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State v. Judson4/12/2002
sion.
When the Alaska legislature amended AS 12.55.025(c) to give defendants "credit for time served", the legislature was pursuing the aim of equal treatment among rich and poor. That is, the legislature wanted to make sure that an indigent defendant who could not secure bail release (and who therefore remained in jail while awaiting trial) would not be forced to serve more total time in jail than another defendant who remained free pending trial and who then received the same sentence.
In Nygren v. State , this court expanded the concept of "credit for time served" when we held that AS 12.55.025(c) was not limited to defendants who spent time in jail before conviction, but rather applied to all defendants who were confined by court order to a jail-like residential facility while awaiting trial and sentencing.
We are now confronted with an instance in which a defendant took strategic advantage of our Nygren decision by asking the trial court to order him to stay in a residential treatment facility while he awaited sentencing. I agree with my colleagues that this was legal and that the defendant was entitled to claim credit against his eventual sentence for the days he spent in the treatment facility. But our decision holds disquieting consequences.
Now that we have decided that Nygren credit is available to defendants who ask the trial court to order them into residential treatment, I fear that defendants may again be divided into rich and poor. Defendants who can afford the expense of a residential treatment facility will ask the court to place them there - with the result that these defendants will effectively serve their sentences in treatment facilities (for they will receive credit for the days spent there). Poorer defendants, on the other hand, will serve their sentences in jail.
It is hard to fault the trial judge for ordering Judson to engage in residential treatment for twenty days rather than having him sit in jail for twenty days. Presumably, society is better off whenever a defendant receives active treatment while in custody. And if a defendant is willing and able to pay for their own treatment, so much the better. But unless our government makes a real effort to provide treatment alternatives for defendants with less money, we in Alaska may have to get used to seeing the same type of story that intermittently appears in the media when movie stars or sports celebrities are charged with a crime involving substance abuse: the rich and the famous go to treatment centers, while other defendants go to prison.
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