Written by:  Jack R. McKenna

Alaska’s criminal statutes have undergone significant revision in the last two years.  Many of those modifications to state law have necessitated corresponding changes to various Alaskan communities’ municipal codes.  On November 26, Governor Walker signed Senate Bill 54 (“SB54”), making additional significant changes to the state’s criminal statutes. Those changes in SB54 could invite further action by municipalities.

In 2016, the enactment of Senate Bill 91 (“SB91”) significantly altered how many crimes were defined and punished.  In most instances, SB91 lowered the length of jail time that could be imposed for many low-level offenses, or, in some instances, altogether removed the possibility of incarceration.  Following SB91’s passage, municipalities in Alaska had to amend portions of their municipal codes because a municipality cannot impose a more punitive sanction than the analogous state statute.  See Alaska Const. Art. X, s 11 and AS 29.25.070(g).  So, for instance, municipalities had to amend code sections defining sentences of imprisonment for misdemeanors when SB91 lowered the allowable punishment for those crimes under state law.

Following SB54’s enactment, municipalities will again need to decide whether and how their codes must be altered to comply with state law.  Among many changes relevant to municipalities in Alaska, SB54 contains numerous revisions to how misdemeanor crimes are classified and punished.  In contrast to SB91, SB54 generally increases the length of potential jail sentences that can be imposed for particular crimes.  SB54 also reclassifies as misdemeanors some offenses that had been reduced to violations.

For example, SB91 had raised the dollar-value amounts that were used to classify various levels of property offenses.  The most visible example of this was in the definitions of felony theft in the second degree, as defined in AS 11.46.120, and misdemeanor theft in the third degree, as defined in AS 11.46.130.  Prior to 2016, the difference between the two offenses was set at $500.  Theft of property that was valued at less than $500 was a misdemeanor while a theft above that amount was a felony.  SB91 increased that amount to $1,000.  SB54, as currently written, decreases the value back down to $750.  This same change has been enacted for other property offenses that are similarly classified by dollar value.  Those include, among many others, criminal mischief, concealment of merchandise, and vehicle theft.  Most municipalities that have enacted criminal offenses as part of their code include offenses against property.  Those that specify dollar amounts will have to decide whether to update their code to align their codes with state law.

Another significant change that is emblematic of SB54’s impact on municipalities’ criminal codes is the reclassification of violation of conditions of release (“VCR”) as defined in AS 11.56.757.  Prior to 2016, that crime was a misdemeanor.  SB91 reclassified VCR as an offense for which only a fine and no jail time could be imposed.  SB54 restores the possibility of jail time by making VCR a class B misdemeanor.  Municipalities, such as Dillingham and Anchorage, that have code provisions criminalizing VCR will need to decide whether to bring their codes in line with the increased punishment authorized under state law. See Dillingham Municipal Code § 9.70.010 and Anchorage Municipal Code § 8.30.110.

Municipalities that specify penalties for violations of their codes might also be affected by SB54’s passage.  The bill contains multiple revisions to misdemeanor sentences as specified in AS 12.55.135.  The maximum penalty for committing a class B misdemeanor, as set out in AS 12.55.135(b), now includes a maximum sentence of 5-days imprisonment for VCR.  AS 12.55.135(l) has also been amended to alter the penalty for theft in the fourth degree.  Municipalities will need to choose whether to amend their criminal codes to align with these new penalties.

Some have argued that SB54 likely contains at least one unconstitutional provision.  That potential issue concerns the similar range of sentences for class C and class B felonies.  As of now, no municipality in Alaska has enacted felony offenses as part of their codes.  This potential issue with SB54 should therefore not impact municipalities who have enacted criminal offenses.

Because the revisions in SB54 generally make state laws more punitive than their previous versions, current municipal codes that were brought into line with SB91 will likely not violate AS 29.25.070(g).  (As noted above, that statute mandates that municipality cannot impose a greater punishment than the state for a similar offense.)  But municipalities in Alaska will likely want to decide whether to follow the Alaska Legislature’s recent approach as laid out in SB54.  For instance, changes could potentially be made to the definition of property offenses and the penalties prescribed for various violations.  Each community will now be able to decide whether to follow suit with the state.