SENATE JUDICIARY COMMITTEE June 30, 1995 9:00 a.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller MEMBERS ABSENT Senator Al Adams Senator Johnny Ellis ALSO IN ATTENDANCE Senator Loren Leman COMMITTEE CALENDAR OVERSIGHT HEARING: POLICIES REGARDING CHARGE BARGAINING WITNESS REGISTER Laurie Otto, Deputy Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Shannon D. Hanley, Chief, Assistant District Attorney 3rd Judicial District Department of Law 310 K St., Suite 520 Anchorage, AK 99501-1975 Kenneth J. Goldman, District Attorney 3rd Judicial District Department of Law 310 K St., Suite 520 Anchorage, AK 99501-1975 Robert Bundy, U.S. Attorney for District of Alaska Anchorage, AK John Salemi, Director Public Defender Agency 900 W 5th Ave., Suite 200 Anchorage, AK 99501-2090 Kevin O'Leary, Police Chief Municipality of Anchorage P.O. Box 196650 Anchorage, AK 99519-6650 Mike Williams, Budisness Advisor Chugach Alaska Corporation 560 E 34th Ave. Anchorage, AK 99501 Janice Lienhart Victims for Justice 619 E 5th Ave. Anchorage, AK 99501 Brant McGee, Director Office of Public Advocay 900 W 5th Ave., Suite 525 Anchorage, AK 99501-2090 Dr. Teresa Obermeyer 3000 Dartmouth Drive Anchorage, AK ACTION NARRATIVE TAPE 95-35, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting to order in the Anchorage LIO conference room at 9:00 a.m. In his opening remarks, SENATOR TAYLOR referred to an incident known as the Franklin case, which occurred recently in Anchorage, and he said the main purpose of the hearing was to find out if, in fact, it is an anomaly, and, if not, what suggestions or solutions might be posited by various members of the public and the agencies so as to make certain that a Franklin case does not occur again. Ancillary to that, he thinks it is important to understand if, in fact, there has been any shifting of policy within this administration or within previous administrations as concerns the manner in which plea bargaining or charge bargaining is occurring in the state of Alaska. He then invited Laurie Otto to testify before the committee. LAURIE OTTO, Deputy Attorney General, Department of Law, stated she thinks the Franklin case was an anomaly, that the department did not handle it properly, but she hopes through the testimony there will be understanding of the circumstances that led up to that case. MS. OTTO, in presenting an overview on plea bargaining in the state of Alaska, said all states, the federal government, all other jurisdictions have plea bargaining as a part of their criminal justice system. However, in 1975, former Attorney General Av Gross forged new ground by banning plea bargaining in Alaska. He had concluded that justice was not being served, just results were not being reached, that there were greatly disparate sentences being agreed to in different parts of the state, and he thought the solution was to ban plea bargaining. There was a great deal of resistance to the ban, especially among the law enforcement community, because of concerns about it overloading the system. She added that it did have a significant impact on the system. In 1980 the plea bargaining ban was relaxed to allow dismissal of multiple counts if somebody pled to the most serious charge with no sentencing deals allowed. That same year the legislature passed presumptive sentencing, which mandates specific sentences for specific crimes. As the courts applied the presumptive sentencing laws, they developed what they called "benchmark sentences" and, as a result, it could be determined what sentence somebody was going to get just by reading the court opinions. In 1986 the plea bargaining policy was relaxed further by allowing greater latitude to enter into plea agreements with authority granted by somebody in the Criminal Division central office. Over the years, from 1986 through 1991, those kind of negotiations, both charge and sentencing bargaining, started happening with greater and greater regularity. The Alaska Judicial Council did a study on plea bargaining in 1991 and concluded that there was an official ban on plea bargaining in Alaska, but, in reality, there was fairly widespread plea bargaining going on. The Council recommended that the attorney general evaluate the propriety of engaging in plea bargaining, promulgate a policy for the department and live with the policy. Following publication of the study, former Attorney General Charlie Cole undertook that task, and then in 1993, he concluded that the ban on plea bargaining should be lifted because plea bargaining formed a valuable function in our criminal justice system, and that is now the policy of the department. Ms. Otto said when she returned to the Department of Law after a four-year hiatus, she was shocked by the increase in plea bargaining and the quality of the deals that were going on. She referred to and discussed a handout on statistics she has gathered entitled "Felony Percentages." She found that in Fairbanks 75 percent of the people who were charged with felonies by the DA's office were convicted of a felony offense. Of those, 63 percent were convicted of the crime with which they were charged, and only 7 percent were convicted of a misdemeanor. In looking at the Anchorage DA's office of the cases that were filed as felonies in FY 94, only 42 percent were convicted of felonies, 40 percent were convicted of misdemeanors and only 27 percent were guilty as filed. She then asked Shannon Hanley to discuss what was happening in Anchorage that led to these numbers. Number 175 SHANNON HANLEY, Chief Assistant District Attorney in Anchorage, who has been with the Criminal Division since 1991, said when she went to work there, she observed an aggressive policy of plea bargaining going on in Anchorage, and the reason for this aggressive policy of plea bargaining was because of the way that the office was set up. There was an intake unit to which three attorneys were assigned, and they were responsible for all of the felony cases that came into the Anchorage District Attorneys Office. Between 1991 and 1994, a number of attorneys were recruited and hired. A lot of those attorneys were brand new to the state, and although they had experience prosecuting in other areas, they had to pass the Alaska Bar, become familiar with the Alaska rules, and get up to speed as trial attorneys in Alaska. There were also attorneys who had been in the misdemeanor unit who were being promoted into the felony unit and did not have a great deal of felony experience. So, in essence, in the period of 1991 to 1994, the Anchorage District Attorney's Office was weak on strong felony trial attorneys. This resulted in a good deal of plea bargaining. By the end of 1994, the policies were very well established. They were relied on by the court system, they were relied on by the Public Defenders Agency. At the end of 1994, Ken Goldman was appointed as the Anchorage District Attorney. Number 275 KEN GOLDMAN, Anchorage District Attorney, said when he came to the Anchorage office in 1994, he evaluated the system for about two months. He found there was a high volume of cases (approximately 4,000 cases last year and approximately 2,000 of them were felonies) and the mandate to the head of the intake unit was to control the flow of cases to the trial attorneys, to keep the cases getting down to the trial attorneys to be very minimal and to resolve everything that could be resolved. He said the result was that in order to resolve the cases, you had to basically give away the cases whether they were good cases or bad cases. Mr. Goldman pointed out that crime has gone up in Anchorage, their prosecutions seem to have gone down, and the number of judges assigned to the criminal bench have gone down. When looking at numbers in Anchorage, the assaultive crimes, both felonies and misdemeanors, as well as robberies have taken off. As part of his evaluation of the system, Mr. Goldlman looked at what was going in the office and he talked to almost everybody in the law enforcement community to ask what was happening and what could be done to fix the problem. He found the police were very unhappy as to how the cases were being resolved. They would bring in good cases and they would get resolved relatively cheap. There was also a great deal of concern about the time it was taking to resolve cases. The trial attorneys were getting the cases from the intake unit and they were coming down with these deals. They didn't like the deals, but it was the mandate they were given. The plea bargains Mr. Goldman saw were pretty much always favorable to the defendant. Number 400 SENATOR TAYLOR commented that we still have the same attorney general today that we had 18 months ago, so it all depends on which boss we want to blame for the problem. LAURIE OTTO said the person who was in her job before she took it had a personal relationship with the former governor and the decisions that were being made in the Criminal Division were generally being made by the governor, not by the attorney general. She said this governor has made it clear to the attorney general that he is responsible for what happens in the Department of Law and that he expects her to be responsive to the attorney general. Number 450 KEN GOLDMAN said to address the problems, they redesigned the office with a long range result in mind and created two additional units: the property crimes unit and the violent crimes unit. When they opened the property crimes unit, the flood gates opened in their office, but things have leveled out and they have gotten rid of the backlog that was sitting there for six months to a year. The same is true with the violent crimes unit. The concept was, if they have the best prosecutors in the office assigned to do the most high risk cases and they sit down and discuss how to resolve these, they are going to have attorneys who are not afraid to go to trial, attorneys who know what a case is worth, and, hopefully, resolve a case. Mr. Goldman said they wanted to bring back the respect to the system and the basic protection to the public. The office is now having faster response time to the police and faster response time to the victims. The attorneys' caseloads and workloads have increased, but the attorneys have more control over their cases. They are getting earlier indictments, they are getting more indictments, and they are getting a chance to evaluate the cases by talking to the victims and witnesses more when the memory fresh. Depending upon the case, more of a case-by-case assessment is taking place because now the intake unit is doing one thing: they are looking at and evaluating those cases as they come in. The cases are then sent to the Violent Crimes Unit where they are reevaluated. Mr. Goldman spoke to the impact the changes have had on the court system where previously there were five criminal court judges, but that number has been reduced to three, which has resulted in increased caseloads for the judges. TAPE 95-35, SIDE B Using a chart, Mr. Goldman gave an in-depth overview on how offenders are classified and charged. Number 090 SENATOR MILLER asked what the overall difference in philosophy was that resulted in the Fairbanks office having a 75 percent conviction rate of felonies while the Anchorage office has a 42 percent conviction rate. LAURIE OTTO responded that if you go back before 1991, the offices were much more similar, but she thinks that part of is that they brought people into the Anchorage office who grew up in a system where there was plea bargaining, which is every place in the country. This period of time in Anchorage is anomalous over the years. What was happening in Fairbanks, Palmer and the rest of the state is much more typical and had been much more typical. SENATOR MILLER asked if for the last four years the philosophy in Anchorage was to just get these cases off of the books any way possible. SHANNON HANLEY agreed that was pretty much the policy she saw when she arrived in Anchorage in 1991. The goal was to negotiate the cases and have them resolved by negotiation as opposed to trial. At least part of it started out because the office was in turmoil in 1991 in terms of there were a greatly reduced number of attorneys that year. That policy was continued because new attorneys were being trained and, at some point, the policy was in effect because there were only three attorneys handling every felony that came into the office. KEN GOLDMAN added that there were major differences in the Fairbanks system and one of the major differences was a tighter management control. In the Anchorage office in 1991 there was much more concern about media publicity and looking good. He said they have brought a lot of changes to the office and they are constantly refining the system. He said unfortunately it takes cases like Mr. Franklin, who squeaked through the system and whose case is an anomaly, to show you where to modify and where to refine. He said his bottom line is to take back control and look more at what is happening. Not that he hasn't been, but the sheer volume in the Anchorage office makes it such that he can't have the same control he had in Palmer or is exercised in Fairbanks where there are lesser cases. Number 185 SENATOR TAYLOR, referring to the Franklin case, said it appears that this man received special courtesy and special treatment because he violated the law at another field. He was using illegal drugs and because he has a habit of misusing and using illegal drugs, he ends up with a sentence where he is told to go clean up his act. He asked what they do with a guy that isn't using drugs. KEN GOLDMAN responded that Mr. Franklin got 90 days in jail as part of his agreement. He said it is possible that individual prosecutors would have asked for a lot more time in jail and that he get a conviction of record, but part of the problem with the process is that the bulk of the people that they see have substance abuse problems. The goal that the court is always jamming down the prosecutors throats is rehabilitation. LAURIE OTTO said people who have cocaine problems in addition to the crimes that they commit, in general, are treated more partially than people who don't. However, she said she disagrees with how the Franklin case was handled, and no longer in Anchorage are they going to agree to SIS's on robbery II. They have fixed the problem by prohibiting, as a matter of policy, prosecutors from agreeing to an SIS in robbery II cases, and to make sure that this is enforced they are requiring any agreements to be run by the unit supervisor and, in serious cases, by the district attorney. Number 265 SENATOR TAYLOR asked how they intend on using Rule 11 in the future with judges. LAURIE OTTO explained that a Rule 11 agreement is one where there is a sentence agreement between the state and a defendant. That goes before the judge and the judge has the authority to either accept or reject the agreement. There are two kinds of SIS's that they do: one where the state agrees to a specific sentence and the other where the state agrees that a person get a suspended imposition of sentence. She said she doesn't like sentence deals and that they should only be done in rare cases. KEN GOLDMAN said in most cases he is opposed to sentence deals, and it is his theory that is what the judge was elected to do, but the reality of the Rule 11 program is that 25 to 30 percent of the felony cases are resolved this way. SHANNON HANLEY noted that in the past, judges have declined to take some of their Rule 11 agreements, and, when that has happened, often times those cases go to trial or are renegotiated in some manner to make it more palatable to the judge. The sheer volume of the cases that they had in Anchorage is the reason why they went to the Rule 11 program. Number 375 LAURIE OTTO directed attention to a chart with statistics on what is happening in Anchorage since Mr. Goldman has taken over as district attorney for the Anchorage office. In 1995 it shows a doubling of the cases that are going to grand jury as a result of not doing deals. Ms. Otto pointed out that the number of district attorneys has gone down slightly in the last couple of years, but comparatively, there has been a gigantic jump in the number of cases coming into the office. She believes the biggest problem in our criminal justice system right now is underfunding and it is system wide, not just in the DA's office. She emphasized that in order to make the criminal justice system work, the legislature has to provide the money for prosecutors, public defenders, judges and jails. She also spoke to the impact that new laws passed by the legislature without adequate funding have on the system. Number 485 SENATOR TAYLOR commented that if the Mr. Franklins of this world had been kept in jail they would not have committed the subsequent felonies that we are seeing. However, he believes the only answer is not just throwing more money into the system; a lot of it may have to do with attitude and philosophy within the department. Number 540 ROBERT BUNDY, U.S. Attorney for the District of Alaska and a former assistant district attorney in the Anchorage office, said those two offices work closely together. It has been his perception that over the last four to five months the state is taking more cases and proceeding with felony charges. There are a lot of federal mandatory minimums in place with regard to possession of firearms, drug cases and others that depend on a prior felony conviction, be it state or federal, so when people were give misdemeanors, sometimes that made it tough. He has seen that policy in the DA's office change so that they more reliably will have a felony conviction. Number 615 SENATOR TAYLOR pointed out we often hear the words "plea bargain" used and that plea bargain is the structuring of a sentence agreement between the prosecutor and the defendant, but at least on the plea bargain under Rule 11, the court, itself, has an opportunity to either accept or reject. He said when we see the charge bargaining that was so graphically illustrated as a guideline going on in the Anchorage area, the judge has no control over that. TAPE 95-36, SIDE A Number 001 JOHN SALEMI, Director, Alaska Public Defender Agency, said the agency represents individuals who are accused of crimes, and those people are interested in getting strong and competent legal representation. In the context of plea bargaining, the agency's role is to negotiate with the district attorney if it is the kind of case where there is the possibility of a negotiated disposition and to do their best, given the facts at hand, to reach a fair and favorable result for their client if they can. However, the agency does not make decisions about plea bargains; they only communicate the tenor of the negotiations and the result of their negotiations. Mr. Salemi related that the way that plea bargaining and charge bargaining occurs in Alaska is very restrictive when compared to other jurisdictions. Also, in comparing what is going on in other markets to what is happening in Alaska you find that the people that are sentenced to do jail time do jail time, and the state has significant restrictions with respect to parole eligibility. Mr. Salemi said that although the Franklin case has been characterized as an anomaly, he thinks it is now serving a useful purpose because the scrutiny that is now being given to the system is healthy and it will be helpful. Mr. Salemi noted that the agency is seeing a tightening up of the screening policy of the DA's office in Anchorage. They are taking a tougher look at serious felony cases and they are reluctant to make reductions which may have been offered in the past. Number 100 KEVIN O'LEARY, Chief of Police, Municipality of Anchorage, directed attention to a graph entitled "Uniform Crime Reports" giving numbers on the reported felony cases investigated by the members of the Anchorage Police Department. He pointed out that the volume of crimes in Anchorage is significant and it has gone up since 1990 with the increase in population. Chief O'Leary related that prior to making the changes that have occurred in the district attorneys office, which the department supports, Mr. Goldman took a lot of time to meet with police staff and to educate the commanders, street officers and detectives on the changes they were planning on making, as well as taking feedback from them. Prior to these changes, there was a high degree of frustration among officers who worked cases and are very skilled at what they do. When they would take a good solid case in and it would disappear. Chief O'Leary also spoke to the need for more funding for the criminal justice system, as well as more interagency cooperation. Concluding, Chief O'Leary stated the biggest concern he has with respect to the criminal justice system is with the Department of Corrections. He expressed his appreciation that the legislature put some money back into the department because it one of the biggest problems the state has. Number 150 SENATOR TAYLOR spoke to his concern with the dramatic increase in stolen vehicles in the Anchorage area, especially by juveniles, and the fact that the juvenile justice system is not working. CHIEF O'LEARY agreed it is big problem, and he related that the penalties for the offenders don't come from the juvenile justice system, but, instead, from the school districts with suspensions from school. SENATOR TAYLOR asked Chief O'Leary for his comments on whether or not the Cleary decision is working. CHIEF O'LEARY responded that it clearly has an impact on corrections. They are under sanctions to the state to keep the inmate level at a certain level, and if they go above that cap, then they are being fined. It has an impact, systematically, on the magistrates, because when they have a individual before them, most often that individual is released to a third party or under their recognizance because of overcrowding in the jails. It has an impact on the police department in terms of their ability to place prisoners, as well as non-criminal committals which are the inebriate problems, because there is no facility in Anchorage that addresses that problem. He said it is working from the perspective that it is limiting the number of people that can be placed in the prisons, but it does create a very serious system-wide problem. He also said he believes that the Cleary decision needs to be revisited. Number 300 MIKE WILLIAMS, Business Advisor for Chugach Alaska Corporation, said Chugach has been working with Corrections Corporation of America, which has the ability to finance, design, build and operate correction facilities. He said Chugach Corporation has talked to the administration and the Municipality of Anchorage to let them know that there are private corporations out there who are willing and able to fill any gap, which they believe will be at a lower cost. Number 355 JANICE LIENHART, representing Victims For Justice, stated she has been impressed with the District Attorneys Office taking time to listen to the victims when they have done plea bargaining, and she sees this being done more and more. However, in working with the victims of crime, she finds that the system, because of money, is impairing public safety because there isn't the money to incarcerate criminals. The laws are being redefined so that we are letting more dangerous people on the street, so we are constantly seeing more and more people victimized. She believes the problem starts in the juvenile system, and she suggested that until we start again being proactive and making kids accountable for their actions, there will never be enough prisons. Number 430 SENATOR GREEN commented that one of the things that the Health, Education and Social Services wants to look at is the role of parents' parental rights and how that has literally turned around behaviors. Number 500 BRANT MCGEE, Director, Office of Public Advocacy, said he thinks it is ironic that DA's office is being criticized for plea bargaining, although he thinks that office can be justly criticized for the result in the Franklin case, which he attributed to human error. He said it is unfair to criticize the DA's office because of a failure involving a systemic problem regarding plea and charge bargaining, especially where there is dramatic evidence that plea and charge bargaining has been tightened up during the past six months. He added that charge bargaining is far more difficult to achieve for defense attorneys and the plea bargains are nearly impossible to achieve for defense attorneys in Anchorage. Mr. McGee said since Mr. Goldman has implemented some policy changes in the DA's office, the Office of Public Advocacy has seen a substantial increase in trials, and it is far more common for cases to go to trial than it was six months ago. He believes the office is being run much better since Mr. Goldman has taken over, although he disagrees with a number of his policies. TAPE 95-36, SIDE B Number 075 SENATOR TAYLOR asked Ms. Otto is she would recommend taking every step possible to overturn and rewrite Cleary. LAURIE OTTO responded that Cleary is a order of the court, it is not an agreement at this point. The Executive Branch is obligated to comply with the court order that is entered in Cleary. There are circumstances under which the Supreme Court allows the state to argue changed circumstances as a way of getting out from under consent decrees, but they are very limited. She said it may be that the legislature is interested in looking at these things, but the Executive Branch, by the terms of the order, is bound to follow it or else they will be held in contempt. SENATOR TAYLOR said if we can't find opportunities to challenge it through the court system, then maybe it should be done through the legislative system. He asked Ms. Otto if she would work towards that and encourage the legislature to do so. LAURIE OTTO answered that she was sure that they would work with the legislature consistent with what they believe is the best corrections policy and what they are able to do without being contemptuous and violating their obligation to comply with an existing court order. Number 300 [THE COMMITTEE RECESSED FOR LUNCH AND CAME BACK TO ORDER AT APPROXIMATELY 1:30 P.M.] DR. TERESA OBERMEYER of Anchorage spoke to various frustrations she has with the legal system at the state and federal levels. SENATOR TAYLOR reminded her that the purpose of the meeting was to get public comment on charge bargaining and plea bargaining. There being no further witnesses to appear before the committee, SENATOR TAYLOR adjourned the meeting at 1:45 p.m.