dissenting.
I write separately because I am concerned that this court's decision will be interpreted too narrowly and unduly restrict a trial court's authority to do justice in individual cases.
We can say some key things with relative certainty in this area of the law. Under Criminal Rule 35(b), courts have 180 days from the time of sentencing to modify a sentence. Courts also have the authority, under AS 12.55.015(a)(8), to impose a "peri-
*819odic sentence." The statute does not define "periodic imprisonment," but, as an example, the commentary to the Alaska revised criminal code provides, "serving a prison term on weekends."1 The commentary recognizes that some circumstances warrant periodic sentences but urges sentencing courts to impose them sparingly because of the administrative burdens they create for correctional institutions.2 The tentative draft to the revised criminal code expressly provided that a court should impose a periodic sentence only if doing so would serve the purposes of sentencing (set out elsewhere in the statute).3 The draft commentary gives this example of a circumstance justifying a periodic sentence: "the impact that serving a continuous 10-day mandatory sentence for [DWI] could have on a young person in the senior year of high school might well be disproportionate if the offender was required to repeat the entire school year as a result of missing too many school days or exams." 4
From this body of law, it is fair to conclude that the legislature did intend for courts to use their power to impose periodic sentences sparingly to avoid putting an undue burden on the Department of Corrections, which has primary responsibility for sentenced prisoners. The Department of Corrections has its own furlough program that may very well adequately address most of prisoners' needs. But this court has little information about how the Department of Corrections manages its furlough program. And, as long as judges use their power to modify sentences and to impose periodic sentences sparingly, I believe that this power is a valuable tool in allowing courts to impose just sentences. I would therefore allow courts wide flexibility. Consequently, I would define a periodic sentence merely as a sentence that is interrupted in some way.
The example of a periodic sentence in the tentative draft of the revised criminal code provides a good example. A young woman in her senior year of high school is convicted of driving while intoxicated and faces a mandatory term of imprisonment. The judge should be able to sentence her to jail while structuring her sentence so she is able to take her final exams.
As a practical matter, the flexibility to impose periodic sentences allows courts to sentence offenders to jail while still meeting an offender's critical needs. Without this flexibility, a court might have to choose between imposing a shorter sentence that does not adequately reflect the defendant's conduct and a longer sentence that would cause disproportionate harm by, for example, preventing a high school senior from taking final exams. Another example is a commercial fisher who must support a family during a short fishing season. Certainly a court should have the authority to sentence the offender to a sentence of imprisonment but to fashion the sentence so that the offender is released to fish during the short season.
Now I am fairly certain that my colleagues would agree that a court has the authority to impose a sentence that would enable the high school senior to take her exams or the commercial fisher to pursue his livelihood. But I am concerned that the court's opinion will be read too narrowly to unduly erode the flexibility of courts to sentence.
For instance, in the case of Pamela Fain, the record is inadequate for us to review the trial court's decision. Fain asked for release so that she could arrange for child care for her son and make a doctor's appointment for him. For all we know, these matters were true emergencies and Fain had no alternative but to attend to these matters herself for the welfare of her child. We do not know if the Department of Corrections could have responded to these needs. If a temporary *820release to take care of emergency matters was not available, the court had the authority to modify Fain's sentence to provide for her immediate release. To me, it seems wiser to allow the court the flexibility to temporarily release Fain to deal with an emergency. I could make similar arguments for the other releases this court is reviewing. The point is that I want courts to have a great deal of flexibility to respond to emergency or difficult situations. And I do not believe the law prevents this.
That having been said, I agree with the majority that the power to impose periodic sentences is one that the legislature has told courts to use sparingly. Furthermore, I agree that the primary authority and responsibility for sentenced prisoners lies with the Department of Corrections and courts should fully consider the Department's primary authority and the administrative burden that the court's sentencing orders might impose.
The problem with the cases we have been asked to review is that the record does not show that the courts in question were using their power to impose periodic sentences sparingly and that they were considering the impact of the orders on the Department of Corrections. In my view, if these cases were not moot, I would remand the cases back to the trial court for reconsideration. My concern is that, by simply saying that the court orders in these cases were not authorized, this court could be interpreted as unduly restricting the authority of courts to impose or modify sentences in unusual situations where justice calls for courts to show flexibility in sentencing.
. See Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 149 (June 12, 1978); see also State v. Brinkley, 681 P.2d 351, 355 (Alaska App.1984) (describing sentence served on three-day weekends every other weekend for two years as a "periodic sentence").
. See Commentary to the Revised Criminal Code, Senate Journal Supp. No. 47 at 149.
. See Alaska Revised Criminal Code, Part VI at 61 (Tentative Draft, February 1978).
. Alaska Revised Criminal Code, Part VI at 68 (Tentative Draft Commentary, February 1978).