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This article summarizes the findings of the Alaska Judicial Council's most recent evaluation of Alaska's ban on plea bargaining. The study found several major differences between Alaska's pre-ban practices and current practices that could be directly attributed to the ban. First, the standard for screening of cases was tightened immediately after the ban was announced, resulting in an increase in the number of cases not accepted for prosecution. According to most persons interviewed, the present screening policy is a positive influence on the quality of cases and a useful tool for prosecutors. The Alaska Judicial Council recommends that the present high standard for screening be maintained. If extra time is needed for screening cases in some situations (especially in rural areas), that need could be finally recognized in the wri tten policy guidelines. A second major effect of Alaska's 1975 ban on plea bargaining involved a dramatic shift in responsibility for the sentencing of convicted defendants. Before the ban, the prosecutor and the defense attorney commonly agreed upon a specific sentence in exchange for the defendant's plea of guilty or nolo contendere. The judge would then be asked to approve the deal. The Judicial Council found that routine sentence· recommendations for a specific sentence were virtually eliminated soon after the ban and have not returned. As a result, most defendants today are sentenced by a judge at an open hearing with participation by the prosecutor, defense, and presentence reporter. Thus, responsibility for determining the sentence rests primarily with the judge, who makes an independent decision, but also benefits from the participants' input. A third major finding of the Judicial Council's study was that charge bargaining (charge reductions and dismissals) was substantially curtailed for several years after the original plea bargaining ban; but it has become steadily more prevalent since the mid 1980s. Attorneys and judges attribute the change to a combination of circumstances, including changes in personnel in the Attorney General's office and local District Attorney offices, the changes in the criminal code structure, and the reduced resources available for the prosecution of cases after the middle of 1986. It appears that the legal community's perception of the current prosecutorial practices related to charge bargaining is substantially at odds with the Attorney General's written policy that prohibits charge bargaining. The Attorney General's current policy prohibits a prosecutor from agreeing to reduce or dismiss charges in exchange for the defendant's plea of guilty (an exception applies in some types of multiple count cases, where the prosecutor may dismiss some counts if the defendant pleads to the "'essence' of the conduct engaged in"). The Judicial Council takes no position with respect to the practice of charge bargaining, but recommends that the written policy and the actual practice be consistent to avoid confusion in the legal community and the public. Thus, the Attorney General may wish either to reiterate the present policy as written and encourage its application in practice, or he may prefer to incorporate the existing practices into his policy. Fourth, the Judicial Council found that sentences increased substantially in length in the years after the ban, and that the likelihood of a jail sentence increased for most offenders. These increases probably resulted more from increased societal concern with crime and willingness to allocate significant resources to law enforcement, courts and corrections than from the ban on plea bargaining or presumptive sentencing alone. However, because it is apparent that presumptive sentencing is one of several factors that has led to overall longer sentences and a much larger prison population, the Judicial Council recommends that some aspects of the presumptive sentencing scheme be reconsidered. Specifically, the Council recommends that the Legislature, through the Alaska Sentencing Commission, thoroughly evaluate existing and proposed sentencing provisions to compare the relative seriousness of offenses, and carefully consider the full range of costs associated with new sentencing proposals. By ranking the seriousness of each offense in relation to other offenses and possibly tying each sentence to a more narrowly-defined offense, legislators and practitioners will benefit from increased specificity in sentencing. By understanding the full range of costs associated with new sentences, Alaskan legislators may be able to avoid the virtually unsolvable prison overcrowding problems found in so many other states. A fifth finding, related to sentencing, was that appellate review of sentencing by the Alaska Court of Appeals and Alaska Supreme Court has resulted in comprehensive case law guidelines for most offenses and benchmark sentences for several types and groups of offenses. The appellate courts' decisions reflect the legislative mandate for greater fairness and uniformity in sentencing, especially those decisions that use the principles of the presumptive sentencing structure to interpret non-presumptive sentencing statutes. The Judicial Council recommends that the Legislature, through the Alaska Sentencing Commission, examine the various benchmarks set by the appellate courts to determine first whether there is sentencing law in those decisions that would be more effectively addressed by statutes, and second, whether the benchmarks and sentencing criteria could be summarized in a form that would make them easily accessible to judges, attorneys and the public.

Publication Date

1-17-1991

Keywords

Law, Crime, Plea Bargaining

Handle

http://hdl.handle.net/11122/14400

Alaska's Plea Bargaining Ban Re-evaluated

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