HB 218-SENTENCING; AGRAVATOR/DEPORTATION STATUS  1:49:38 PM CHAIR COGHILL announced the consideration of HB 218. "An Act relating to the aggravating factor at felony sentencing of multiple prior misdemeanors when a prior misdemeanor involves an assault on a correctional employee; providing that deportation is not a proper factor for referral of a case to a three-judge panel for sentencing for a felony; and providing for an effective date." This was the first hearing of the bill. [CSHB 218(JUD) was before the committee.] 1:50:05 PM TOM WRIGHT, Staff, Representative Mike Chenault, introduced HB 218 on behalf of the sponsor. He said the bill started out as a very simple bill. After Representative Chenault had a discussion with a correctional officer in Seward, he was informed there were some statutes that did not cover correctional officers in the same manner as police officers. Legislative Legal found one statute that did not include correctional officers - AS 12.55.155(c)(31), which covers the aggravating factor of multiple misdemeanors. The aggravating factor allows a judge who is sentencing a person for a felony conviction to impose a sentence above the presumptive range if the defendant has five previous convictions for class A misdemeanors. Generally, convictions for two crimes that are part of a single criminal episode are counted as one prior conviction in sentencing. However, there are exceptions. Current law provides that prior convictions for resisting arrest, a misdemeanor while attempting escape, and assault on a peace officer would each count as a prior conviction even though they were part of the same criminal episode. The bill extends the same protection to correctional officers. He explained that Department of Law had a problem extending the same rights to persons in sentencing for a three-judge panel. There were several cases where the defendants requested a three- judge panel, citing deportation as an issue. The judge allowed the defendants to go before a three-judge panel for sentencing and the sentences were lessened because deportation was an issue. He related that an amendment now provides that the immigration status of a defendant convicted of a felony should be a neutral factor in imposing sentence on the defendant. He noted the decision to initiate or not initiate deportation proceedings is made by the federal government, not the state. He noted a letter in the packets from the office of Immigration Customs Enforcement (ICE) that on page 5 explains how ICE comes to a deportation decision. He concluded that it is a matter of fairness that a non-citizen be granted different rights than a citizen. Allowing deportation to be used in a sentencing factor creates a certain and exceptional circumstance. REPRESENTATIVE MIKE CHENAULT, sponsor of HB 218, said he agrees with what the Department of Law has brought forward. No one should have more rights than of a U.S. citizen. CHAIR COGHILL asked Mr. Svobodny to discuss Sections 3, 4, and 5. 1:57:09 PM RICK SVOBODNY, Deputy Attorney General, Criminal Division, Department of Law (DOL), Juneau, Alaska, said Mr. Wright gave a very good explanation of the bill. He said he wanted to make four points. The provisions that deal with immigration are designed to cover neutrality, fairness, public safety, and that immigration/deportation and removal are subject to federal jurisdiction. He provided an example of how neutrality would apply. A person in Nome who emigrated from Jamaica stabbed a cab driver and the Jamaican got a break that the cab driver wouldn't if the situation were turned. The bill is designed to treat all who come before the courts in an equal way. SENATOR WIELECHOWSKI said it seems like a violation of equal protection. He asked if somebody could address that. MR. SVOBODNY deferred to Ms. Black to answer. He addressed the fairness issue. Sentencing laws come from the legislature and set out a list of things to consider in sentencing, such as deterrents. The preparatory language says it's being done to make sentencing fair and equal among all persons. The court is supposed to look at restitution and treating victims with dignity and respect during sentencing. He said immigration status isn't a factor. He addressed public safety. He used the previous example to make a point that when the three-judge panel considered sentencing, they consider public safety. He explained that deportation is a fundamental federal issue beyond the control of the state. He noted that President Obama yesterday said there would be fewer deportations, which is a change in the rules. The National Immigration Law Center believes that the President and ICE have extraordinary discretion in deportation matters. 2:08:27 PM SENATOR DYSON commented that prosecutors will often plead down a case. His understanding was that the aforementioned person had been in the U.S. for some time and had served in the military with great distinction. He imagined the other side of the story was that the judges thought his military service ought to be a mitigating factor. If that was true, he wondered if the state ought to do more in letting courts decide mitigating circumstances. MR. SVOGODNY opined that PTSD and FASD make sense as mitigating factors and if the legislature decides to make distinguished service a mitigating factor that is fine, but when a three-judge panel is just guessing, it isn't acceptable. 2:12:29 PM MR. WRIGHT highlighted a February 11 memo from Mr. Svobodny to Representative Chenault that wasn't meant to be a legal memo. Some of the testimony in House Judiciary treated it as a legal treatise and it is not. 2:13:35 PM MARGARET STOCK, representing herself, Anchorage, Alaska, said she's an attorney who practices in the area of immigration. She represents deported military veterans and they are not often allowed reentry. Usually, they are deported under a particularly harsh section of the law. She described Mr. Svobodny's statement that the President is changing the immigration law startling, because it can't be done. She suggested he Google "deport veterans" to understand. She also questioned what a memo from the Department of Law would be if it isn't a legal memo. She cited other inaccuracies in Department of Law's position on this matter. MS. STOCK stated support for HB 218 as originally introduced, but not with the anti-immigrant amendment that the Department of Law suggested. It will disrupt the neutrality and fairness of the law. It says these people can't go to a three-judge panel because they're foreign born. What this does is create more unfairness in the law. The amendment was designed to treat foreign-born people differently. She reiterated that there was neutrality before the recent amendment was introduced. 2:21:14 PM CHAIR COGHILL thanked Ms. Stock for her work and service to her country. SENATOR DYSON said he was startled to hear her say a naturalized citizen could lose their citizenship. MS. STOCK said there are two provisions resulting in loss of citizenship for those who earn their citizenship through military service. One is if five years of honorable military service is not met, a person can be denaturalized and then deported. SENATOR DYSON said that information was helpful. MS. STOCK said she would address in writing further errors in the Department of Law's latest memo. 2:25:23 PM QUINLAN STEINER, Director, Public Defender Agency, Department of Administration (DOA), discussed the three-judge panel application and unduly harsh consequences, which separates the case from a valid equal protection argument. The Constitution says that community condemnation, restitution, and reformation are the goals of the criminal justice system. When viewed too narrowly, you run the risk of unfair proceedings. Presumptive sentences are designed to allow departures when appropriate, based upon the full range of collateral consequences. CHAIR COGHILL mentioned Section 4 and asked how the non- statutory mitigators would apply under the presumptive range. MR. STEINER explained that "if you plead and prove a non- statutory mitigator, then you would potentially get the referral to the three-judge panel." It would have to be re-proven to the panel and then show that the departure is appropriate. There are three hurtles in getting a departure below the presumptive range. 2:30:29 PM SENATOR WIELECHOWSKI asked what other states procedures are for mitigating factors. MR. STEINER said he didn't know; sentencing law is unique - ranges and presumptions are unique. SENATOR WIELECHOWSKI requested information about the mechanics for getting to a three-judge panel. MR. STEINER said there are two ways: a non-statutory mitigator and the argument that the sentence is manifestly unjust. 2:32:36 PM ANN BLACK, Assistant Attorney General, Criminal Division, Special Prosecutions and Appeals, Department of Law, Anchorage, Alaska, said with regard to the position that the bill is injecting bias or lack of neutrality into sentencing, Mr. Svobodny was accurate regarding a person's immigration status, which is valid under U.S. immigration law. It's a federal issue and isn't mentioned in the state constitution discussing what the appropriate factors are when dealing with the administration of justice in Alaska. She said in Alaska, the criminal administration of justice under Article 1, Section 2, is governed by the principles of protecting the public by enforcing community condemnation of the offender, by considering the rights of crime victims, by ensuring restitution from the offender, and reformation of the offender. She continued to say that this body codified additional factors found in AS 12.55.005 including the seriousness of the defendant's present offense, the defendant's prior criminal record, and likelihood of rehabilitation, the need to confine the defendant, the circumstances of the offense itself, and the extent to which the defendant harmed or endangered victims or public safety. Also considered are the effects sentencing will impose of deterring the defendant, as well as other members of society, community condemnation in the effort to reaffirm social norms, and restoration of the community and the victim. Nowhere is there any reference to federal policy on any topic, let alone immigration. She concluded that the bill "gets us back to the foundation of criminal administration in Alaska." By doing that, it advances this body's stated goal in creating a presumptive sentencing scheme, which is to ensure that there is not disparate sentencing. She said Mr. Svobodny noted two cases that are an excellent example of showing how considering a person's immigration status results in disparate sentencing. She used the State vs. Silvera case as an example of an aggravated felon who avoided deportation because he did not receive a presumptive term sentence. It highlights why the state needs to allow the federal system to enforce its own laws. She maintained that Alaska judges and district attorneys do not have the resources or time to become experts on federal immigration law. The way the law currently stands, Alaska judges are in the position to be making extremely weighty decisions that affect, not only an individual defendant's ability to remain in this country, but also affect public safety and the rights of crime victims. This bill would prevent that from happening. 2:41:25 PM MS. BLACK addressed the equal protection issue. She said when the court looks at whether or not a law violates equal protection or due process, the law has to be narrowly tailored to achieve a legitimate purpose. Protecting the public and ensuring victim rights are compelling state purposes. In addition, the court always looks to the class that is being affected by the law. There has been some indication that the class should be those who are subject to harsh consequences - those who are potentially subject to deportation. But, throughout its history, the court of appeals, when assessing whether or not there is an equal protection violation, doesn't look at the specific details of an individual defendant, they look at broader categories. In this instance regarding sentencing law, the courts have already upheld the presumptive sentencing laws and when they did so, they looked to the level of felony classification as the classification. She used all class A felonies as an example. 2:45:19 PM She discussed military personnel who were deported. She said Senator Dyson was correct in pointing out that they were required not to engage in misconduct. She pointed out that honorable service is required to earn U.S. citizenship. The Alaska legislature must ensure that its citizens are protected and that military personnel brought before a court will receive just and equal treatment by the court. She concluded that HB 218 would ensure that that happens. 2:46:51 PM CHAIR COGHILL said the argument is well laid out. He listed the questions he would like to explore and stated he would hold HB 218 in committee for further consideration.