Criminal sentencing procedures change

March 25, 2005

KATE GOLDEN/Frontiersman reporter

JUNEAU - Judges now have more power to increase prison sentences, ending a half-year of limbo for lawyers in the Alaska criminal justice system.

Tuesday, Gov. Frank Murkowski signed into law Senate Bill 56, which changes set prison terms to a range of terms, after the bill was approved unanimously in both houses of the Alaska State Legislature. The bill was sponsored by Sen. Gene Therriault, R-North Pole; Sen. Ralph Samuels, R-Anchorage; Sen. Ralph Seekins, R-Fairbanks, and Rep. Lesil McGuire, R-Anchorage.

Since the late 1970s, presumptive sentences in Alaska have been single, definite terms that act as both the minimum and the maximum sentence. Judges finding a crime particularly egregious would increase the term of the sentence beyond the set term for the offense's class.

But a U.S. Supreme Court decision last summer threw the justice system into confusion. In Blakely v. Washington, the court ruled that the Sixth Amendment right to a jury trial requires that a jury, not a judge, determine whether aggravating circumstances exist.

Chief Assistant Attorney General Dean Guaneli said that for the last half-year, Blakely left lawyers in a frustrating limbo of the "various judicial opinions swirling around." Nine cases were appealed on the basis of the decision.

"That's a lot on one particular legal issue," Guaneli said.

Two judges went so far as to strike down the entire sentencing statute as unconstitutional.

Moreover, the separate jury trials required to determine aggravating circumstances had "potential for enormous costs," Sen. Therriault said in a press release.

Cost reduction speaks to legislators. But Guaneli said that at least for prosecution, costs weren't the most important advantage of the new bill.

"I think the real impact is going to be on juries," he said.

After Blakely, juries generally had to make the usual finding on guilt or innocence, and then had to deliberate again on aggravating factors.

Other states were affected by Blakely, but with set terms, Alaska's statute was "a little more rigid," Guaneli said. "We've loosened it up to give judges more discretion."

The set terms of imprisonment from the old statute now appear as minimum terms in a range. For example, the old statute set a first-time felon's sentence for a class A felony at five years; now the statute provides for five to eight years. Judges also have broader authority to impose probation supervision periods.

Guaneli contended the intent was not to increase sentences, but to give sentencing power to judges. A judge can sentence within the statutory range without having to get a jury's approval of aggravating circumstances.

Defendants sentenced within the presumptive range for their offenses cannot appeal their sentences as excessive, the revision states.

But Rachel Levitt, supervising attorney of the Palmer Office of Public Advocacy, said the Blakely cleanup may generate as many appeals as the original decision.

"We think that this bill was effectively an effort to subvert the holding of Blakely and increase sentences across the board in felony cases, and that will likely be the outcome," she said.

SB 56 changes criminal law in other ways besides its Blakely-related changes:

€ The bill adds a new aggravator: defendants with five or more prior class A misdemeanor convictions may serve lengthier sentences. Before Tuesday, only prior felony convictions could be considered.

€ It also adds a new mitigating circumstance for defendants with mental diseases or defects, and those who are actively participating in state-approved treatment programs at the time of their sentencing.

The narrowness of the provision, which applies only to drug and property crimes and not to violent offenders or defendants with prior felony convictions, raised concerns for defense attorneys.

Case law in Alaska has not been well developed on mental-health rehabilitation issues, Levitt said. But the less explicit pre-SB 56 mitigators allowed for more rehab possibility.

"We have fewer and fewer resources to direct our clients for rehabilitation," she said.

€ It limits the ability of judges to order "periodic" sentencing, in which a convict is allowed to leave prison periodically and return, to defendants with preexisting employment obligations and up to two years' total sentence.

Periodic sentencing arose in the late 1970s, Guaneli said, to protect defendants from undue duress. "If your livelihood is that one month of fishing season," he said, a two-month prison sentence shouldn't deprive you of your entire annual income.

But he said the judges' ability to take people out of jail got out of hand. Somebody who wanted to attend a potlatch or a funeral might get out just for the weekend.

"That presented real problems for correctional officers," Guaneli said. "There's pressure put on inmates to bring back drugs, and then you have to strip-search."

SB 56, he said, brings back the original idea of periodic sentencing.

€ Before Tuesday, law-enforcement officers could not arrest a probationer or a parolee for violating their court- or parole-board-given conditions of release without a warrant from a court. As of Tuesday, they can do so.

The impetus for the changes, Guaneli said, was a case in which a police officer who saw someone whom he knew had been convicted for drunken driving violating his probation conditions at a bar. After asking the man's probation officer for direction, he arrested him. But the judge threw the arrest out, because the police officer had no warrant.

But Levitt called the change "extraordinary." She wondered what law-enforcement officers would understand to be required as necessary evidence.

"This will likely be the subject of a lot of intense scrutiny and challenges in the particular cases," she said.

Contact Kate Golden at 352-2284 or kate.golden@frontiersman.com.