Legislature(1993 - 1994)
03/01/1993 09:10 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 19(JUD):
An Act relating to the crime of conspiracy.
Co-chair Pearce announced that CSSB 19 was before the
committee and invited Senator Rick Halford, sponsor of the
bill, to join the committee at the table. She asked Senator
Halford to speak to the fiscal notes as well as giving an
overview of the bill.
SENATOR RICK HALFORD stated that a similar bill to SB 19 had
passed the Senate in the 1992 legislative session. He said
that SB 19 recognizes the crime of conspiracy and makes the
penalty one step down from the commission of that crime. He
said that Alaska was one of the few states that did not have
conspiracy legislation. He directed attention to the zero
fiscal notes for the Department of Law and Department of
Public Safety. The Court System shows a fiscal note of
$121.1, and Department of Corrections, $365.0. He observed
that the two highest fiscal notes, totaling almost $1M, were
for the Office of Public Advocacy at $513.0, and the Public
Defender Agency showing $402.6. He felt the two high fiscal
notes were unrealistic, and reflected the departments'
disapproval of the legislation. He asked the committee to
consider the reasoning of the Department of Law that said
more cases could be settled with a conspiracy statute in
place than might be settled otherwise.
SENATOR JAY KERTTULA pointed out that the zero fiscal note
by the Department of Law conversely showed its support of
CSSB 19. He suspected that there would be some cost to the
Department of Law. He supported any statute that would
increase the chance of convicting felons and other
criminals. He asked Senator Halford to speak to the fact
that nationwide, the conspiracy statutes have been used
extensively to convict white collar criminals.
Senator Halford said that last session the House had made an
effort to broaden the conspiracy bill to include other
crimes. He maintained that CSSB 19 only dealt with serious
felony offenses. In answer to Co-chair Frank, Senator
Halford defined a "serious felony offense" as an offense
"...against a person under AS 11.41, punishable as an
unclassified or class A felony," such as murder, rape,
kidnapping, "or involving controlled substances under AS
11.71, punishable as an unclassified, class A, or class B
felony," such as trafficking drugs.
DEAN J. GUANELI, Chief, Criminal Division, Department of
Law, spoke to class B felonies in connection with controlled
substances. He said the primary offense under this statute
was the sale of cocaine. A class A felony was primarily the
sale of heroin, and unclassified drug offenses targeted
large drug rings, and the sale of heroin and cocaine to
minors. In answer to Co-chair Frank, Mr. Guaneli said,
under current Alaska law, criminal liability can attach to a
person that pulls the trigger, or to someone who aids and
abets that person, or to a person that attempts that crime.
He said what is missing in Alaska law, that exists in most
other states, is the ability to attach criminal liability
when two people get together to plan a felony, and begin to
carry it out. He explained that the theory underlying
conspiracy was that it is important to stop an offense such
as contract murder, early in the planning stages. The other
theory is that when two people get together to plan a crime,
it is more likely that it will happen. He admitted, that
within Alaska, other theories of criminal liability, aiding
and abetting, soliciting, overlap to some extent. But he
felt there are particular circumstances involving criminal
organizations and drug rings where the only way to reach a
criminal is through a conspiracy law.
Co-chair Frank asked how many additional situations would
CSSB 19 create where the Department of Law would make
arrests, and/or take to court individuals, and how that was
reflected in the zero fiscal note. Mr. Guaneli said that
there were very few cases where conspiracy would be the only
crime charged. The conspiracy offense would almost always
be combined with other more serious offenses. The
conspiracy offense, being a lesser offense, could be used to
plea bargain, for example, to facilitate testimony, or if
there is not enough evidence to hold the individual on the
more serious offense, conspiracy would be the only remaining
offense.
SENATOR TIM KELLY had noticed on the Judiciary Committee
Report that two senators had recommended "do pass" with
amendments. He asked what those amendments were. Senator
Halford said that the amendments were similar to ones added
last session to the House conspiracy bill. One amendment
said that an individual who was originally involved in the
conspiracy, but after alerting the police, could return as
an undercover agent in that conspiracy, and would not be
charged in the conspiracy. Another amendment said the
individual had to agree to, take action, and communicate
about the crime, in order to be charged. Another question
was whether a law enforcement officer could be involved in
the beginning of a conspiracy. Senator Kerttula agreed that
someone in the law enforcement agency might initiate a crime
and that could become part of a conspiracy. In which case,
nothing would have ever happened if it had not been
initiated in the first place. He pointed out that CSSB 19
would increase the cost for the entire justice system, and
quoted from the backup for the Department of Law's fiscal
note.
Mr. Guaneli said conspiracy laws formerly introduced had a
much broader range. Senator Kerttula asked Mr. Guaneli if
he had enough funding to run the Department of Law. Mr.
Guaneli said that any agency could use more money, and this
year there was a small increase in the Governor's funding
this year.
Mr. Guaneli noted that CSSB 19 was directed at serious
offenses. He stated that a directive would be issued to all
law enforcement agencies that it not their responsibility to
file charges involving conspiracy. After a careful review
of the evidence, prosecutors would make the decision to
charge an individual with a conspiracy. He assured the
committee that he would not be coming back to the
legislature asking for additional funding if CSSB 19 passed.
Senator Kerttula said that it was his long experience that
the present administration's attitude toward certain
legislation may change drastically in ten years or less, and
could run off in another direction without controls of some
kind in place.
Co-chair Frank asked how CSSB 19 would be limited to the
Department of Law. Mr. Guaneli said even though the police
would have the authority to file a conspiracy complaint in
court, the Department of Law would discourage it. He said
that Department of Law would insist that conspiracy charges
would originate in the Department of Law. Co-chair Frank
asked if the Department of Law would like to see wording to
that effect in CSSB 19. Mr. Guaneli said he felt that would
not be necessary. He proposed that the state troopers and
the larger police agencies would cooperate in this area.
Discussion followed between Senators Kelly, Kerttula and Mr.
Guaneli regarding language in the bill speaking to a
conspiracy charge not being initiated by an undercover or
law enforcement authority. Mr. Guaneli felt that the
entrapment laws took care of that concern. Senator Kerttula
proposed that a letter of intent be added to CSSB 19. Co-
chair Pearce agreed to work with Senator Kerttula on
language for a letter of intent.
Co-chair Frank related his concern that this law would
increase the number of individuals jailed and length of
sentences, which in turn would raise Department of
Corrections' costs. Mr. Guaneli said that CSSB 19 was
amended in Senate Judiciary Committee to say that proof
beyond a reasonable doubt of intent to facilitate a
particular crime, an agreement between two parties to carry
it out, and an overt act in order to charge an individual of
conspiracy. Included in that amendment was a definition of
an overt act. He concluded that in the terms of the
elements that have to be proven, it showed that it was an
act that should have been stopped.
Senator Kelly suggested that the letter of intent state that
CSSB 19 was not meant to get around the entrapment statute.
Co-chair Pearce asked Senators Kelly, Kerttula, Halford, and
Mr. Guaneli to draft a letter of intent for CSSB 19 . With
no further testimony to be heard, Co-chair Pearce announced
that CSSB 19 would be HELD in committee and heard again on
Wednesday, March 3, 1993.
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