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Alaska Justice Forum 3(1), January 1979

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Alaska Justice Forum 3(1), January 1979 Alaska Justice Forum ; Vol. 3, No. 1 (January 1979) Item Type Journal Authors UAA Criminal Justice Center; Trivette, Samuel H.; Lederman, Sema Citation Alaska Justice Forum 3(1), January 1979 Publisher Criminal Justice Center, University of Alaska Anchorage Download date 29/09/2021 14:40:01 Link to Item http://hdl.handle.net/11122/10825 IN THIS ISSUE· Ala1sl(;1 • Carlson's Ruling • Parole Guidelines .J11sti�e • Check Program 1� tt 1· 11111 Vol. 3, No. 1 January 1979 Carlson's Ruling on Guns AS 12.15.080 MEANS TO EFFECT RESISTED ARREST. If the person being arrested either flees or forcibly resists after notice of intention to make the arrest, the peace officer may use all the necessary and proper means to effect the arrest. On Nov. 24, Anchorage Superior interpreted by Judge Carlson, the su­ Constitution, Judge Carlson found it logi­ Court Judge Victor D. Carlson declared preme court said state statutes require a cal to extent it to a determination of the AS 12.15.080 unconstitutional to the ex­ finding of necessity before a homicide reasonableness of a seizure (or arrest) as tent that it permits a peace officer to use can be considered justified. A mere show­ well. deadly force to apprehend a suspect who ing that a suspect has committed a felony Thus, confronted with the necessity to is not a threat to the life of the officer, a is not sufficient to support a finding of determine if the seizure, or arrest in this bystander, a victim or any other person. necessity where deadly force was used case, was unreasonable due to the use of This ruling was in response to a unless a dangerous situation exists. excessive force, Judge Carlson noted that motion by Russel Sundberg to suppress When a dangerous situation can't be while no court had ever specifically found the fruits of his arrest for burglary in a shown, the shooting of the defendant force necessary to make an arrest to be dwelling on the grounds that excessive would be a violation of AS 12.25.080,. unreasonable under the Fourth Amend­ force was used in his arrest, thereby Judge Carlson ruled. Since, in the instant ment of the U.S. Constitution, courts making the arrest unlawful. He had been case there was no showing of necessity­ have found forcible searches to be shot and wounded last May while seen the police officer did not demonstrate a unreasonable. running from the scene of a reported reasonable belief that the defendant was a Applying this reasoning, Judge Carlson burglary carrying a pillow case as a sack. threat to either the police officer or found that the fact that the defendant Prior to the shooting, the officer had others-his actions were unconstitutional. may have escaped if he had not been shouted the command "Hold it," but the However, if this analysis of the Gray shot, does not make the use of deadly defendant continued his flight. holding is not correct and AS 12.25.080 force reasonable under Fourth Amend­ The ruling is being appealed to the does permit the use of deadly force in the ment standards, nor under Art. 1, Sec. Alaska Supreme Court by the Depart­ absence of any threat to others, then · 14, of the Alaska Constitution. Judge ment of Law. Judge Carlson found the statute to be in Carlson found further support for this Because of the interest and the signifi­ violation of Art. 1, Secs. 7 and 14 of the approach in the Alaska Supreme Court cance of the issues involved, the following Alaska Constitution: Creating violations decision in State v. Glass, Opinion No. summary of Carlson's Memorandum of of due process of law and of a person's 1724, in which the court held that effec­ Decision is presented. It is presented constitutional protection against unrea­ tive law enforcement is· not a sufficient without comment and does not reflect sonable search and seizure. justification for the violation of a defend­ any expression of opinion on the issues Citing the Alaska Supreme Court ant's constitutional rights. involved. It is presented only for the decision in Zehrung v. State, 569 P.2d purposes of information. 189, 199 (Alaska 1977). Judge Carlson found the court stated that it is a basic While the Alaska Supreme Court has premise of the law of search and seizure A Test for Reasonableness never addressed directly the issue of a that governmental intrusions must have a peace officer's use of deadly force in_ justifiable purpose in order to be recog­ Judge Carlson then proceeded to de­ making an arrest, Judge Carlson said the nized as reasonable. velop a three-step test to determine the court has indicated that an officer's use While this premise was considered in requirements of reasonableness relating to of force is not unlimited. In Gray v. the context of the reasonableness of a State, 463 P .2d 897 (Alaska 1970), as search under Art. 1. Sec. 14 of the Alaska (Continued on Page 5) Page 2 Alaska Justice Forum January 1979 What Parole Guidelines Can Do This coalition of college professors, To quote some of his relevant testi­ mony: "Sometimes it is supposed that By Sam Trivette ex-offenders, consultants and criminal justice professionals all agreed that the the alternative to a lot of sentencing Executive Director basic philosophy behind determinate or discretion is to have the legislature set the Alaska Parole Board presumptive sentencing is valid, but that sentencing standards. Suggestions to limit The Criminal Code Revision Commis­ the goals · supporting that philosophy the judge's discretion provoke agruments sion spent two years reviewing various would be better met by the parole guide­ about the ills of legislative sentencing, for sentencing schemes in developing its lines model. instance, t_he tendency of some legisla­ Crimina·I Code Proposal, and finally tures to adopt harsh penalties to show adopted a concept incorporating both a Community Release Supported toughness on crime. "I do not believe that the legislature is presumptive sentence component as well The American Bar Association has well suited to write the sentencing stan­ as parole guidelines component. been a very avid opponent of traditional dards. Aside from the dangers of escalat­ parole. However, in a position paper last ing the penalties for political reasons No Light Decision fall, they recommended a "community legislatures simply do not have the neces­ The commission's decision to incorpo­ release board," separate from the court, sary time. rate the parole guidelines model did not established to determine the length of Adequate standards are complicated come lightly and was adopted only after prison terms. A review of their paper and will require experimentation and re­ being made aware of some of the follow­ indicates the separate "community re­ vision over time. The standard-setting ing information. lease board" with tightly structured dis­ agency would be capable of reviewing and Many of the very strong and vocal cretion is the same as envisioned by the adjusting these standards continually, in opponents of traditional parole through­ Alaska Criminal Code Commission in its the light of accumulating judicial experi­ out the United States have backed off of sentencing proposal with parole guide­ ence with the use of such norms. their strong support of determinate and line·s. presumptive sentencing schemes, and are "A Congress that each year must now supporting a parole guideline model Sentencing Commission decide an international budget and de­ velop major- programs in the fields of similar to the system functioning in the The Law Enforcement Assistance Ad­ energy and job creation and a host of State of Oregon. ministration recently had a report pre­ other areas simply does not have the time For example, the Council of State pared on parole by Andrew von Hirsch, and resources for the task of reviewing Governments had adopted a paper and Professor of Criminal Justice at Rutgers and fine tuning sentencing standards po Ii cy statement recommending the University. Professsor von Hirsch, the abolishment of parole. But, at a recent author of a book released in late 1976 adopted in the previous sessions. "It is preferable, I think, to create a conference in Colorado, the author of entitled Doing Justice, strongly supported special rule-making agency, namely a sen­ that paper indicated he now feels the a flat time sentencing scheme with discre­ tencing commission, to set up the stan­ parole guidelines system as operating in tion being left to the court and the dards of the subcommittee bill, Senate several jurisdictions was more viable than legislature. the Kennedy Bill Senate other "flat time" sentencing schemes Since this book was published in 1976, 437, as well as without discretionary release. Professor von Hirsch received the grant 181, and our Javitts Bill proposal; a spe­ At the same conference, a number of from LEAA and spent a considerable cialized rule-making agency having setting professional people were in attendance amount of time in states which have been of standards as its primary function can from the State of California which has working on changing sentencing laws. develop expertise in this task, it could recently adopted a "model determinate After. becoming intimately familiar regularly modify and revise its norm on sentencing" bill. The determinate sen­ with the various concepts involved with the basis of experience." tencing bill abolishes discretionary release the discretion issue; and spending time in Statewide Conference from incarceration and much more tight­ such states as California and Oregon ly structures the discretion of the sen­ which have adopted different sentencing The Statewide Conference on Incar­ tencing judge.
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