HB 38 SENTENCING;3RD SERIOUS FELONY OFFENDER  PATTY SWENSON, staff to Rep. Bunde, sponsor of the measure, described HB 38. The bill provides a 40-99 year prison sentence for third-time class A felons. Discretionary parole and good time sentence reductions would not be available to those offenders, however they could request, from the court, a reduction in sentence after they have served the greater of one-half of their definite term or 30 years. HB 38 gives the prosecutors some discretion in the decision to pursue third-strike sentencing to avoid unjust results in certain cases where the evidence may be weak. The bill also allows prosecutors some flexibility to proceed with normal presumptive sentencing provisions when necessary. The legislation is crafted to keep costs to a minimum. Number 225 BARBARA BRINK, Deputy Public Defender, offered the following insight into the impact of HB 38 on the Public Defender Agency. HB 38 creates a class of defendants that can be subjected to a 40- 99 year mandatory term. Because it is without the possibility of parole, or a good-time provision, the bill creates the most severe penalty available in the states. Increased litigation will result, increasing costs to the Public Defender Agency in the following three ways. First, a person charged with a third-strike felony will want to go to trial. Unlike the Department of Corrections, which anticipates a fiscal impact down the road, the Public Defender Agency will be severely impacted immediately. Second, because of the consequences, these trials will involve extended investigations, lengthy trials, and expert witnesses. These cases will require the most skilled and experienced litigators and therefore the most expensive attorneys. Before a case can go to trial, the Public Defender Agency will have to do a collateral attack: it will have to scrutinize the prior strikes of the defendant to ensure constitutional validity. That will require review of volumes of material from previous cases. If any of the prior convictions were out-of-state, travel will be required, as well as contractual expenses, and appearances in court in other states if court action is necessary there. For the prior strike to count, the felony would have to have been committed in Alaska, there must have been a plea or constitutionally valid trial, and there must have been competent counsel. Third, more felony convictions will end up in trial, since nobody will want a first strike on their record: increased litigation will also arise in the first and second strikes. MS. BRINK continued. Currently 94 percent of all felony cases result in retrial. Even a single trial is an extreme drain on resources. For the District Attorney's Office, law enforcement, courts, judges, clerks, bailiffs, juries, etc., a single trial can consume weeks of time. The system is not capable of allowing every single criminal defendant to go to trial. With the three-strike law, the system would collapse upon itself. Plea bargaining results in convicts serving long jail sentences without the need for a trial. Three-strikes legislation has been used in other states without success. In California, the legislation has been on the books for one year and is straining the criminal justice system to the point of deadlock. It is clogging court calendars and forcing fewer prosecutions of other crimes. Previously in California, 90 percent of all felony cases were plea-bargained; now the number is less than 14 percent. The California three-strike law is broader than HB 38, the third strike can be any felony offense, however the California experience illustrates that the policy makers that passed the legislation consistently underestimated the impact the legislation would have. The expansion of HB 38, from 40-99 years, means that more cases will be filed than anticipated. Prosecutors tend to save 99 year sentences for the worst cases. Under HB 38, the prosecutor has to decide by arraignment in Superior Court whether it is a three-strike case. With violent crime rates lower, and little or no growth in the overall crime rate over the past two decades, the impetus for HB 38 needs to be examined. The largest number of inmates are 18-24 year old males, without high school diplomas, and unemployed. Education and prevention methods need to be discussed as alternatives. Number 353 SENATOR TAYLOR announced the committee would move the calendar back to confirmations, since Senator Miller arrived. SENATOR GREEN moved the Senate Judiciary confirmation report be sent out of committee with individual recommendations. There being no objection, the motion carried. Number 370 BRANT McGEE, director of the Office of Public Advocacy, concurred with Ms. Brink's testimony. He reiterated that each case will go to a lengthy trial and will not be subject to charge or plea bargaining. Prior convictions will be attacked by the defense in an attempt to eliminate a prior felony conviction. The financial impact on the Office of Public Advocacy will be substantial since it is likely the Public Defender Agency will be representing many of these people. SENATOR TAYLOR asked if the Public Defender Agency will have the choice of whether to make a collateral attack, if issues are available on previous convictions, or to plea bargain instead. MR. McGEE answered under Title 18 and the Rules of Professional Conduct, the Public Defender Agency is required to represent zealously any defendant whose case it is given by the court system. The Public Defender Agency must do what is best for the client, and a collateral attack will be one of the only ways to relieve the burden of the punishment. Frivolous attacks will not be pursued, but to determine whether a collateral attack is frivolous would require an exhaustive review of the prior felony case. Number 410 SENATOR TAYLOR stated he wanted, for the record, an explanation of the options available under this legislation, from people working in the field. He expressed concern that people who complain the Public Defender Agency is clogging up the courts assume the Agency has a choice in how to represent the defendant. MR. McGEE clarified the Public Defender Agency attorneys do not have any choices if they want to continue to practice law in Alaska. They have a constitutional and ethical responsibility to do whatever they can for their client. SENATOR TAYLOR asked if an attorney would be disbarred for not doing whatever he/she could. MR. McGEE replied a second lawyer would be hired to attack the first lawyer's performance, the costs skyrocket, and the courts are tied up even longer. Number 442 REPRESENTATIVE CON BUNDE provided the following testimony. HB 38 will cost money, but those costs are to protect citizens. The preference of the Public Defender Agency to plea bargain serious offenses, and allow those people back out on the streets, has created the revolving door problem. HB 38 allows for prosecutorial discretion, and will only be used in the most serious of cases. He discussed the discrepancy in the projected number of cases by different agencies, and in the fiscal notes. Supporters of the issue are willing to pay the price to keep the most violent felons off the street. They are not capable of being rehabilitated, and have been in the system twice already for five to fifteen years. As existing laws apply, they would go to jail for another 12 1/2 years for a third conviction. As the Department of Corrections' fiscal note indicates, there would be no fiscal impact for that time period since those offenders would be in jail during that time anyway. About 250 people are in jail for third felony convictions, and about 150 are in jail for subsequent felony convictions. He questioned the expense of letting these people back into society. Habitual criminals take a substantial amount of money out of the public coffer, at the expense of the public. That expense does not include the human tragedy they cause. Number 486 SENATOR TAYLOR commented his concern is that the legal systems in California and Washington State are breaking down because of this legislation. The result may be that fewer people would be prosecuted because of a lack of district attorneys. Prison overcrowding is already problematic. REPRESENTATIVE BUNDE reminded Senator Taylor that HB 38 is very different from the California and Washington laws. SENATOR TAYLOR noted the bill limits the provisions to class A felons, and has a ten year time limit, which are commendable provisions. However, he indicated professionals in the criminal justice system have no choice in the matter, since it removes discretion from the prosecutor and defender in the ability to bargain. Number 509 REPRESENTATIVE BUNDE responded the bill does allow for prosecutorial discretion, in that prosecutors are allowed to pick and choose the cases that are appropriate. SENATOR TAYLOR asked if there would be significant restrictions placed on prosecutors when choosing. REPRESENTATIVE BUNDE stated he believes the discretion would lie solely with the prosecutor as to whether the evidence and severity of the case warrants this charge. The prosecutor is limited by the type of crime when applying this sanction. After reviewing the case, the prosecutor would notify the court the habitual offender option was being sought. Number 526 SENATOR TAYLOR applauded Rep. Bunde for introducing the legislation, as it is a necessary tool, although he is concerned the ramifications of the bill are not yet understood. He added the idea is not new, most Western states had a habitual criminal law on the books for years and almost all of those states rejected that law. Many of the reasons for rejection were corrected in HB 38. Number 536 MARGOT KNUTH, Assistant Attorney General, stated the Department of Law favors the concept of treating repeat offenders more harshly, however the fiscal consequences of HB 38 are considerable. Section 15 removes the good time provision. The Department of Law believes there are two advantages to "good time." First, it motivates good behavior; its elimination will be a disincentive to cooperative behavior. Second, the amount of time accumulated under good time upon release, is time the person is under supervision by the Department of Corrections. This supervision cannot exist unless there has been some credited time. The supervision is a good way to reintroduce a parolee into society. For those reasons, the Department of Law would propose that Section 15 not be adopted. Number 566 SENATOR TAYLOR asked Ms. Knuth if she found anything in Ms. Brink's or Mr. McGee's testimony she would disagree with, from her experience. MS. KNUTH answered she did not; and agreed HB 38 will prompt more defendants to go to trial because he/she would have nothing to lose by doing so, and that it will require collateral attacks on prior felonies. Number 586 SENATOR TAYLOR asked Ms. Knuth to describe how an attorney would attack a conviction that had been established and firm for five years. MS. KNUTH stated the attorney would file a special pleading that initiates a new case, the purpose of which is to review the case for constitutional violations that may have occurred in the course of the prosecution. If any violations did exist, there would be a basis for vacating that conviction. A bill introduced by the Governor puts some restraints on repeat re-examinations of what the public considers to be final convictions. SENATOR TAYLOR gave the following example. A defendant pleads guilty to a second felony offense, and after serving the sentence, is picked up on another felony charge seven years later. The current attorney notes the defendant is Mexican, does not speak English very well, and was held in jail for three days. The attorney will challenge the prior conviction based on the defendant's Miranda rights. TAPE 95-29, SIDE B SENATOR GREEN asked if the Department of Law is assuming the "good time" provision would provide an incentive for good behavior for a third time felon. MS. KNUTH commented it is true that even a third time offender with a 50 year sentence believes that "good time" behavior will lessen the sentence by one-third. SENATOR TAYLOR stated he disagrees with the "good time" concept as it was invented to free up prison space. At a sentencing course at a judges' college he attended, with international participants, sentencing procedures were compared. In Australia a 20 year sentence means the prisoner will serve 20 years; if prisoners misbehave, their sentences are extended. In Alaska, prisoners are unpunished by early release, for crimes they already committed. Number 557 REP. BUNDE agreed with Senator Taylor's assessment of the "good time" provision, and noted that a person convicted of sexual abuse of a minor could serve as little as five years and be out on "good time." The notion that the parole system is successful is a misperception. These people are psychopaths and need to be isolated from the general population so that more people are not victimized. SENATOR TAYLOR asked for an estimate of the difference between current sentences for third time class A felons, and the sentence that would be received under HB 38. REP. BUNDE affirmed the average sentence for a third time serious felon is 12 1/2 years. Under HB 38, the convict would serve at least one-half, or 30 years, of the 40 - 99 year sentence. MS. KNUTH added the 12 1/2 year sentence is correct if a person is convicted of a single class A felony offense which has a maximum term of 20 years. Usually these defendants have committed multiple offenses with a series of consecutive sentences. The group most likely to fit within the parameters of HB 38 are serving 30 or more years already through consecutive sentencing on multiple convictions. SENATOR TAYLOR asked if that is why the fiscal note from the Dept. of Corrections is as low as it is. MS. KNUTH replied affirmatively. SENATOR TAYLOR asked if HB 38 would only apply to prospective felons. REP. BUNDE answered HB 38 has a ten year retroactive clause. Number 522 SENATOR GREEN asked on which conviction for those convicts currently serving long sentences, the sentence was imposed (the third or greater than third). MS. KNUTH explained it is on several convictions entered at the same time for a third time offender. There may be multiple victims, typically a sex offender commits several offenses before they are apprehended and charged. If convicted on all charges, part of the sentences are consecutive. SENATOR GREEN clarified it may be the person's first appearance in court but that person has been accused of several crimes. SENATOR TAYLOR referred to the retroactive clause on page 8 and clarified it only is retroactive for 10 years. REP. BUNDE added it only applies to three separate class A felony convictions, therefore it would not apply to a person convicted of raping three people as one charge. He stated a person convicted at the age of 25 would be free at age 45, under current law, yet research shows a person in their 60's is less inclined to violence. Number 482 SENATOR TAYLOR discussed a case in Florida in which a 17 year old youth plea bargained and received a 44 year sentence for a first offense. He was one of the people who shot the German tourists. The choice was to plea bargain and serve 44 years, or be prosecuted under the felony murder rule and face the death penalty. Number 464 MARGARET BERCK, representing the American Civil Liberties Union (ACLU), gave the following testimony. The ACLU is opposed to HB 38 for several reasons. This approach would be costly and is not the best use of limited expenditures in the criminal justice system. In response to comments made by previous witnesses, regarding a potential increase in the number of trials, she noted a previous client she represented chose to go to trial last December to prevent a "strike" in anticipation that HB 38 might pass. ACLU believes judges should have independence in judging individuals that come before them, to allow judges to take into account individual qualities when fashioning a sentence. HB 38 will cause greater resources to be applied to a smaller group of people. Aside from the increase in the number of trials, plea bargaining may be used to obtain an offense that would not be considered a "strike." She discussed another client who had prior felony convictions, although not class A felonies, who was sentenced to 61 years, with 20 years suspended. She commented HB 38 essentially sets up a very specific category of offenders and suggests mandatory sentencing ranges for those individuals, and may allow defense attorneys to argue for lesser sentences for other serious offenders. HB 38 may apply to other bodies of case law in unforeseen ways. She discussed the provision which prevents sentence modification unless one-half or 30 years of the term is served. She discussed a case of a terminally ill prisoner and explained HB 38 would preclude a judge from allowing relief in such a case. Number 357 SENATOR TAYLOR noted that provision is in Section 6, and commented the result of deleting that section would be the deletion of the one-half or 30 year provision, therefore a language change would be necessary. The intent would be to allow the court to make a discretionary choice for extraordinary circumstances. MS. BERCK stated she made her motions under Alaska Criminal Rule 35B. SENATOR TAYLOR asked Ms. Berck her opinion of the "good time" provision. MS. BERCK stated she would support providing inmates with motivation to comply with rules and regulations within the correctional setting, however she hoped a judge would take into account the "good time" allowance when determining the length of a sentence, or consecutive sentences. Number 296 SENATOR GREEN questioned the solution to repeat offenders who continue to commit serious crimes, if the three strikes approach is not used. MS. BERCK noted this approach spends a large amount of money on a small segment of offenders, albeit serious offenders. The increase in crime is caused by the young male population, and she feels tougher sentences initially, for crimes of a less serious nature, might be a successful alternative. Number 248 JERRY SHRINER, Special Assistant with the Dept. of Corrections, discussed the department's zero fiscal note. He pointed out that given the best of circumstances, if offenders were able to be released at the end of 30 years, the population covered by this bill would reach 450 people in 30 years. That number is higher than current prison capacity in the state. Under current sentencing practices, the same number of people will be in prison in 12 1/2 years, as that number tends to remain constant. The increase under HB 38 to 450 inmates in 30 years would be in addition to other increases in the prison population that may occur. A 450-bed medium to maximum security prison would cost at least $80 million in current dollars to construct, and $10-$12 million per year in operating costs. MR. SHRINER continued. Mandatory sentencing law studies have been conducted in several states and have yielded the following conclusions. In Delaware, with respect to drug and violent crimes, incarcerating repeat offenders has had no effect on the rise in the crime rate. Other factors are fueling the increase in crime. The Pennsylvania Commission on Correctional Planning has recommended all mandatory laws be repealed in favor of sentencing guidelines, to give more flexibility to judges to consider individual characteristics. In Oregon, a plan was adopted that recommended that any new programs focus on probation, parole, and intermediate sanctions. The Campaign for an Effective Crime Policy, a national organization comprised of 750 justice and correctional experts, concluded the streets are not any safer as a result of mandatory sentencing, and that the cost-effectiveness of incarcerating repeat offenders, from any perspective, is questionable. In states that have studied their mandatory sentencing laws, they have studied them from the standpoint of rising crime rates despite the incarceration of more habitual criminals. They also extended the studies to determine to what extent those sentences act as a deterrent to committing a crime. While 65 percent of offenders noted they were well aware of mandatory sentencing prior to their offense, only 25 percent actually considered it when making the decision to commit the crime. Number 157 SENATOR TAYLOR asked Mr. Shriner to contact John Rees, of the Corrections Corporation of America. That corporation owns the correctional facility in Arizona that Alaska has contracted with. The 500 bed facility took 5 1/2 months to complete at a cost of $14 million. He stated it would make no sense to build a prison in Alaska for $80 million. He asked Mr. Shriner what the cost of housing inmates at Spring Creek is. MR. SHRINER replied it cost in excess of $100 per day, per prisoner. He pointed out state facilities in Arizona cost $43 per day, and private facilities cost $59 per day. SENATOR TAYLOR moved the adoption of a conceptual amendment that would allow for judicial discretion to release prisoners under unusual circumstances (as proposed by Ms. Berck), in Section 6, page 3. There was objection to the amendment. The motion failed with Senators Green, and Miller voting "nay," and Senator Taylor voting "yea." SENATOR TAYLOR moved a second amendment suggested by MS. KNUTH, to delete Section 15. SENATOR GREEN objected to the motion. The motion failed with Senators Green and Miller voting "nay," and Senator Taylor voting "yea." SENATOR MILLER moved CSHB 38 (JUD)am out of committee with individual recommendations. There being no objection, the motion carried.