Key provision of SB 54 put in jeopardy by tough-on-crime floor amendment

Something might be going on in there.The Alaska State Capitol building as photographed in 2010. (Photo by Kimberly Vardeman/Creative Commons)

In legislators’ hurry to be tough-on-crime, the House adopted an amendment over the weekend that further ratcheted up the sentencing guidelines for class C felonies, creating a sentencing range of between zero and two years behind bars for first-time offenders.

But as the dust settles, it appears the amendment put forward by Rep. Lora Reinbold, R-Eagle River, and supported by 25 of her colleagues could put the key provision restoring class C felony conviction penalties (SB 91 removed jail time for first-time C felonies to much outcry) on shaky legal ground.

As we noted at the time, the new sentencing range for first-time class C felonies also happens to be the same sentencing range for a first-time class B felony, which means an offender could end up with the same punishment for stealing something between $1,000 and $25,000 in value (a class C felony under current law) and something valued at more than $25,000 or more (a class B felony). The same goes for assault in the third degree and assault in the second degree.

Now, a widely circulated legal memo explains this could put the slate of changes legislators wanted to make to class C felonies into legal jeopardy because it violates the constitutional right to due process, which includes sentences that match the crime.

“The issue raises a substantive due process concern,” explained the memo by Legislative Legal Services. “The Alaska due process clause includes a guarantee of substantive due process, as well as the more frequently invoked guarantee of procedural due process. Courts have interpreted due process to provide for sentencing that is proportional to the level of the crime. A person’s right to substantive due process is violated if the person is subject to ‘a legislative enactment [that] has no reasonable relationship to a legitimate governmental purpose.”

In layman’s terms, the time has to match the crime.

The memo also notes that thanks to another guideline the House adopted for class C felonies, first-time offenders could actually face a harsher sentence than a class B felony.

So what’s that actually mean?

The real-world impact of this is explained in an email obtained by The Midnight Sun from Director of the Criminal Division John Skidmore to Attorney General Jahna Lindemuth (our emphasis added):

“In reviewing amendments to SB 54, there is one amendment that creates a significant risk of litigation. Amendment 12 from the House floor creates a presumptive range of 0-2 for the first time class C felonies. This is the same presumptive range that exists for first time class B felonies. Thus assault 2 and assault 3 have the same range, theft 2 and theft 1 have the same range, etc. This would be litigated and the end result could be the court reverting to the sentencing scheme in place before the change in law was made. That is first time C felonies would be sentenced with a presumptive of probation.”

That means, if challenged, the courts could revert the law to the guidelines set out in SB 91 of a suspended sentence on the first conviction. By going for tougher penalties, the Legislature stands to end up with nothing.

The ACLU of Alaska has already raised the possibility of a challenge, urging the Legislature to change the provision before sending it to Gov. Bill Walker.

“Passing SB 54 with the substance of Amendment 12 intact will completely undermine that goal by creating protracted litigation and countless media stories drawing attention to the unenforceability of SB 54’s unconstitutional provisions,” explained a letter by Tara Rich, ALCU of Alaska’s legal and policy director. “It is very possible that is the only takeaway average citizens will draw from this legislation, and any ‘tough-on-crime’ narrative you were hoping to create will be lost.”

No decision yet from Senate

The fate of the bill is now in the hands of the Senate, which can either vote to accept the bill as-is or reject it, potentially sending it to a conference committee where it could be fixed by either reducing the penalty or, perhaps, increasing the penalty on first-time class B felonies. Senate Bill 54 sponsor Sen. John Coghill is already pushing for the Senate to reject the as-drafted bill and this revelation, which comes from a legal memo he requested, will likely add fuel to that argument.

The Senate leadership appears to be fully aware of the issue, but today sidelined the vote until at least Friday. The Senate Finance committee is scheduled to hear an update on the bill–and its updated cost–at a hearing 8 a.m. Friday.

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