Justin Schneider, a former Anchorage-based air-traffic controller, viciously assaulted a woman in August 2017. He was sentenced for this offense in September. The hearing was covered by local and national outlets, including the Washington Post and CNN. Social media picked up on the case, and soon Facebook groups formed calling for Third Judicial District residents to vote against retaining the sentencing judge, Michael Corey, in this November's retention election.
Many likened Judge Corey to Santa Clara County Superior Court Judge Aaron Persky, who became the first California jurist recalled from the bench in approximately eight decades, shortly after Judge Persky sentenced a former Stanford swimmer, Brock Turner, to six months in jail after Turner was convicted at trial of sexually assaulting an incapacitated woman. (Turner faced 14 years of imprisonment; the state argued for a six-year sentence.)
[The story behind the no-jail, 'one free pass' plea deal that drew outrage in Alaska]
Reasonable people can, and should, disagree regarding Schneider's sentence. No reasonable person, however, would argue that his conduct was a good thing. As a father, I am disgusted that my daughters are growing up in a state where violent attacks like Schneider's have become almost routine. As a criminal defense lawyer, I have represented clients convicted of non-violent drug related offenses who have been sentenced to terms of incarceration much more severe than Mr. Schneider's. There is a very real need for legislative-based sentencing reform to address sentencing disparity and other outdated components of our sentencing system. I echo Gov. Bill Walker's remarks regarding legislative-based sentencing reform. I am submitting this piece, however, to urge that we collectively pause and rethink whether it is wise to ascribe blame to Judge Corey for the outcome of this case and to temper the reactionary social media voices calling for him to lose his job.
It is important to understand Alaska's sentencing scheme. Schneider's case involved a plea bargain governed by the terms of Alaska Criminal Rule 11, often referred to as a "Rule 11 agreement." Rule 11 agreements typically involve a bargain like any other contract: The state promises to dismiss certain charges, and the defendant agrees to accept a defined punishment. When a Rule 11 agreement is filed, the court has only two options: It can accept the agreement, and impose a sentence in accordance with the terms of the agreement or, alternatively, the court can reject the agreement as "too lenient" or "too harsh." (The court also must be satisfied that there is a reasonable basis for the plea.) If it rejects the agreement as "too lenient" it is not authorized, on its own, to impose a "harsher" sentence. Instead, the court "shall then afford the defendant the opportunity to withdraw the plea." This leaves the parties with the opportunity to renegotiate a different outcome. It is highly unusual for a court to reject an agreement if the court is satisfied by a range of important sentencing considerations discussed herein.
The Alaska Legislature has attempted to eliminate sentencing disparity by requiring the court to consider seven factors (frequently knows as the "Chaney" criteria) in imposing a defendant's individual sentence. The factors include an analysis of a defendant's prior criminal history, the seriousness of the conduct, the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms, and the restoration of the victim and the community. The inquiry is fact-based, intensive and unique to each case. Frequently, although not exclusively, judges rely on the learned insight of counsel, who have presumably made a bargain after having assessed the risks and rewards of their various positions, to persuade the court that the "Chaney criteria" have been met within the four corners of the bargain.
Schneider's case thus did not exist in a vacuum, but rather within this complex and imperfect web of policy and legal considerations. By the time Schneider's case approached sentencing, the state had decided it was unable to prove beyond a reasonable doubt the charges that would have placed Mr. Schneider at risk of a much more severe sentence than he ultimately received.
Schneider thus faced a sentencing range of 0-2 years for the remaining charge; the agreed-upon sentence was in the middle of that range. (Should Schneider violate the extensive conditions of probation, which include sex related conditions, the court may impose an additional year to serve, which would take him to the max of 2 years.) Judge Corey's role thus stood in contrast to Judge Persky's – Judge Persky was not faced with enforcing a contract. Turner's sentence was "open" and that court was free to impose a range between 0 to 14 years.
That Schneider received credit for time he accrued on "ankle monitor" was also based on legislative directive, and not on the legal whim of the court. Just as Judge Corey was not free to violate Alaska law by imposing an illegal sentence for Schneider to serve, nor could he disregard Alaska law and reject the parties' electronic monitoring stipulation.
I have waged many contentious battles in Judge Corey's courtroom over the course of my career and his tenure on the bench. Although we have had our disagreements, I have never questioned Judge Corey's integrity, knowledge of the law, or respect for the people litigating disputes in his courtroom, greatest among them the victims of violent crime. Alaskans should feel very good about the quality of our judiciary. The Alaska Judicial Council, a constitutionally created independent citizens' commission, unanimously recommended that the public vote yes to retain Judge Corey as a Superior Court judge. I respectfully urge all voters to consider the broad scope of Judge Corey's record, and his by-the-book conduct in Schneider's case, in deciding how to cast his or her vote in November. Let's let cooler heads prevail.
Jeffrey W. Robinson is a criminal defense attorney practicing in Anchorage.
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