The House wasn’t aware when it passed Senate Bill 54 on Monday night that an amendment passed on the floor could invalidate a key provision of the public safety bill, so at least those 40 legislators can plead innocence when the public asks why the outcome of every first-time class C felony case is tied up in months of legal disputes.
The Senate won’t have the same excuse.
Over the pleas of the state’s legal experts to fix the late-in-the-game discovery in conference committee, the Senate voted 11-8 this afternoon to approve Senate Bill 54 as-is and, as one senator described, “play the cards and see if the Legislature prevails.”
The problem is that the House amendment, sponsored by Rep. Lora Reinbold and supported by 25 of her colleagues, sets the sentencing range for a first-time class C felony as the same for a first-time class B felony, which is presumably a much more serious crime. The sentencing ranges for further convictions also overlap, but aren’t identical.
This matters because legal precedent on sentencing shows this is an unconstitutional violation of due process because, as a legislative legal memo explains, penalties must have a legitimate purpose. The same penalty for two different severities of crime, the courts have found, is unconstitutional because it “has no reasonable relationship to a legitimate governmental purpose.”
The problem didn’t come to light until Thursday morning, when the bill was already in the hands of the Senate (the bill was transferred to the Senate on Nov. 6 and the legal memo was issued on Nov. 8). It was the prime focus of the one Senate Bill 54 hearing the Senate held on Friday morning, where Criminal Division Director John Skidmore and Public Defender Agency head Quinlan Steiner asked it be fixed because it would assuredly draw a legal challenge.
Steiner said it will be an issue in every single case class C felony case.
“What we would do is file a motion in every case to declare that provision unconstitutional,” he said. “So every case, unless it’s settled by plea agreement, would involve this type of litigation.”
The end result is cases that go to trial, even if they reach a conviction, could be tangled up in months and months of litigation–likely culminating in a Supreme Court case–before a sentence is reached. It’s not an outcome anyone is likely keen on seeing happen.
If the court finds the provision is unconstitutional, then the sentencing guidelines for first-time class C felony convictions could revert back to Senate Bill 91, which would allow those offenders off with probation. Again, it’s not an outcome anyone is likely keen on seeing happen.
The impact a looming court case that could erase jail time for a conviction will have on the criminal justice system is unknown. Senators didn’t seem particularly concerned about this, suggesting that it could promptly be fixed when the Legislature returns in two months to the regular session.
Easy fix or wishful thinking?
Sen. Lyman Hoffman, a Bethel Democrat who caucuses with the Senate Majority, said he wasn’t convinced the Legislature had it in it to fix the bill so easily later on. He, like seven of his colleagues later in the afternoon, wanted to see the bill go to conference committee.
“There’s been a recommendation that we could shake hands and deal with it later,’ he said. “I don’t believe that’s ever worked in the past. If we see something that is wrong in the bill that is constitutionally challenging, we should not go forward to make that law and have it fixed later. If we see it’s wrong, we as legislators should fess up and fix it.”
The House, including some its hard-line members, had already made clear they were comfortable sending the bill to conference committee to fix the conflict, though they were upset that the problems hadn’t been raised earlier.
— Matt Buxton (@mattbuxton) November 11, 2017
Why the hurry?
Considering that the so-called catch-and-release situation created by Senate Bill 91’s sentencing guidelines was one of the main issues driving Senate Bill 54, the Senate’s decision was, at first, perplexing. There’s another week remaining in Gov. Bill Walker’s special session call.
But, then what happened moments later made their rush clear.
Minutes after voting on the bill, the Senate adjourned from the special session Sine Die. They departed with haste, leaving Gov. Bill Walker’s proposed wages tax (which was even crafted to appeal to the Senate’s opposition to a progressive income tax) untouched.
House Speaker Bryce Edgmon didn’t mince words in a statement released moments after the Senate adjourned, saying the move “jeopardized” the Legislature’s work to respond to the spike in crime.
“What we witnessed today by the State Senate was an abdication of their responsibilities. They allowed a constitutionally flawed bill to be sent to the Governor and they worsened the ongoing recession and fiscal crisis by refusing to even consider a new revenue proposal,” he said. “We can force the Senate back to Juneau but apparently we, and the Governor, can’t actually make them work.”
The consternation, though, doesn’t entirely add up.
There was a fair amount of concern voiced on the floor as the amendments were being approved, and the House could have held onto the legislation for longer before handing it off to the House. Additionally, the Senate appeared to be heading into the floor session without any knowledge of where the House or Gov. Bill Walker stood on the bill after the problem came to light, or at least ignored or didn’t bring up such knowledge. The strongly worded letter came well after the proverbial cow was out of the barn.
It’s unclear what happens next. Gov. Bill Walker could veto the bill. The House can remain in session, forcing the Senate to return but without an agreement to rescind the Senate’s concurrence vote such a move would be fruitless.