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State v. Morgan (04/29/2005) ap-1982
State v. Morgan (04/29/2005) ap-1982
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals Nos. A-
8691/8725/8726
Petitioner, )
)
v. ) Trial Court
Nos. 3AN-02-9408 CR,
) 3AN- 02-9075 CR and 3AN-
02-8868 CR
GLEN D. MORGAN JR., )
ATHENA KOMAKHUK, and ) O
P I N I O N
KIRK J. PETERSON, )
)
Respondents. )
[No. 1982 - April 29, 2005]
)
Petitions from the District Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy
and Jack W. Smith, Judges.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Petitioner. Margi A. Mock, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Respondents.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge
MANNHEIMER, Judge, dissenting
The respondents, Glen D. Morgan Jr., Athena Komakhuk,
and Kirk J. Peterson, were each charged under AS 04.16.050 with
one count of possessing, controlling, or consuming alcoholic
beverages by a person under the age of 21. Among other things,
any person convicted for violating AS 04.16.050 must be placed on
probation for one year, or until that person reaches the age of
21 years, whichever is longer. However, a court can impose
imprisonment only for a third or subsequent offense.1 Each
respondent moved in the district court for dismissal, arguing
that this probation provision violates Alaskas equal protection
law because the provision requires younger offenders to stay on
probation longer than older offenders. District Court Judges
Sigurd E. Murphy and Jack W. Smith agreed with the respondents,
and dismissed the cases. The State petitioned for review of
Judge Murphys and Judge Smiths decisions. We granted the
petitions, and then granted the States motion to consolidate
these cases. Because we conclude that the challenged probation
provision does not violate equal protection, we reverse the
decisions of the district court.
Discussion
The Alaska Constitution requires that similarly
situated individuals be treated equally.2 When analyzing a claim
that a statute violates Alaskas equal protection clause, Alaskas
appellate courts must balance the significance of the individual
right purportedly `infringed, the importance of the regulatory
interest asserted by the state, and the closeness of the fit
between the challenged statute and the states asserted regulatory
interest.3
A properly enacted law is presumed to be
constitutional, and [c]ourts should construe enactments to avoid
a finding of unconstitutionality to the extent possible. This is
particularly so in a case [involving] a facial challenge as
opposed to a challenge to the [enactment] as applied.4
In 2001, the Alaska legislature passed the current
version of AS 4.16.050.5 With some exceptions not pertinent in
these cases, AS 04.16.050 makes it illegal for a person under the
age of 21 years to knowingly consume, possess, or control
alcoholic beverages.6 Among other things, any person convicted
of violating this statute must be placed on probation for one
year, or until the person is 21 years of age, whichever is
later.7 The person may not refuse probation.8
As already set out, the respondents challenge on equal
protection grounds the requirement that any person convicted of
violating AS 04.16.050 must be placed on probation for one year
or until the person is 21 years of age, whichever is later.
In analyzing this challenge, we find that the
respondents interest involves an integral part of their
punishment, that is, the length of their probation. Their
interest in the length of their probation is therelatively narrow
interest that a convicted offender has in minimizing the
punishment for an offense.9 As explained by the United States
Supreme Court, [e]very person has a fundamental right to liberty
in the sense that the Government may not punish him unless and
until it proves his guilt beyond a reasonable doubt at a criminal
trial conducted in accordance with the relevant constitutional
guarantees.10 But once a person is lawfully convicted, that
person is subject to whatever punishment is authorized by statute
for his offense, so long as that penalty is not cruel and
unusual, and so long as the penalty is not based on an arbitrary
distinction that would violate the Due Process Clause of the
Fifth Amendment.11
Meanwhile, with regard to the second factor, we find
that the State has a compelling interest in preserving the health
and welfare of minors.12
Finally, with regard to the third factor, when the
States interest in enacting the challenged statute is
sufficiently strong, and the individuals interest is low, then
the challenged statute must bear a substantial relationship to
the states asserted regulatory interest.13 In this case, because
the States interest in preventing underage drinking is
sufficiently strong, and the importance of the respondents
interest relatively low, we must determine whether the
challenged probation provision of AS 04.16.050 has a substantial
relationship to the social policy of preventing underage
drinking.
There is a substantial relationship
The legislative history of this statute shows that the
drafters wanted to deter underage drinking, and to identify and
treat minors with alcohol abuse problems. In 2001, State
Representative Norman Rokeberg introduced House Bill 179 to amend
AS 04.16.050. Among other things, one of the proposed amendments
required that all offenders be placed on probation for one year
or until the offender turned 21 years old, whichever was later.14
When asked by the House Judiciary Committee to explain House Bill
179s objective, Representative Rokeberg responded that [w]ere
trying to dissuade juveniles from consuming alcohol. A
representative from the Department of Law emphasized to the
committee that
a way to instill the idea that offenders may
not drink until they become 21 is to place
offenders on open-court, unsupervised,
informal probation until they are 21. Then,
when the offender reaches the age of 21, he
[or] she is off probation.
Representative Rokeberg later advised the House Finance Committee
that
[s]tatistics show that the earlier a person
begins drinking, the more likely they are to
have problems with alcohol later in life. By
sending a message early to minors that their
actions will not go unpunished, we hope to
deter alcohol problems in the future.
Finally, when the bill went before the Senate Judiciary
Committee, a representative from the Department of Health and
Human Services said that with regard to treating minors who
unlawfully consume alcohol, monitoring is key. ... [The] goal is
to get the monitoring and provide treatment to intervene early.
In other words, the statutes probation period would assure that
courts were part of the monitoring process.
To support its claim that there is a substantial
relationship between the statute and the goal of preventing
underage drinking, the State argues that minors who drink at
younger ages logically require more monitoring than older
offenders for two reasons. First, there is a longer period when
younger offenders can re-offend. Once minors have been found
guilty of offending, the probation period keeps these offenders
under court supervision until they are old enough to legally
consume or possess alcohol. Second, people who begin drinking at
younger ages have a greater risk of having problems with alcohol
later in life. This second reason was specifically discussed
during the April 2001 House Finance Committee hearing. As
already mentioned, Representative Rokeberg pointed out that
statistics show that the earlier a person begins drinking, the
more likely they are to have problems with alcohol later in life.
By sending a message early to minors that their actions will not
go unpunished, we hope to deter alcohol problems in the future.
This record demonstrates that, because of the potential
danger and social cost associated with underage drinking, the
legislature enacted the mandatory probation provision to, among
other things, deter minors from consuming alcohol. The record
also demonstrates that for those minors who could not be
deterred, the legislature wanted to keep minors convicted of
violating this statute under State and court supervision until
they were able to legally consume or possess alcohol.
The legislature could reasonably determine that in
cases involving unlawful consumption or possession of alcohol,
younger offenders are more vulnerable and have a higher risk than
older offenders of incurring physical or mental health problems,
of becoming crime victims, or of committing crimes. Nor, for
example, was it unreasonable for the legislature to determine
that thirteen-year-olds with an alcohol problem may need more
intervention and monitoring than eighteen-year-olds with a
similar alcohol problem. In light of the States interest in
preventing the health and social problems that are associated
with underage drinking and because the younger offenders are more
at risk than are older offenders, then the legislature could
properly decide that the State and the courts should monitor
younger offenders longer than older offenders. We also note that
based on its stated goal, the legislature could determine that
there was no point in monitoring a person much beyond the age
when that person can legally drink alcoholic beverages. That is,
although the legislature could have required that all offenders
be placed on probation for a set period of time for instance, 5
years the legislature could reasonably decide that keeping an
eighteen-year-old on probation for 5 years (until the age of 23)
did little to advance the goal of preventing underage drinking.
We find that the challenged provision of the statute
has a substantial relationship to the legislatures goal of
preventing unlawful underage drinking. Considering that the
legislature may (and does) restrict minors freedom in ways that
would be unconstitutional if applied to adults,15 we conclude
that the statute on its face does not, by placing all minors
convicted of illegally consuming or possessing alcohol on
probation for one year or until they turn 21, whichever is
longer, violate equal protection.
Conclusion
The decisions of the district court are REVERSED, and
these cases are REMANDED for further proceedings.
MANNHEIMER, Judge, dissenting.
Alaska Statute 04.16.050, the statute that prohibits
the possession and consumption of alcoholic beverages by minors,
carries a sliding punishment that hinges solely on the offenders
age. Regardless of the particular facts of the offense, and
regardless of the particular offenders background or individual
prospects for rehabilitation, the statute requires a sentencing
court to place every convicted offender on probation until the
offenders twenty-first birthday (or for one year, whichever will
result in a longer term of probation). See AS 04.16.050(e).
As we explained in State v. Auyile, 57 P.3d 711 (Alaska
App. 2002), the probation imposed under this statute differs from
normal probation in two crucial ways. First, the sentencing
judge has no discretion in the matter; the specified probation
must be imposed. Second, the convicted offender has no right to
refuse probation and demand a normal sentence.1
Thus, a 13-year-old convicted of possessing or
consuming alcoholic beverages must receive a term of probation of
between 7 and 8 years. In contrast, a 15-year-old offender must
receive a term of probation of between 5 and 6 years. And an 18-
year-old offender must receive a term of probation of between 2
and 3 years. In other words, the punishment for this crime is
progressively more severe according to the youthfulness of the
offender.
The question presented in this appeal is whether the
Alaska Constitution allows the legislature to enact such a system
of criminal punishment a punishment that becomes increasingly
severe based solely on the increasing youth of the offender.
I conclude that this punishment scheme violates the due process
and equal protection clauses of our state constitution.
The constitutional consequences of the legislatures
decision to prosecute and punish these minors as
adults, rather than dealing with under-age drinking
through the juvenile justice system
Until 1995, older minors (ages 18 through 20)
who possessed or consumed alcoholic beverages in
violation of AS 04.16.050 were prosecuted and punished
under the adult criminal justice system. These minors
faced prosecution for a misdemeanor that carried a
penalty of up to 1 years imprisonment, and they faced
probation (i.e., normal probation, coupled to a
suspended term of imprisonment) of up to 10 years.2
In contrast, offenders younger than 18 were
referred to the juvenile justice system.3 Under
Alaskas juvenile delinquency laws, these minors faced
potential institutionalization, or involuntary
placement in a foster home, or probation supervised by
the Department of Health and Social Services.4
However, the superior courts jurisdiction over these
minors ended upon their 19th birthday.5
Then, beginning in 1995, the legislature took
several steps aimed at abolishing jury trials for
minors accused of possessing or consuming alcoholic
beverages. As we explained in State v. Auyile, the
legislature pursued this goal by amending both AS
04.16.050 and the juvenile delinquency laws.6
The legislature amended AS 04.16.050 by
abolishing imprisonment as a punishment for this crime
except for third or subsequent offenses.7 In place of
imprisonment, the legislature enacted the current
system of mandatory probation until an offenders 21st
birthday a probation that can include involuntary in-
patient treatment for alcohol abuse, as well as
involuntary community work service.8
And, because minors are entitled to a jury
trial if they are prosecuted under the juvenile justice
system for conduct that would be a crime if committed
by an adult,9 the legislature amended the juvenile
delinquency jurisdictional statute to exempt
prosecutions of minors for possessing or consuming
alcoholic beverages (again, except for third or
subsequent offenses).10 In other words, under current
law, these minors are now prosecuted and punished as
adults. They are not referred to the juvenile justice
system, no matter how young they are.11
This legislative decision the decision to
require adult prosecution of all minors who possess or
consume alcoholic beverages means that a different set
of rules now governs the punishment that can be imposed
on these minors.
The juvenile justice system is premised on a
parens patriae theory12 the concept that the State
takes a benevolent attitude ... toward more youthful
offenders13 because, generally, a person under eighteen
years of age does not have mature judgment and may not
fully realize the consequences of [their] acts.14 The
actions taken against a minor under the juvenile
justice system are geared toward individual treatment
and reformation, not toward general deterrence or
community condemnation.15
Thus, the different types of disposition that
can be imposed on juvenile offenders probation,
removal into foster care, and even institutionalization
are not viewed as punishments, but rather as
rehabilitative measures. For this reason, it does not
violate the equal protection clause to place a juvenile
offender in the care of the State for several years
even though an adult who engaged in the same criminal
conduct might face a relatively slight penalty.16
Before 1995, these rehabilitative principles
governed the measures that might be applied, under the
juvenile justice system, to minors who possessed or
consumed alcoholic beverages. But now the legislature
has decreed that these minors are to be prosecuted and
punished as adults.
This means that when the State imposes
penalties on minors for possessing or consuming
alcoholic beverages, the State can no longer justify
its actions by relying on the benevolent,
rehabilitative model of the juvenile justice system.
These minors are being treated as adults, and the
penalties imposed on them are punishments for a crime.
In consequence, these minors are entitled to
claim the benefit and protection of the legal
principles that govern the imposition of criminal
sanctions. The State can no longer rely on the
doctrine of parens patriae, or on any purported
benevolent intent, to avoid questions arising under the
due process clause or the equal protection clause.
The penalty scheme enacted in AS 04.16.050 is
unconstitutional because it irrationally punishes
younger offenders more severely, based solely on their
youth
The State has an important interest in
curbing under-age drinking; indeed, the minors pursuing
the present appeal concede that this is so.17
Moreover, it is for the legislature to decide
which offenders and which offenses should be prosecuted
within the normal criminal justice system as opposed to
the juvenile justice system.18 And finally, subject to
constitutional limitations, the legislature has the
discretion to decide what the punishment for a
particular offense should be.19
In light of these principles, it is clear
that the legislature has the authority to decide that
minors who possess or consume alcohol should be
prosecuted and punished as adults. And, generally
speaking, a criminal defendant can not challenge the
legislatures assessment of the proper penalty range for
a particular offense. Thus, as the State correctly
notes in its brief, the minors have no right to demand
the lesser term of probation imposed by the juvenile
justice system (i.e., probation not to exceed a
delinquent minors 19th birthday) as opposed to the
greater term of probation mandated by AS 04.16.050
(i.e., mandatory probation until the offenders 21st
birthday).
But the minors do not raise these issues.
Rather, they attack the penalty provision of AS
04.16.050 because, under this provision, the penalty
for the offense automatically increases according to
the youthfulness of the offender.
When the legislature establishes the range of
punishment for a crime, it must do so rationally.
Using the language of substantive due process, the
penalty scheme must bear a reasonable relationship to a
legitimate governmental purpose.20 Or, using the
language of equal protection, the penalty scheme must
be reasonable, not arbitrary, so that differences in
punishment rest upon some ground of difference having a
fair and substantial relation to the object of the
legislation.21
It is true, as the State asserts, that
persons convicted of a crime have very little protected
interest in avoiding incarceration or other restraints
on their liberty. However, the legislature must act
rationally when it inflicts differing degrees of
punishment on people whose conduct violates the same
basic social interest. Before singling out one group
of offenders for more severe punishment, the
legislature must have a reasonable basis for
concluding, from these offenders underlying conduct or
their criminal history, that they (as a group) are
indeed more blameworthy or more dangerous than their
fellow offenders.22
According to Article I, Section 12 of our
state constitution, the objectives of punishment within
our criminal justice system are the rehabilitation of
the offender, the protection of the public, community
condemnation of antisocial behavior, and the
vindication of victims rights.23 For purposes of a due
process or equal protection analysis, the question is
whether the scheme of sliding penalties codified in
AS 04.16.050 bears a reasonable relationship to these
objectives.
At first blush, it would seem that the
challenged penalty scheme is completely at odds with
these goals. Under AS 04.16.050(e), the length of the
probation imposed on offenders has nothing to do with
the facts of their particular offense, nor with their
history of prior conduct (whether good or bad).
Instead, it hinges solely on the offenders age with
younger offenders receiving longer terms of probation.
Our society recognizes that, generally
speaking, the younger a person is, the more impulsive
they are, and the less understanding they have of the
nature and consequences of their conduct. In addition,
the normal assumption is that, the younger a person is,
the more amenable they are to rehabilitative measures.
It therefore seems counter-intuitive to assert that
offenders should be punished increasingly severely the
younger they are.
The State nevertheless asserts that this
scheme of sliding penalties is justified by statistical
research which shows that the incidence of lifetime
alcohol abuse and dependence is greatest for those who
begin drinking between the ages of 11 and 14
years,24 and that people who start drinking alcoholic
beverages before the age of 15 are 4 times more likely
to become alcohol dependent than [people] who do not
drink before [reaching the age of] 21 years.25 The
State reasons that if younger drinkers are more at
risk, then it makes sense to place them under state
supervision i.e., to place involuntary restrictions on
their conduct for longer periods of time.
But even if we assume that the States
statistical research is accurate, these statistics can
be analyzed in at least two different ways. The
statistical correlation between early drinking and
later alcoholism or alcohol dependency may indicate
that there is a cause-and-effect relationship between
early drinking and later adult alcoholism or alcohol
dependency. However, the statistical correlation may
simply indicate that the people who are most strongly
predisposed to alcoholism or alcohol dependency are
also the people least likely to obey the drinking laws
(whether as children or adults).
Moreover, even if the statistical correlation
does indeed suggest a cause-and-effect relationship
between early drinking and later alcoholism or alcohol
dependency, this relationship is still not sufficient
to justify the challenged penalty scheme.
It may be that, among the overall population
of our society, people who begin drinking at younger
ages are more likely to have problems with alcohol when
they become adults. But in the context of sentencing a
minor for possessing or consuming alcoholic beverages,
the question is not what behavior we might expect from
a child who begins drinking at an early age. Rather,
the question is what behavior we might expect from a
child who begins drinking at an early age and who then
receives the benefit of intervention and treatment.
The criminal law does not allow the
government to imprison or supervise people simply for
their own good, nor does the criminal law allow the
government to subject people to imprisonment or
involuntary supervision simply because there is good
reason to believe that they are dangerous. Under the
criminal justice system, we can impose a penalty on a
person only if that penalty is a lawful punishment for
a specified offense.
As I explained earlier, societys power to
impose penalties and involuntary supervision on a minor
is much broader under the juvenile justice system.
Under the juvenile system, the government can
potentially supervise a minor for whatever period
remains until the minor reaches the age where the
juvenile courts jurisdiction ceases. Courts have
upheld this authority because the supervision imposed
under the juvenile justice system is viewed as a
rehabilitative measure employed by the State in its
role as parens patriae. The supervision is not viewed
as punishment for wrongdoing.
(Moreover, although the superior court may
potentially supervise a delinquent minor until the
minors 19th birthday, this is not automatic. The
superior court can order institutionalization or
supervision of a delinquent minor for only two years at
a time, and this order must be reviewed yearly.26 At
the end of the two-year period, the court can extend
its order, but only if the State shows that continued
supervision is in the best interests of the minor and
the public.27)
This same distinction between criminal
punishment and non-criminal remedial or protective
measures was the basis for this Courts decision in
Herreid v. State, 69 P.3d 507 (Alaska App. 2003), where
we rejected the claim that convicted sex offenders were
entitled to individualized consideration of whether,
and for how long, they should be required to register
as sex offenders. We held that the government could
impose a uniform period of registration on all sex
offenders, regardless of the individual circumstances
of their conduct or their background, because
registration is not a criminal punishment for their
offense.28
But minors accused of possessing or consuming
alcoholic beverages are prosecuted as adults, not as
juveniles. And if they are convicted, they suffer a
criminal punishment, not a benevolent rehabilitative
measure.
The mandatory probation called for in AS
04.16.050 (i.e., mandatory probation until the
offenders 21st birthday) is imposed as a punishment for
a particular criminal offense the act of possessing or
consuming alcoholic beverages. The fact that the
defendants prosecuted and punished under this statute
happen to be minors does not alter the fact that they
are entitled to the same constitutional protections as
other criminal defendants. To echo the words of our
supreme court in R.L.R. v. State, regardless of
benevolent-sounding labels, involuntary probation,
[even] when applied to children, is a taking of liberty
under the Fourteenth Amendment.29
In Alaska, criminal punishment is based on
the just deserts theory.30 Under this theory of
punishment, decisions with respect to a particular
[offenders sentence are] to be made on the basis of
what the person has done, not on some speculative
expectation of what [they] might do in the future.31
Moreover, in AS 12.55.005, the Alaska Legislature has
declared that one of the major aims of Alaska
sentencing law is the elimination of unjustified
disparity in sentencing. (The Alaska Supreme Court has
declared that appellate review of sentences has this
same goal. See Nicholas v. State, 477 P.2d 447, 448-49
(Alaska 1970).)
The elimination of unjustified disparity in
sentencing is normally thought to require
individualized consideration and assessment of a
defendants background and the facts of their offense.32
But this does not happen when an offender is sentenced
for violating AS 04.16.050. Regardless of the facts of
the case, and regardless of the defendants background,
every defendant must receive probation and its
attendant consequences chief among which are potential
involuntary work service and potential involuntary
commitment to an in-patient treatment facility.
Moreover, the length of this probation is
mandatory. Again, regardless of the facts of the case,
and regardless of the defendants background, the
statute requires a probation whose length is inversely
related to the offenders age. The younger the
offender, the lengthier the probation. This appears to
be the embodiment of unjustified disparity in
sentencing because the normal assumption is that
younger offenders pose less danger to the community and
are more amenable to treatment.
Of course, when assessing the proper
punishment for a criminal offense, our law recognizes
that increased punishment can be justified if there is
an articulable reason to believe that the offender will
be more resistant to, or less able to benefit from,
rehabilitative measures. But this means that the
sliding scale of punishment codified in AS 04.16.050
can pass muster only if there is reason to believe
that, simply by virtue of their age, the youngest
offenders being sentenced for possessing or consuming
alcoholic beverages will be the most resistant to
intervention and treatment.
The legislature made no finding on this
point. The States statistics are silent on this point.
And this proposition seems irrational on its face.
Accordingly, I conclude that the penalty
scheme codified in AS 04.16.050 violates the due
process and equal protection clauses of the Alaska
Constitution, and I would affirm the rulings of the
district court in the three minors cases.
_______________________________
1 AS 04.16.050(d).
2 See Alaska Const. art. 1, 1.
3 Anderson v. State, 904 P.2d 433, 435 (Alaska App. 1995)
(citing State v. Enserch Alaska Constr., Inc., 787 P.2d 624, 631
(Alaska 1989); see also Maeckle v. State, 792 P.2d 686, 688
(Alaska App. 1990).
4 See Treacy v. Anchorage, 91 P.3d 252, 260 (Alaska 2004)
(supreme court rejected juveniles equal protection challenge to
municipalitys curfew).
5 See ch. 65, SLA 2001. We set out the history of this
statute in Auliye v. State, 57 P.3d 711, 713-15 (Alaska App.
2002).
6 AS 04.16.050(a); the exceptions are set out in AS
04.16.051.
7 AS 04.16.050(e).
8 Id.
9 See Anderson, 904 P.2d at 436 (quoting Maeckle, 792 P.2d
at 689).
10 Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct.
1919, 1927, 114 L.Ed.2d 524 (1991), superceded by rule on other
grounds as stated in United States v. Turner, 59 F.3d 481 (4th
Cir. 1995).
11 Chapman, 500 U.S. at 465, 111 S.Ct. at 1927 (internal
citations omitted).
12 See Treacy, 91 P.3d at 265 (in reviewing municipalitys
curfew ordinance, court ruled that government has a compelling
interest in protecting minors from crime and to curb juvenile
crime); L.A.M. v. State, 547 P.2d 827, 834 (Alaska 1976) (The
State has a legitimate interest in protecting children from
venereal disease, from exposure to the use of dangerous and
illicit drugs, from attempted rape, and from physical injury);
see also L.A.M., 547 P.2d at 836 n.1 (Boochever, J., concurring).
13 See Allam v. State, 830 P.2d 435, 440 (Alaska App. 1992).
14 AS 04.16.050(e).
15 See Allam, 830 P.2d at 436-37. See also L.A.M., 547 P.2d
at 836 n.1 (Boochever, J., concurring).
1 Auliye, 57 P.3d at 712, 717.
2 See Auliye, 57 P.3d at 713; AS 12.55.090(c). (Before
1994, the maximum period of probation under AS 12.55.090(c)
was 5 years).
3 Auliye, 57 P.3d at 713.
4 AS 47.12.120(b) (formerly AS 47.10.080(b)).
5 Id.
6 Auyile, 57 P.3d at 713-15.
7 See AS 04.16.050(d), which makes a third or subsequent
offense a class B misdemeanor. Persons who commit a class B
misdemeanor are subject to imprisonment for up to 90 days.
AS 12.55.135(b).
8 See Auliye, 57 P.3d at 715-16.
9 R.L.R. v. State, 487 P.2d 27, 33 (Alaska 1971).
10 The exception for third and subsequent offenses is
designed to allow the institutionalization of younger minors
who are convicted three or more times of possessing or
consuming alcoholic beverages. As noted in footnote 7, a
third or subsequent violation of AS 04.16.050 is a class B
misdemeanor. That is, if a minor is prosecuted under the
adult criminal system, the punishment for a third offense
can include imprisonment. In order to allow imprisonment of
younger third offenders, but to keep these younger offenders
segregated from an adult jail population, the legislature re-
asserted juvenile jurisdiction over these offenders. Even
though all minors who commit a first or second offense are
prosecuted as adults, AS 47.12.030(b)(5) declares that
minors under the age of 18 who commit a third offense are
covered by the delinquency laws which means that these
minors are subject to institutionalization under
AS 47.12.120(b).
11 Auliye, 57 P.3d at 713.
12 Rust v. State, 582 P.2d 134, 139-140 (Alaska 1978).
13 Henson v. State, 576 P.2d 1352, 1354 (Alaska 1978).
14 P.H. v. State, 504 P.2d 837, 841 (Alaska 1972).
15 State v. Sandsness, 72 P.3d 299, 302-03 (Alaska 2003);
Nao v. State, 953 P.2d 522, 525 (Alaska App. 1998).
16 See M.O.W. v. State, 645 P.2d 1229, 1231 n. 4 (second
paragraph) (Alaska App. 1982).
17 See State v. Esmailka, 961 P.2d 432, 435 (Alaska App.
1998) (No one questions the authority of the legislature to
prohibit and punish under-age possession or consumption of
alcoholic beverages.).
18 Nao v. State, 953 P.2d 522, 525 (Alaska App. 1998).
19 Alex v. State, 484 P.2d 677, 685 (Alaska 1971); Malloy v.
State, 1 P.3d 1266, 1282 (Alaska App. 2000).
20 Concerned Citizens of the South Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974);
Patterson v. State, 985 P.2d 1007, 1017-18 (Alaska App.
1999).
21 Dancer v. State, 715 P.2d 1174, 1181 (Alaska App. 1986),
quoting Stiegele v. State, 685 P.2d 1255, 1257 (Alaska App.
1984).
22 See Smith v. State, 28 P.3d 323, 325-26 (Alaska App.
2001); Pruett v. State, 742 P.2d 257, 262-63 (Alaska App.
1987). See also Bourdon v. State, 28 P.3d 319, 323 (Alaska
App. 2001), where we held that [when] the legislature
[denies] post-conviction bail to dangerous offenders, ... it
must act in an even-handed manner. That is, the legislature
must have some reasonable basis for concluding that the
types of offenders who are not eligible for post-conviction
bail release do indeed pose a greater danger than the types
of offenders who are eligible for bail release.
23 Alaska Constitution, Art. I, 12. See Perrin v. State,
543 P.2d 413, 414 (Alaska 1975); Dancer v. State, 715 P.2d
1174, 1182 (Alaska App. 1986).
24 Susan E. Foster, Roger D. Vaughan, William H. Foster, and
Joseph A. Califano, Jr: Alcohol Consumption and
Expenditures for Underage Drinking and Adult Excessive
Drinking, Journal of the American Medical Association, Vol.
289, No. 8 (February 26, 2003), pp. 989-995.
(Abstract available at
http://jama.ama-assn.org/content/vol289/issue8/index.dtl or
full text with subscription.)
25 Id.
26 AS 47.12.120(b) and (d).
27 AS 47.12.120(b)(1), (b)(2)(A), and (b)(3)(A).
28 Herreid, 69 P.3d at 508-09.
29 487 P.2d 27, 31 (Alaska 1971).
30 Braaten v. State, 705 P.2d 1311, 1324 (Alaska App. 1985).
31 State v. Andrews, 707 P.2d 900, 917 n. 14 (Alaska App.
1985), quoting Alaska Criminal Code Revision, Tentative
Draft, Part 6 (Feb. 1978), pp. 19-20.
32 See State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (the
range of reasonable sentences for a particular offense must
be determined by an examination of the particular facts of
the individual case in light of the total range of sentences
authorized by the legislature for the particular offense);
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)
(sentences are to be evaluated for excessiveness by
assessing the nature of the offense, the character of the
offender, and the protection of the public interest).
