Veterans sentencing bill advances despite concerns over court authority

The Alaska House Judiciary Committee heard testimony Friday on legislation that would expand veterans' access to therapeutic courts, despite warnings from state prosecutors and court officials that the bill could trigger significant litigation over separation of powers.

House Bill 299 would allow veterans convicted of probation-eligible misdemeanors to enter treatment programs even if prosecutors object. That is a departure from the current system in which prosecutors hold veto power over who enters veterans courts. The bill would codify eligibility standards and give judges authority to determine whether a veteran qualifies for the program. The measure, which has been referred to both the House Judiciary Committee and the House Department of Military and Veterans Affairs Committee, would amend Alaska Rules of Criminal Procedure 35 and 43 by creating the veteran sentencing program and alternate procedures for dismissing charges.

Brock Hunter, co-founder of the Veterans Defense Project, said the legislation builds on a model that passed unanimously in Minnesota in 2021. He said Minnesota's fiscal analysis projected cost savings of around $1 million per year through reduced jail and prison beds and fewer trials.

"This past year, the Minnesota Sentencing Guidelines found that the act had been used in 115 veteran cases, and of those, 91 had successfully completed their program and earned the dismissal of their charges," Hunter said.

Hunter said key prosecutors in Minnesota participated in drafting that state's legislation and that the County Attorneys Association supported its passage. He said he is not aware of any significant litigation around the issue in Minnesota, a contrast with the concerns raised by Alaska prosecutors.

The bill would require veterans to prove eligibility by showing they have mental or physical symptoms of a condition stemming from military service. Hunter said the burden of proof rests with the veteran, who must provide medical records or other documentation to the court and prosecutor.

"What this basically does is it provides a due process process for a veteran to pursue if they believe that they should be eligible under the statute," Hunter said. "The judge is the decision maker. The prosecutor has the opportunity to object. The veteran has the burden of proof to show by, in Minnesota, clear and convincing evidence that they meet the criteria under the statute."

But Angie Kemp, deputy attorney general with the Department of Law's Criminal Division, said the current draft lacks the clear and convincing evidence standard that Minnesota included. She said the absence of that language would likely generate litigation over who bears the burden of proof.

Kemp also raised concerns about separation of powers. The bill would allow courts to dismiss or amend charges, functions that traditionally belong to prosecutors. She cited Alaska case law in which courts rejected a judge's attempt to dictate how charges should be amended, calling it a violation of separation of powers.