A Parnell administration bid to add an anti-immigrant provision to an otherwise uncontroversial sentencing bill comes up for review in a House committee Friday, nine days after the committee added the provision upon hearing only a prosecutor's argument.
The new provision would prevent judges from considering whether a sentence that results in deportation would be an injustice to a noncitizen defendant.
The issue arose from two appeals lost by the state in September in which two long-term, legal U.S. residents -- one a military veteran, the other a person who came to this country at age 10 -- sought sentences of less than a year to avoid deportation by federal officials.
Each case involved a violent episode, but in each case the trial judge and a special three-judge panel concluded that deportation would be a "harsh collateral consequence" of the presumptive sentence under state law -- a prison term of one to three years.
For both men, it was their first felony conviction. One, Jamaica-born Michael Silvera, got a 364-day sentence over a drunken knife attack in a Nome taxicab in 2007. The other, Jose Manuel Perez, from the Dominican Republic, has not yet been sentenced for beating an informant in jail.
The provision to remove the possibility of a lesser sentence was added in the House Judiciary Committee Feb. 12 over the objections of the committee's only two attorneys, Reps. Max Gruenberg, a Democrat, and Gabrielle LeDoux, a Republican. They had urged the committee to wait until it could hear from someone other than the state's chief prosecutor, Richard Svobodny.
"If you adopt the amendment today, that's premature, because you haven't heard both sides of the story and you're indicating your views after only listening to one side, and I think that's wrong morally," Gruenberg said, according to the audio recording of the meeting.
LeDoux said that her district, covering parts of East Anchorage and Joint Base Elmendorf-Richardson, was one of the most diverse in the country.
Gruenberg was voted down and the amendment adopted, 4-2. Voting for the amendment were Rep. Lance Pruitt, R-Anchorage, the committee's acting chairman; Reps. Bob Lynn and Charisse Millett, both Anchorage Republicans; and Rep. Neal Foster, D-Nome.
Pruitt said if additional testimony Friday reveals the committee made a mistake, it can rescind the amendment.
The original bill, House Bill 118, was the result of a search in Alaska statutes over the summer ordered by House Speaker Mike Chenault and his aide Tom Wright for laws in which an assault on a corrections officer was treated like an assault against an ordinary victim. The 113-prisoner Wildwood Pre-Trial Facility is in Chenault's Nikiski district and many of its guards are his constituents.
According to an Aug. 14 memo to Chenault and Wright by Legislative Counsel Kathleen Strasbaugh, state law already treated correctional officers like police, firefighters and other officials in the case of first-degree murder and some assaults by providing for harsher presumptive sentences than for nonuniformed victims. Strasbaugh, though, found an obscure section of law where that wasn't the case: when a person commits a series of misdemeanors, including a minor assault of a corrections officer.
As a result, House Bill 218 added the words "or correctional officers" to the harsher sentencing section of a six-page law governing punishment for multiple misdemeanors.
Chenault introduced the bill in January and it got a quick referral to just one House committee: Judiciary.
Meanwhile, Svobodny, the deputy attorney general in charge of the criminal division, was looking for a way to reverse the September decision by the three-judge Alaska Court of Appeals in the cases of Silvera and Perez. The Alaska Supreme Court turned down an appeal by the state, leaving the Legislature as his only option. Svobodny said the governor's office gave its approval to lobby the Legislature and Chenault's existing bill was on a similar topic.
Alaska's presumptive sentencing law was designed to encourage uniformity in courts throughout the state. It provides for fixed sentencing ranges for many crimes, but also gives judges discretion to add punishment if the crime has one of dozens of "aggravating factors" or reduce time in the case of dozens more "mitigating factors." A police officer victim might be an aggravator, while coercion of the defendant by an older perpetrator might be a mitigator.
In addition to the list of specific mitigators, the law provides an escape valve for judges who, after sitting through a trial, believe the standard sentence too harsh -- or "manifestly unjust." But to invoke the manifestly unjust condition, the judge has to send the case to a special panel of three sitting judges selected by the Chief Justice of the Alaska Supreme Court.
Silvera got that treatment.
According to appellate court records, Silvera was a disabled U.S. veteran living in Nome in 2007 when he, his girlfriend and several others hailed a cab for a ride home after the bars closed. All were drunk.
On the way, an argument broke out and one of the men called Silvera's girlfriend a "whore." Silvera cut the man's temple with a knife and threatened to kill him, but was restrained by another passenger.
The victim's wound required nine stitches to close.
Silvera had been a lawful resident of the United States since 1978, but with a sentence of more than a year was subject to immediate deportation after he served his time. Silvera argued that deportation would be especially bad for him because his medical treatment was covered by the Veterans Administration. In Jamaica, he would get no care, he said.
The trial judge referred the case to the three-judge panel, which concluded that deportation would be a "manifestly unjust" additional penalty.
Perez moved to the United States when he was 10 and at the time of his 2011 trial had been living here lawfully for 26 years. But he was arrested for possession of heroin, and while in jail encountered the informant who had testified against him. Perez assaulted the man, resulting in a new charge of interference with official proceedings. After his conviction, he faced up to three years in prison.
The judge referred the case to the three-judge panel, which decided that deportation "would be a harsh collateral consequence." It didn't immediately sentence him because the state wanted to appeal.
Counting the trial judges, the three-judge panel and the three judges of the Court of Appeals, seven state judges said it was proper to consider the threat of deportation as a mitigation factor.
But Svobodny argued that a deportation mitigator had the effect of treating a citizen harsher than a foreign national, because the citizen would have to serve the full presumptive sentence. The amendment he brought to the committee won't affect Silvera and Perez, but would prevent other immigrants from using the threat of deportation as a mitigator.
The House Judiciary Committee is scheduled to hear telephone testimony from Anchorage immigration lawyer Margaret Stock on Friday. In an interview, she said Svobodny's memo to the committee was filled with inaccuracies in its descriptions of federal immigration law.
She described deportation as a "harsh penalty" that can result in the break-up of families. Stock said she thought it curious that the Parnell administration was quick to defend Alaskans against federal environmental or gun regulations, but wouldn't protect its residents from federal deportation proceedings.
Chenault said he was keeping an open mind, but thought "at first blush" that Svobodny's logic was proper.
"If you're in our country, you should abide by the rules," he said.
Reach Richard Mauer at firstname.lastname@example.org or 257-4345.
By RICHARD MAUER