HB 372-CRIMINAL SENTENCING AND RESTITUTION REPRESENTATIVE FRED DYSON, sponsor of HB 372, explained that virtually all justice systems have traditionally focussed on restoring the victim to a pre-offense condition. In biblical times, if a cow was killed, the community would come together and require that the owner of the cow be compensated. In this country, a movement back to a restorative or reparative justice system is occurring. HB 372 is a small step that puts in statute language that permits judges to allow perpetrators of non-violent crimes to negotiate reparations for the community or for the victim which the judge can use as part of the offender's sentence. Number 819 DEAN GUANELI, Assistant Attorney General with the Criminal Division of the Department of Law (DOL), agreed with Representative Dyson that the current process of awarding restitution to victims has problems, however he does not believe HB 372 addresses the key issues. HB 372 is unfair to victims and it is unfair to other defendants. In addition it contains uncertain procedures. MR. GUANELI said first of all, putting victims in a position to, in essence, plea bargain with the defendant over the sentence puts the victim in an unequal bargaining position. Defendants have a right to counsel, and if they cannot afford one, counsel is appointed for them. Victims may not have a lawyer therefore they could be taken advantage of by defense attorneys who know the law and procedures. Nothing will be gained by the victim when negotiating directly with the defendant. Defense attorneys are likely to tell the victims if they agree to a lesser sentence, they will get paid the full amount of restitution. Although the bill contains a provision that addresses coercion or intimidation, defense attorneys will simply be using good negotiating tactics. MR. GUANELI maintained that HB 372 will create a series of uncertain procedures. When the defendant reaches an agreement with the prosecutor over a plea, it is presented to the judge. If the judge does not accept the agreement, the defendant is allowed to withdraw his plea and the case goes to trial. The agreement could be held over the victim's head by the defense attorney who might say if the victim does not agree, the case will go to trial. It raises the spectre of putting the victim in a position of having to plea bargain without being aware of all of the laws and rules of procedure. It also raises questions about the role of the probation office in presenting pre-sentence reports to the court. MR. GUANELI commented that the additional thing about creating a mitigating factor in which a defendant can make a deal with the victim allows defendants with money to buy their way out of jail time. He noted that the Senate has passed SB 4 which creates an office of victim advocacy. HB 372 will have a large impact on that agency as victims will most likely get representation from it. MR. GUANELI suggested the following changes to improve the existing system. AS 12.55.005 contains a list of factors that the court is supposed to consider when imposing a sentence. A factor about restoration of the victim and the community could be included. That would force judges to consider restoration of the victim but it would not put the victim in the position of actually having to plea bargain. The factors in the statute then will find their way into the appelate opinion. If the sentencing courts do not adequately take the factors into consideration, the appelate court has sentencing review authority so the sentence can be disapproved. Second, in imposing restitution, the court can require compensation in some form other than money. Some judges make restitution a condition of probation so that if the offender does not pay, he or she could be put back in jail. That only works for the duration of the probation period, however. He suggested making the order of restition a condition of probation and a condition of the sentence. That way, if the restitution is not paid before the probation period ends, the order of restitution can be reduced to a civil judgment and enforced by the victim. He indicated that by placing the condition of sentence in statute, all judges would use it. MR. GUANELI informed committee members that he had a list of his suggestions which could easily be put in an amendment format. Number 1338 SENATOR HALFORD noted that the title of HB 372 is broad enough to amend almost anything into it. He asked Representative Dyson how he felt about the proposed amendment. REPRESENTATIVE DYSON said he has not yet seen the list of suggestions which disturbs him. He thought they sounded good. MR. GUANELI indicated the suggestions were given to Representative Dyson's staff earlier today. CHAIRMAN TAYLOR suggested that Mr. Guaneli meet with Representative Dyson to discuss a proposed amendment. He noted that as a district judge he has seen victims hold defendants hostage. He thought HB 372 provides for victims' allocution rights and for enforcement rights that the court can give to victims. He noted that representatives of womens' shelters throughout the state expressed concern about negotiations between partners in domestic violence cases. REPRESENTATIVE DYSON pointed out that the crime of domestic violence and other crimes of violence were left out of the bill for that very reason. HB 372 only applies to the sentencing phase and it allows, not mandates, the judge to allow negotiations. CHAIRMAN TAYLOR noted in a majority of cases, sentencing occurs at arraignment. Only in a felony case will there be some delay in the sentencing process. REPRESENTATIVE DYSON said this weekend a restorative justice conference is being held in Anchorage and he will be attending one in Washington, D.C. in May. Most of the judges in Alaska see this as an opportunity to protect the rights of the victim. Many judges are referring cases to mediation which is done in a very controlled environment where the victim's rights are looked after. CHAIRMAN TAYLOR announced the committee would put the bill aside for a short time while Representative Dyson and Mr. Guaneli discuss a proposed amendment. HB 372-CRIMINAL SENTENCING AND RESTITUTION MR. PETER TORKELSON, legislative aide to Representative Dyson, informed committee members that he and Representative Dyson sat down with representatives from DOL. Representative Dyson is not opposed to incorporating Mr. Guaneli's proposed amendment into HB 372. He believes DOL intends to replace HB 372 with the proposed amendment which Representative does not support. Amendment 1 reads as follows. A M E N D M E N T 1 OFFERED IN THE SENATE DEPARTMENT OF LAW TO: CSHB 372(FIN)am *Section 1. AS 12.55.005 is amended to read: Sec. 12.55.005. Declaration of purpose. The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by stateute as provided in thie chapter. In imposing sentence, the court shall consider (1) the seriousness of the defendant's present offense in relation to other offenses; (2) the prior criminal history of the defendant and the likelihood of rehabilitation; (3) the need to confine the defendant to prevent further harm to the public; (4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety; (5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct; [AND] (6) the effect of the sentence to be imposed as a community condemnationn of the criminal act and as a reaffirmation of societal norms; and (7) the restoration of the victim and the community. *Sec. 2AS 12.55.045(f) is amended to read: (f) If a court proposes to order a defendant to pay restitution under this section of more [LESS] than $5,000, and the defendant's sentence includes [DOES NOT INCLUDE] a period of unsuspended incarceration exceeding 90 days, the court may take into account at the time of sentencing the defendant's present and future ability to pay the restitution proposed. The court shall presume that the defendant has the ability to pay the amount proposed unless the defendant at the sentencing hearing establishes by clear and convincing [A PREPONDERANCE OF THE] evidence the inability to pay the amount proposed. *Sec. 3 AS 12.55.045 is amended by adding new subsections to read: (I) An order of restitution made under this section is a condition of the defendant's sentence and, in cases in which the court suspends all or a portion of the defendant's sentence, the order of restitution is a condition of the suspended sentence. If the court suspends imposition of sentence under AS 12.55.085, the order of restitution is a condition of the suspended imposition of sentence. SENATOR ELLIS expressed support for adding the amendment to the bill. CHAIRMAN TAYLOR noted the proposed amendment contains the word "may" so it does not mandate anything. SENATOR ELLIS moved to adopt Amendment 1 as an addition to the legislation. There being no objection, the motion carried. SENATOR ELLIS moved SCS CSHB 372(JUD) from committee with individual recommendations. There being no objection, the motion carried.