ACLU says judges would invalidate crime law provision, but prosecutors see a solution

Legal challenges to legislation passed last week that would revise criminal sentencing could focus on whether one provision is unconstitutional.

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If Gov. Bill Walker signs Senate Bill 54, American Civil Liberties Union of Alaska lawyer Tara Rich expects defense attorneys to file lawsuits almost immediately.

Rich said the ACLU would be joining them, because it considers one part — which says that people arrested for committing class C felonies for the first time face the same range of sentences as those charged with more serious class B felonies — unconstitutional.

“If there’s no rational basis for the Legislature to completely fail to distinguish between these two separate levels of crimes, then it will be struck down as violating due process rights,” Rich said.

The ACLU and state prosecutors raised similar concerns about the provision with lawmakers last week.

But state Criminal Division Director John Skidmore said Tuesday that judges may not strike down the law.

In fact, Skidmore said he expects the courts will work out a solution.

“The courts in Alaska will find a way to interpret the statute … in a way that avoids any constitutional issues,” Skidmore said.

Skidmore said judges would likely do this using what are called benchmarks.

“Instead of the Legislature giving specific sentencing ranges, the courts step in and provide a sentencing range within what the Legislature has already given them,” Skidmore said.

In the case of first-time class C felonies, Senate Bill 54 says sentences should be between zero and two years, the same range as for first-time class B felons.

Judges could set a benchmark at the low end of the range for the less-serious C felonies.

The House had added the C felony sentencing provision as an amendment.

Skidmore raised concerns about the issue before the Senate decided to agree to the House version of the bill.

“The Department of Law obviously prefers to avoid litigation, like what we will encounter, which is why we recommended that this issue be resolved by the Legislature in conference committee,” Skidmore said.

But that didn’t happen.

Rich said the lawsuits will be filed quickly if Walker signs the bill, because the lawyer for anyone charged with a first-time class C felony would seek to plea bargain.

And negotiating for that plea would depend on how judges interpret the law.

Rich made a different prediction than Skidmore – that courts will invalidate the class C felony provision, and cause that portion of the law to revert to what it is under the controversial Senate Bill 91. First-time class C felons face only suspended sentences under the law, instead of automatic jail time.

“As soon as a defense attorney receives a first-time C felony under SB 54 – once SB 54 becomes law – if they believe that it’s unconstitutional and that a court would most likely rule that it should return to the original SB 91 sentencing scheme – that is how they would operate in negotiating the case,” Rich said.

Rich said the ACLU was disappointed with other changes the House made on the floor.

“They’re ratcheting up criminal penalties and packing the bill with amendment after amendment like cans of sardines,” Rich said.

ACLU concerns also include a provision that affect the length of sentences for people who commit class A misdemeanors for the second time, and for those who commit disorderly conduct.

Rich pointed to evidence that the disorderly conduct sentencing would disproportionately affect Alaska Natives.

Senate President Pete Kelly and House Speaker Bryce Edgmon must sign Senate Bill 54 before it goes to Walker. The governor would then have 20 days, not including Sundays, to sign it into law.