Despite warnings from some of the state’s top legal minds, the Alaska Senate on Friday approved a constitutionally problematic criminal justice reform bill, then adjourned the fourth special session of the 30th Alaska Legislature.
If Gov. Bill Walker does not veto the bill, a lawsuit could reset the possible penalties for first-time C felony criminals and prohibit judges from sentencing them to prison. Probation would be the only possible sentence.
“This bill, according to every legal expert that’s reviewed it, is unconstitutional,” said Sen. Bill Wielechowski, D-Anchorage, shortly before the final vote.
In testimony earlier Friday, attorneys from the Alaska Department of Law and the Alaska Public Defender Agency warned senators that a segment of Senate Bill 54 dealing with class C felonies likely violates constitutional protections for due process. Lawmakers attempted to boost sentences for first-time C felony offenders, but the attorneys said the conflict could instead reduce the possible penalty to probation alone.
The Legislature’s own attorneys and the American Civil Liberties Union previously warned lawmakers about the problem.
Nevertheless, senators persisted. Shortly after 4 p.m. Friday, they voted to advance the bill to Gov. Bill Walker and adjourn the special session. Speaking on the floor, they said speedily fixing Alaska’s criminal justice system was their top priority, and any problems may be fixed with future legislation.
The 11th and decisive vote was cast by Sen. John Coghill, R-North Pole and the original author of SB 54. Speaking to the Empire, Coghill said neither the House nor the Senate could keep enough members in Juneau to fix the problem with SB 54.
“That’s the tough part of this job. This is a citizen legislature, and people have things that they’re doing. Trying to get enough votes to keep a policy corralled and get a conclusion to it, this was the best conclusion under the time allotted to us,” Coghill said. “That’s, in my view, the crappy side of politics. It’s the painful side of politics.”
How did the Legislature get here?
Friday’s vote ends a frustrating chapter in Alaska’s struggle with criminal justice issues.
Last year, the Alaska Legislature passed Senate Bill 91, which promoted alternatives to long prison terms in an effort to reduce the number of people who return to jail after a first offense. If successful, that approach would reduce prison costs.
The passage of SB 91 has not led to an immediate drop in crime; in fact, most crime rates have increased as the state grapples with an economic recession and a wave of opioid drug addiction. That led for calls to repeal or roll back the measure, even though crime began increasing before SB 91 became law, and even though the measure will not be fully implemented until next year.
Gov. Walker responded to those calls by adding SB 54 to a special session that was expected to focus on dealing with Alaska’s $2.7 billion annual deficit. With the Alaska Senate reluctant to consider taxes, and neither the House nor the Senate interested in a bill spending a portion of the Alaska Permanent Fund, lawmakers devoted almost all their attention to criminal justice.
The Senate passed SB 54 in a 19-1 vote earlier this year, but the House didn’t consider the bill until the special session. House lawmakers considered dozens of amendments to the proposal, generally using SB 54 to increase prison sentencing options that SB 91 had limited.
What’s the problem?
Late Monday night, not long before the House voted 32-8 to approve a version of SB 54 significantly different from the Senate’s version, Rep. Lora Reinbold, R-Eagle River, introduced an amendment to increase the maximum amount of prison time for a class C felony, the lowest level of felony in Alaska law.
Rep. Jennifer Johnston, R-Anchorage, amended Reinbold’s proposal, and the House approved the amendment 26-13. The vote didn’t fall along party or caucus lines: independents, Republicans and Democrats were on both sides of the vote.
With the amendment accepted, SB 54 now allows judges to sentence criminals to 0-2 years in prison for a first C felony.
The problem: The sentence of 0-2 years for a first C felony is the same possible penalty as someone sentenced to a first B felony, supposedly a more serious crime.
Rep. Andy Josephson, D-Anchorage and an attorney, told the Empire after the vote that a lawyer could argue in court that the C felony sentencing range no longer makes sense.
“Having a C be equal to a B could be irrational,” he said, thus violating what the courts call “substantive due process.”
The problem wasn’t discovered until after the amendment was passed by the House.
In a memo to lawmakers, the Legislature’s chief attorney, Doug Gardner, wrote, “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.’”
The ACLU urged the Alaska Senate to fix the problem and threatened a lawsuit if it did not.
Why didn’t the Senate fix the issue?
Under the Legislature’s rules, if the House and Senate pass different versions of a bill, each side is given a chance to accept or reject the version approved by the other half of the Legislature. If the two sides don’t agree, a committee is formed to work out the differences.
“I believe we could get these resolved fairly quickly in the process of conference committee,” said Sen. Tom Begich, D-Anchorage, who spoke on the floor and urged lawmakers to send SB 54 to that committee.
It didn’t happen, and Coghill said after the vote that he wanted to work out the differences but ran into an issue of timing.
The Senate had members in Juneau who were prepared to work Friday and Saturday. The House did not. Many of its members were away from Juneau and expecting to be back in the Capitol on Monday.
The Senate was not prepared to wait that long, Coghill said. Many of its members had scheduled trips and were not expecting to stay in the Capitol next week.
“There was just too many moving pieces. My leadership team said hey, this isn’t going to work,” Coghill said.
After the vote on SB 54, the Alaska Senate ended its role in the special session. The House is still scheduled to meet on Monday, but the House cannot force the Senate to return to Juneau, and they cannot force the Senate to address any particular topic or item.
Speaker Bryce Edgmon issued a caustic statement about the Senate’s decision but said the House has not yet decided what it will do.
Gov. Bill Walker normally refuses to comment on bills before they reach his desk. He broke that tradition with SB 54. After the House passed its version with a 32-8 vote this week, he urged the Senate to agree with the House.
“I look forward to seeing the Senate concur, and to signing the bill when it reaches my desk,” Walker said in a statement released 1 a.m. Tuesday, before the constitutional issues were revealed.
It isn’t clear whether Walker has changed his mind.
If Walker signs the flawed bill into law, will that flaw be used in court?
“Yes. We will use whatever legal option we have to defend our clients,” said Grace Lee, an assistant public defender based in Juneau.
The ACLU was even more clear.
“The Senate was told by the ACLU of Alaska, the administration, and their own lawyers that this bill violates Alaskans’ constitutional due process rights. The fact that they are OK with trading our rights and freedom for political cover is exactly why so many Americans have come to hate government,” ACLU spokesman Casey Reynolds said by email. “It is also why the ACLU exists. We’ll see them in court.”
• Contact reporter James Brooks at firstname.lastname@example.org 523-2258.