused on restitution of the victim after public safety. He noted that there has been a tradition of paying debts to society by paying the King instead of the victim. An effort has been made to return to a focus of restorative justice and restitution of victims. He observed that the juvenile justice system is committed to the restorative justice system. The legislation places current practice in statute and allows a negotiated agreement between the victim and the perpetrator to work out restoration of the community and victim as part of the sentencing agreement. PETER TORKLESON, STAFF, REPRESENTATIVE DYSON observed that HB 372 is post-adjudication. The judge may consider letting a willing victim and defender negotiate a way, such as community service, to make the victim whole. Vermont has had stellar success in cost savings and reduced recidivism rates. He acknowledged concerns by the Department of Law regarding sentencing of potential felons. He pointed out that under lines 9 - 10 the negotiated sentence must comply with general sentencing guidelines. He stated that some people that commit technical felons, such as those that commit property fines, should be allowed to negotiate under the section. The legislation is permissive. Co-Chair Therriault questioned if discussions occurred regarding the exclusion of violent felons from the provisions. Representative Dyson stated that violent felons would be excluded. Mr. Torkelson pointed out that line 6 excludes violations under AS 11.41, which includes person to person assault and murder. Representative Phillips referred to the negotiated agreement and questioned the rationale of giving the defender the right to request negotiation. Representative Dyson gave examples of negotiations that may be presented by a defendant. Confronting the victim and apologizing is helpful in restoring the perpetrator. In response to a question by Representative Phillips, Representative Dyson noted that more than half of offenders chose to enter into an agreement and more than half of those that chose negotiation fulfill their obligation. If the agreement is not fulfilled than the perpetrator returns to the original penalty. Agreements have the force of law. Representative J. Davies questioned if the legislation limits the ability to restore costs to the "King". Representative Dyson emphasized that the community gets an opportunity to recover costs. Co-Chair Therriault observed that after an offender is convicted a fine is charged and that surcharges pertain to the fine or penalty. He clarified that the victim and the perpetrator could agree on something to make the victim whole and pay a fine to the community and that the surcharge to the state would be included. Representative Dyson agreed that surcharges would be included and added that the cost of adjudication could be included. Vice Chair Bunde clarified that the judge would monitor non- compliance. Mr. Torkelson stated that some perpetrators approach the court to negate the contract and resume the original sentence. Representative Grussendorf summarized that the legislation would resolve the civil aspect of minor criminal offenses. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW provided information on the legislation. The department is not opposed to restorative justice, but has some concerns regarding the legislation. She gave a brief history of current sentencing procedures. She observed that the main focus of presumptive sentences in the late 70's was to impose a sentence according to the offence and to provide uniformity for certain acts. She maintained that restorative justice is a bend in the road. She acknowledged that it is appropriate in certain cases and added that judges are using the process in mental health cases, substance abuse and in minor property crimes. Statutory authority is not needed for restorative justice. She expressed concern that the legislation sets parameters around the use of restorative justice. She stated that the department is concerned that restorative justice would be allowed in cases that they do not feel are appropriate such as first time unclassified felonies, first time class A felonies, and second offense class B and C felonies; this includes arson and burglaries. She maintained that these are serious crimes and questioned if a victim would be in a position to negotiate with an offender. Ms. Carpeneti stated that the department is also concerned that allowing negotiation between a victim and an offender is difficult because the victim is not in an equal bargaining position, victims are not represented. She recommended that the courts continue their current practice of slowly applying restorative justice in cases where it is appropriate without legislation. Ms. Carpeneti noted that in a victimless crime there is a question of who is the community. There would be cases where it is unclear who represents the community or what is best for the community. She summarized that the department has problems with the legislation but not with restorative justice. Co-Chair Therriault pointed out that the judge does not have to accept a negotiated agreement if he/she does not believe it is adequate punishment. Ms. Carpeneti expressed concerns regarding equality of cases where the offender has enough money to negotiate a settlement that the victim thinks is fair as opposed to the person that does not have enough money to pay for the car or the window to make the victim whole. Co-Chair Therriault questioned if judges could be relied on not to allow perpetrators to buy their way out of adequate punishment. Ms. Carpeneti responded that it would be easier for a judge to address the issue on a case by case basis. The legislation provides for mitigating factors for a negotiated fee. Representative Grussendorf questioned if the state prosecutor would not act as the victim's attorney. He asked if the legislation could require that the state agree to negotiation. Ms. Carpeneti noted that defenders have one attorney for his or her only interest. The interest of the prosecutor is divided. She agreed that the legislation could require agreement by the state. She acknowledged that there has not been a problem with the current use of restorative justice. Vice Chair Bunde summarized that the legislation is permissive and that judges can choose not to use the provisions of the law. Ms. Carpeneti agreed that the provision is permissive but emphasized that it is difficult for a judge to know if there has been intimidation. She gave the example of an older person that has been the victim of someone known to them. She stressed that victims can be fragile and afraid to speak for themselves. She noted that restorative justice is being used for cases involving mental health. She suggested amending the purposes of sentencing under AS 12.55.005. She stated that restoration to the victim and community could be added to sentencing purposes. Vice Chair Bunde observed that the judge initiates restorative law under the current practice. If the legislation is passed the victim or the offender could initiate justice. Ms. Carpeneti noted that, in Anchorage, cases are directed to particular courts where judges have adopted procedures. She suggested that the legislation would result in defense lawyers contacting victims. She pointed out that defendants often will not plea guilty unless they know what their sentence would be. She maintained that the provision is not practical due to plea negotiations. Co-Chair Mulder expressed concern with presumptive sentencing. He summarized that the department is concern that the legislation would allow the court to circumvent presumptive sentence. Ms. Carpeneti explained that a negotiation would be a mitigating factor and would allow the court to reduce presumptive sentencing. Co-Chair Mulder questioned if the negotiated settlement should include the judge. Ms. Carpeneti stated that it would depend on the type of case but that it would not a bad idea to include the judge. Co-Chair Mulder emphasized that the judge would be the third party to balance the agreement. He noted that there are some factors that might want to be exempted. Ms. Carpeneti responded that there has been discussion on excluding cases that are outside of AS 11.41. In response to a question by Co-Chair Therriault, Ms. Carpeneti noted that an offender that burns down a house and an offender that burns something in someone's yard would both be included under arson. In response to a question by Representative J. Davies, Ms. Carpeneti explained that the legislation adds a mitigating factor. She discussed presumptive sentencing under AS 12.55.125. She noted that terms were set for what were deemed to be the right time for certain offenses. Then mitigating factors were set out to allow the court to raise or lower sentences. Factors of mitigation have to do with excuses. The defendant has to prove by clear and convincing evidence that it was a mitigated crime. The legislation would add a mitigating factor without clear and convincing evidence. Representative Grussendorf questioned how "community" would be defined. Ms. Carpeneti responded that she did not know how community would be defined. BLAIR MCCUNE, DEPUTY DIRECTOR, PUBLIC DEFENDER AGENCY testified via teleconference in support of the legislation. He clarified that mandatory fines and surcharges would be included. He pointed out that the Victim's Rights Act protects the victim. He noted limitations on the contact of victims by the defendant's lawyer or the defendant. The state while representing the public interest also often represents the interest of the victims. Mr. McCune observed that juvenile court cases are screened to be sure that the cases chosen are appropriate. There is a victim offender mediator, which helps the process. He suggested that judges would be less inclined to take cases negotiated through straight contact. He maintained that restorative justice is about mediated controlled and carefully screened cases, in which the interests of the community, the victim and the offender are taken into account and carefully weighed. He noted that restorative justice has worked well in other states. Representative Grussendorf reiterated his questioned concerning the definition of "community". (TAPE CHANGE, HFC 00 - 102, SIDE 2) Mr. McCune gave examples of the interpretation of community. Mothers against Drunk Drivers were involved in a DWI case. Other restorative justice cases have included local merchant associations in downtown areas that were vandalized. He acknowledged that community is not strictly defined. Representative Grussendorf summarized that the judge would decide the definition of community. Mr. McCune affirmed. Representative Dyson expressed confidence in the judge's ability to look after the interest of the victims. He pointed out that judges are already doing it and that the legislation would just authorize current practice. He stressed that there are good application opportunities for rural Alaska and emphasized that it is not a new practice. Representative J. Davies expressed concern that there not be unintended consequences. He asked for purpose of including a mitigator. Mr. Torkelson responded that the purpose was to allow the judge to take the negotiation into account. Representative J. Davies noted that all the other mitigators were on the nature of the crime itself. He pointed out that there would be a new class of mitigators. Vice Chair Bunde stated that his concern is with the victim. He stressed that he would rather have his loss restored than have someone sit in jail. Representative Dyson observed that perpetrators that go through restorative justice have lower incidents of recidivism. He maintained that working to restore a loss expresses the magnitude of the crime and the loss on the offender. He felt that it would be a greater punishment to face victim and be accountable. Co-Chair Therriault stressed that he wanted to assure that judges do not just rubber stamp negotiations but take an active role. Representative Grussendorf questioned if some of the more serious crimes should be excluded. Representative Dyson acknowledged his concern and added that making up for a burglary is a good experience for the burglar. He emphasized that it can work for very violent crimes and urged that the judge make the decision. Representative Grussendorf pointed out that burglary and arson can turn into very serious offenses. Co-Chair Therriault questioned if lesser and greater extents of arson can be separated. Representative J. Davies stated his intention to offer amendments on the legislation. He stated that he would like to add a requirement that the court approve the negotiation before it happens. Co-Chair Mulder questioned if the judge should be involved. Discussion ensued regarding involvement of the judge. Co- Chair Mulder argued in support of the judge's involvement. Representative J. Davies stressed that there are classes of restorative justice that would not require the involvement of the judge during negotiations. Representative J. Davies restated his intention to offer an amendment that would insert a sentence at the end of section 1: in this section "community" shall be defined by the court. Mr. Torkelson observed that "community" is defined as a group of people with common interests. Representative J. Davies stated that his amendment would make it clear that is not up to the offender to define the community. Mr. Torkelson questioned why would the defense attorney allow to a defender to go into something without knowing the outcome. Representative J. Davies pointed out that have the choice to agree or go back to the original sentencing. HB 372 was heard and HELD in Committee for further consideration.