SB 25-THREE-TIME LOSER: VIOLENT MISDEMEANORS MR. MIKE PAULEY, staff to Senator Loren Leman, presented SB 25. SB 25 is a bill designed to address people who commit repeated violent misdemeanors. MR. PAULEY said it is common for felony offenses to be reduced to misdemeanors during the plea bargain process. Under SB 25, a person convicted of a third violent misdemeanor in a ten- year period will be prosecuted for the third offense as if it was a violent felony. TAPE 99-16, Side B Number 582 MR. PAULEY explained SB 25 covers eight offenses (class A and B misdemeanors). Multiple offenses within a single criminal episode are considered single offenses for the purpose of this bill. If the defendant does not concede prior conviction, the prosecution must provide the court with proof of the convictions at least 20 days before sentencing. If the defendant disputes the accuracy or relevancy of the prior record, he or she must serve the prosecutor with a notice of denial 10 days before sentencing. MR. PAULEY said SB 25 will provide an additional tool to keep dangerous offenders off the street and send a message that the state will not tolerate violence as a means to settle disputes. MR. PAULEY indicated the sponsor met with a representative of the Department of Law to address the department's concern over a possible equal protection challenge to the bill. MR. PAULEY said the challenge would arise from the sentencing difference between two defendants who commit a violent misdemeanor, one who has two prior violent misdemeanor convictions and is sentenced as a felon, and the other who has two prior felony convictions and is sentenced as a misdemeanant. MR. PAULEY said the opinion of the drafting attorney is that the state could present a legitimate argument to the "rational basis" test and the bill would be constitutional. However, the sponsor would prefer a bill without any question of constitutionality and is working toward an alternative. MR. PAULEY commented that one alternative under scrutiny might lower the bill's substantial fiscal note. Number 543 SENATOR HALFORD asked how the bill would apply in situations where offenses occur in such quick succession that there may not be a conviction for them by the time the third offense is brought forward. MR. PAULEY said that situation had not been anticipated. Number 528 SENATOR ELLIS asked for an explanation of stalking in the second degree. MR. PAULEY read the definition: "[to] knowingly engage in a course of conduct that recklessly places another person in fear of death or physical injury or in fear of the death or physical injury of a family member." SENATOR HALFORD noted this crime can be committed verbally "from 1,000 miles away." SENATOR ELLIS assumed that a defendant facing conviction under SB 25 will be entitled to a full jury trial. MR. PAULEY agreed. SENATOR ELLIS asked if the bulk of the costs reflected in the fiscal notes comes from additional jury trials. MR. PAULEY said that, and the cost of additional incarceration, comprise the bulk of the fiscal notes. SENATOR HALFORD asked what constitutes misconduct involving weapons in the fifth degree. MR. PAULEY replied it is the possession of a weapon on premises where liquor is sold for on-site consumption or possession of a weapon by a minor without permission or possession of a weapon in a parking lot adjacent to a child-care or domestic violence/sexual assault shelter. This offense includes possession of a switchblade or "gravity" knife. SENATOR HALFORD asked if this means, "Three gravity knives and you're out?" He suggested, "maybe that one should come off." Number 460 MS. ANNE CARPENETI, representing the Department of Law, said the equal protection challenge would result from a person with two prior misdemeanor convictions being treated more seriously than a person with two prior felony convictions. SENATOR DONLEY said the argument could be made that a repeat or an escalation of a type of criminal conduct is worse than a decreasing level of criminal conduct. MS. CARPENETI stated the Department is also concerned an increase in grand jury indictments would require a big step up in the level of prosecution; this is reflected in the Department's fiscal note. Another concern is the effect this bill will have on the prosecution of first and second violent misdemeanor offenses, according to MS. CARPENETI. MS. CARPENETI explained the Legislature last year adopted mandatory minimum sentences for second and third degree domestic violence and fourth degree assault. These are the most serious offenses covered by SB 25 and she suggested the committee consider waiting for these new laws to take effect, in order to see how prosecutions are affected. She suggested they wait one year, saying "it sounds like a good idea to get tough on people who continue to commit violent misdemeanors . . . but this bill has some problems and we would recommend waiting and getting more information on what we just did last year . . . " SENATOR ELLIS asked if the Anchorage Prosecutor's office has submitted their concerns in writing. MS. CARPENETI did not know but said she would ask them to do so. Number 385 MS. MARGOT KNUTH, representing the Department of Corrections, remarked that SB 25 keeps the actual offense a misdemeanor and only considers it a felony for the purposes of sentencing. She asked if the bill will allow presumptive sentencing and allow these crimes to be prosecuted by municipalities. She said this may be a step away from encouraging municipalities to deal with public services. SENATOR DONLEY asked how many municipalities currently prosecute misdemeanors. MS. KNUTH answered Anchorage and Juneau do. She stated than John Richards estimated there would be a thousand convictions under this law per year. The fiscal note was determined using fewer than 250 cases. MS. KNUTH said the Department assumed for the fiscal note a sentence double the length of time currently served, and probation for misdemeanant. Additional expenses would include pre-sentence reports for these cases. Number 346 SENATOR HALFORD commented that the number of people who fall into this category is disturbing. SENATOR DONLEY asked what the number would be if the bill was narrowed to include only physically violent (contact) felonies. MS. KNUTH reported the majority of cases are assault and violation of domestic violence orders. SENATOR DONLEY asked if aggravating and mitigating circumstances are considered for misdemeanors. MS. KNUTH replied prior offenses as well as the length of prior sentences and a statement by the prosecutor are considered by the court. MS. KNUTH explained there are 35,000 people who go through the system annually; most are misdemeanants. SENATOR DONLEY asked about the possibility of a mandatory one-year sentence. MS. KNUTH replied the current 1.3 million dollar fiscal note assumes 60 extra days of incarceration per person; a mandatory one-year sentence would raise the amount to 6.8 million dollars. SENATOR DONLEY commented that he is disturbed by how violence is undervalued through plea bargaining. He said, "Ooh, what about taking their Permanent Fund Dividend if they're three times [offenders]- that would send them a message." SENATOR HALFORD observed that the bill could be boiled down to adding "60 days to serve for the person that's done this." Number 269 MS. KNUTH said a new Anchorage jail with a 400 person capacity is currently under construction, and "if the Legislature were considering six months to serve on a third time violent offender, we're going to have to up that right away." SENATOR DONLEY said this presumes no deterrent factor at all. MS. KNUTH replied all studies show the deterrent for these types of crime is the certainty that they will be caught and suffer consequences. According to MS. KNUTH, "Our system isn't good at that - we're good at throwing the book at people once we get them." SENATOR DONLEY said part of the problem is that these crimes are not taken seriously enough. SENATOR HALFORD remarked, "I'd like to see us do as much as we can afford, but sometimes I think we hit these people just harder than I can stand with my nose on their fist." SENATOR DONLEY suggested if "we pull all their Permanent Fund Dividends (PFDs)" this bill could be funded. MS. KNUTH reminded the committee that the offender's PFD is the source of restitution for the victim of the case. She mentioned PFDs are also often the only source of child support collected from offenders. SENATOR HALFORD asked SENATOR DONLEY if he would work with the sponsor on SB 25. SENATOR DONLEY replied, "I'd pass it the way it is - I like the bill." Number 228 MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency, expressed concern with prosecuting a crime "as if" it were another crime. The Legislature has passed many bills over the past few years that make a recidivist offense a more serious crime. This is well established, but prosecuting a crime "as if" it were another crime is not. MR. MCCUNE said it would be difficult to administer the provision that determines if prior offenses were elements of the same crime committed for the third time. Number 205 MR MCCUNE argued there are harsh sentences given now to people convicted of a third domestic violence offense. Usually judges include a big suspended sentence along with any time to serve, and in case of an additional offense, the judge can impose a sentence of up to one year in addition to the accumulated time that had been previously suspended. MR. MCCUNE said many of these cases involve people with mental health problems and the Department of Corrections is the largest mental health care provider in the state. A program to track these people and provide them with mental health services has begun in Anchorage; MR. MCCUNE thought that "real strict mandatory minimums might hurt some of those programs." In the future, he hopes to see strong substance abuse programs in jails and follow up substance abuse treatment as a part of probation. MR. MCCUNE expressed concern regarding the ability of municipalities to prosecute these cases. Number 142 MR. DAVID HUDSON testified the Alaska State Troopers support SB 25. MR. MIKE PAULEY suggested there are alternatives to the current bill such as mandatory minimum sentences that avoid the equal protection challenge. He said this alternative would also reduce the fiscal note from the court system, though it might increase the fiscal note from the Department of Corrections. SENATOR HALFORD said the bill will remain before the committee for scheduling at the chairman's convenience. He said they would not get to SB 77 today. SENATOR DONLEY said SB 77 is "a pretty straightforward bill - I'd love to go ahead and move it out of here today." SENATOR HALFORD indicated the sponsor of the bill would prefer to wait.