Justice Reinvestment in Alaska: the Past, Present, and Future of Sb 91

• Citation: Vol. 34
• Publication year: 2017

§ 34 Alaska L. Rev. 237. JUSTICE REINVESTMENT IN ALASKA: THE PAST, PRESENT, AND FUTURE OF SB 91

Alaska Law Review
Volume 34, No. 1, June 2017
Cited: 34 Alaska L. Rev. 237

JUSTICE REINVESTMENT IN ALASKA: THE PAST, PRESENT, AND FUTURE OF SB 91

Michael A. Rosengart ^[*]

ABSTRACT

In the summer of 2016, Alaska Governor Bill Walker signed SB 91, a landmark criminal justice reform law that implements a "justice reinvestment" program. SB 91 aims to reduce Alaska's prison population, cut corrections costs, and then reinvest savings back into the state to improve public safety and reduce recidivism. It is 193 sections long and is likely the most substantial change to Alaskan criminal law since statehood. It also comes at a time when similar legislation, spearheaded by the Justice Reinvestment Initiative, is proliferating through the country. This Note overviews Alaska's corrections problems that prompted SB 91, discusses the law's legislative history, highlights some of the most important changes the law makes, and introduces some of the issues that it may present going forward.

EDITOR'S NOTE

This Note was being finalized for publication between November 5 and November 17, 2017. On November 7, the Alaska House of Representatives passed an amended version of SB 54, which had originated in the Senate in the spring and made changes to SB 91, by a thirty-two to eight vote. On November 10, the Senate voted to concur with the amended House version. SB 54 passed despite concerns about the constitutionality of a change the House had made to class C felony sentencing. Because of the limited opportunity to review the House version of SB 54 before publication, those amendments are not considered in this Note. All references to "SB 54," therefore, are to the version passed by the Senate in April 2017, which did not include the constitutionally suspect provision.

INTRODUCTION

Between 2007 and 2016, thirty-three states attempted criminal justice reform through "justice reinvestment." ^[1] Justice reinvestment is about using data and evidence-based practices to strategically remove individuals from the corrections system, or reduce their exposure to the corrections system, and then using the resulting money saved to enhance public safety. Although this idea is straightforward, the details of who spends less time in prison, by what means, and then how the savings get reinvested are not.

In Alaska, the game in town is Senate Bill 91, more commonly known as "SB 91." ^[2] At its core, SB 91 implements justice reinvestment by imposing less punishment on offenders who do less harm to the community and are less likely to reoffend, and reinvesting savings from averted prison growth into practices and strategies shown to reduce recidivism. Signed into law in the summer of 2016, SB 91 is likely the largest revision of Alaska's criminal justice system since statehood. ^[3] It implements twenty-one policy recommendations made by the Alaska Criminal Justice Commission (ACJC). ^[4] The ACJC-chaired by Gregory P. Razo, a director of the Alaska Native Justice Center-is a group of stakeholders from across the criminal justice system, including judges, legislators, law enforcement officials, attorneys, and advocates, tasked by the legislature with evaluating the state's criminal justice system and making recommendations for reform to the legislature. ^[5]

In April 2015, the ACJC engaged the Justice Reinvestment Initiative (JRI) to assist in researching the causes and consequences of Alaska's growing prison population problem, ^[6] which had grown at a rate of 27% from 2005 to 2015. ^[7] The JRI is a partnership between the U.S. Department of Justice's Bureau of Justice Assistance and The Pew Charitable Trusts that was formed in 2010 to assist states with developing "cost-effective and evidence-based strategies" for decarceration. ^[8] Based on findings the JRI helped establish, the ACJC released its Justice Reinvestment Report in December 2015. ^[9] The Justice Reinvestment Report makes twenty-one recommendations that fall into four categories: (i) adjustments to pretrial practices through reforms grounded in empirical data; ^[10] (ii) shifts to the criminal code's sentencing structure so that prison capacity is concentrated on serious and violent offenders, rather than low-level nonviolent offenders; ^[11] (iii) improvements to re-entry, parole, and probation practice; ^[12] and (iv) additional oversight and accountability to the criminal justice system. ^[13] SB 91 implements these recommendations.

Within months of SB 91's passage, the ACJC and the legislature became aware of problems with the new law. ^[14] In response to input from the public and law enforcement, the ACJC offered fourteen new recommendations in January 2017, mostly revising SB 91 provisions. ^[15] Senator John Coghill, SB 91's main sponsor, introduced SB 54 the following month, ^[16] and it passed the Senate by a nineteen-to-one vote on April 7, 2017. ^[17] Uproar grew in September 2017, though, after the Department of Public Safety released its annual crime report for 2016, showing significant increases in crime almost across the board. ^[18] In response, Governor Bill Walker announced that action on SB 54 would therefore be a priority in the late October 2017 special legislative session. ^[19] SB 54, if passed, would make three noteworthy changes, which are discussed herein.

This Note contextualizes SB 91 both within Alaska and in the broader field of contemporary criminal justice reform to provide a starting point for discussion and evaluation of the law's reforms. Part I summarizes Alaska's criminal justice landscape, particularly the history of the state's criminal justice laws, the legislative history of SB 91, and the work of the ACJC. Part II illustrates how the ACJC's recommendations were translated into legislation. Part III highlights some potential concerns about SB 91 based on justice reinvestment efforts in other states, academic discussion of criminal justice reform, and the political realities in Alaska. However, this Note is neither an exhaustive nor authoritative summary of SB 91. Many of the law's 193 sections are not referenced, and some provisions that are discussed may have unmentioned exceptions. Instead, this Note intends to provide a foundation to prompt further discussion amongst stakeholders.

Ultimately, it is too soon to say with certainty how the relatively new idea of "justice reinvestment" will shape Alaska's criminal justice system in the long term. Moreover, SB 91 is an aggressive endeavor compared to justice reinvestment legislation in other states, making comparison difficult. Nevertheless, there are good questions to be asked about whether justice reinvestment is the "right way" to resolve the American and Alaskan mass incarceration problems, and if justice reinvestment is even capable of combatting mass incarceration at all. Put another way, do reforms, like those in SB 91, meaningfully reduce crime, or do they just cap prison populations with any improvement in crime rates merely incidental? Relatedly, SB 91 makes several key tradeoffs. Evaluating the law will therefore be crucial, and so are determinations of how to make those evaluations. Given the nature of the legislative process and the legislature's stated goals, "success" will presumably be based on data: the state's prison population, corrections budget, and the returns on reinvestment. But some argue that a data-driven framework misses the mark and suggest alternatively that criminal justice reform should be evaluated on the basis of fair justice, community safety, and pathways away from crime. This Note seeks to start these important discussions.

I. THE PAST: THE ROAD TO SB 91

Alaska's bloated prison population traces its roots back to the 1990s and early 2000s when the state, like the rest of the country, adopted a "tough on crime" posture. ^[20] As Senator John Coghill, who shepherded SB 91 through the legislature, later reflected, reacting to crime by expanding the reach of criminal offenses and the severity of sentences was "easy." ^[21] At that time, as Coghill put it, nobody ever "paused to ask whether what we were doing would actually reduce crime-it was just assumed that it would." ^[22] Indeed, the legislature increased the scope and severity of felony liability more than eighty times between 2000 and 2013, while reducing it just once. ^[23]

Two additional practices likely also spurred growth in Alaska's prison population without even intending to be "tough on crime." First, although the state's bail statute ^[24] created a presumption of personal-recognizance release, ^[25] courts overused third-party custodian release ^[26] in practice, ^[27] making it harder for defendants to await trial outside of prison. This arguably needless pre-trial incarceration can lead to higher conviction rates, longer sentences, litigation disadvantages for defendants, and greater expense for the corrections system. ^[28] Defendants with greater pre-trial exposure to prison may also be more likely to recidivate and engage in new criminal activity. ^[29]

Second, the state's response to the U.S. Supreme Court's decision in Blakely v. Washington, which held that factual bases for departures from a statutory sentence must be found by the jury beyond a reasonable doubt in order to be constitutional, ^[30] has led to longer prison sentences. Before 2005, Alaska, like many states, employed a system of...