concurring.
I agree that Judge Collins made sufficient findings to refer Luckart's case to the three-judge panel. Judge Collins found a non-statutory mitigating factor based upon Lue-kart's youth, his lack of adult criminal record, his cooperation with and immediate confession to the police, and his apparent remorse. She also found, based upon these same factors, that it would be manifestly unjust to sentence Luckart within the presumptive range for his offense: a minimum sentence of twenty-five years, with no eligibility for parole until he had served nearly seventeen years.
The three-judge panel agreed with Judge Collins that, based upon these factors, a sentence within the applicable presumptive range would be manifestly unjust. I agree with the opinion of this court that, under these circumstances, the three-judge panel was required to keep Luckart's case and to sentence him to a term of imprisonment below the presumptive range.
I write separately to point out an argument Luckart made on appeal that has some force and that I hope the three-judge panel will consider in imposing sentence. Luckart reviewed the legislative history of the 2006 revisions to the presumptive sentencing ranges and observed that the steep increase in the ranges for sexual offenses was based on the legislature's findings that sex offenders do not respond to rehabilitative treatment and usually are not caught until they have committed many sex crimes. Luckart argues that it would be manifestly unjust to sentence him based upon these legislative assumptions, because they do not apply to him.
When the legislature enacted these sentencing ranges, it issued a letter of intent entitled "The Purposes And Rationale Underlying The Increase In Sentencing Ranges For Felony Sex Crimes In Alaska.1 That letter sets out the legislative finding that Alaska has an extremely high level of sexual offenses.2 The letter states that these offenses cause substantial harm to the victim, the victim's family, and society.3 In addition, the letter finds "that sex offenders have multiple victims and often do not respond to4 The legislature concludes that these factors support the need to isolate sex offenders to protect the public and to deter potential offenders, to the extent they can be deterred, from committing these offenses.5
In setting these higher sentencing ranges for sex offenses, the legislature specifically recognized that there would be exceptional cases that "[ery] out for mercy."6 The letter of intent points out that "[the criminal justice system often weeds these cases out in the referral and plea bargaining process.7" The letter also notes that "the courts of Alaska will be able to avoid manifestly unjust sentences in appropriate cases" by applying statutory mitigating factors or referring cases to the three-judge panel.8
From my review of the legislative history, I conclude that the legislature increased the presumptive sentencing ranges for sexual *823abuse of a minor and sexual assault in part to address the seriousness of these offenses and their negative impacts on victims and society. These factors are present in every sentencing case, and courts should consider them in imposing sentence.
But the presumptive ranges were also based on the legislature's conclusions that sexual offenders usually commit multiple offenses before they are caught, do not respond to rehabilitative treatment, and therefore cannot be safely released into society. It seems to me that a defendant convicted of a sex offense should have the opportunity at sentencing to rebut the assumptions underlying these conclusions, and to argue for a departure from the presumptive range on this basis. Indeed, in its letter of intent, the legislature specifically recognized that there would be cases in which sentencing a defendant within the presumptive range would be manifestly unjust. The legislature also specifically noted that it was counting on the court system to provide a safety valve in such cases.
Under this court's decision, Luckart's case now returns to the three-judge panel. I would urge the panel to consider the legislative history behind the presumptive range applicable to Luckart's case. Luckart is a young first felony offender with no prior adult record. To the extent that Luckart can demonstrate to the panel that the legislative assumptions underlying the presumptive sentencing range for his offense do not apply to kim, the panel would be justified in considering that evidence in determining an appropriate sentence.
. 2006 Senate Journal 2207-14.
. Id. at 2208.
. Id. at 2210-11.
. Id. at 2210.
5. Id. at 2210-11.
. Id. at 2212.
. Id.
. Id.