Legislature(1995 - 1996)

04/21/1995 08:30 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                     HOUSE FINANCE COMMITTEE                                   
                         April 21, 1995                                        
                            8:30 A.M.                                          
                                                                               
  TAPE HFC 95-90, Side 1, #000 - end.                                          
  TAPE HFC 95-90, Side 2, #000 - end.                                          
                                                                               
  CALL TO ORDER                                                                
                                                                               
  Co-Chair  Mark Hanley  called  the  House Finance  Committee                 
  meeting to order at 8:40 a.m.                                                
                                                                               
  PRESENT                                                                      
                                                                               
  Co-Chair Hanley                                                              
  Co-Chair Foster               Representative Martin                          
  Representative Brown          Representative Navarre                         
  Representative Grussendorf    Representative Therriault                      
  Representative Kelly                                                         
  Representative Kohring                                                       
                                                                               
  Representatives  Parnell, and  Mulder were  absent from  the                 
  meeting.                                                                     
                                                                               
  ALSO PRESENT                                                                 
                                                                               
  Representative Con  Bunde; Laurie  H. Otto, Deputy  Attorney                 
  General,  Criminal   Division,  Department  of   Law;  Jerry                 
  Luckhaupt,  Legislative  Legal Counsel,  Legislative Affairs                 
  Agency; Barbara Brink, Public Defender Agency, Department of                 
  Administration.                                                              
                                                                               
  SUMMARY                                                                      
                                                                               
  HB 38     An Act relating  to criminal sentencing;  relating                 
            to  the  availability  for good  time  credit  for                 
            offenders  convicted  of   certain  first   degree                 
            murders; relating to mandatory  life imprisonment,                 
            parole, good  time credit, pardon,  commutation of                 
            sentence, modification or  reduction of  sentence,                 
            reprieve, furlough, and service  of sentence at  a                 
            correctional restitution center for offenders with                 
            at  least three  serious  felony convictions;  and                 
            amending Alaska Rule of Criminal Procedure 35.                     
                                                                               
            CSHB 38 (JUD)  was reported out of  Committee with                 
            and  with  four fiscal  impact  notes; one  by the                 
            Alaska Court System; one by the Department of Law;                 
            and two by the Department of Administration, dated                 
            3/22/95; and with  two zero  fiscal notes; one  by                 
                                                                               
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            the  Department  of  Corrections; and  one  by the                 
            Department of Public Safety.                                       
  HOUSE BILL NO. 38                                                            
                                                                               
       "An  Act relating  to criminal sentencing;  relating to                 
       the  availability  for good  time credit  for offenders                 
       convicted of  certain first degree murders; relating to                 
       mandatory life imprisonment,  parole, good time credit,                 
       pardon,  commutation  of   sentence,  modification   or                 
       reduction of sentence, reprieve, furlough, and  service                 
       of sentence  at a  correctional restitution  center for                 
       offenders   with   at   least   three  serious   felony                 
       convictions;  and  amending  Alaska  Rule  of  Criminal                 
       Procedure 35."                                                          
                                                                               
                                                                               
  REPRESENTATIVE  CON BUNDE, SPONSOR spoke on behalf of HB 38.                 
  He explained that  the legislation provides a  definite term                 
  of  imprisonment of 40 to  99 years for  a specific group of                 
  offenders  who   have  two   separate  prior   class  A   or                 
  unclassified  felony  convictions.    Under the  legislation                 
  discretionary  parole and good  time sentence reductions are                 
  not available  to these  offenders.   However, HB  38 allows                 
  those sentenced to a definite term of  40 to 99 years to ask                 
  the court for a reduction in sentence after they have served                 
  the greater of one  half of the definite  term or 30  years.                 
  He   maintained   that   the   proposed  legislation   gives                 
  prosecutors some discretion in the  decision to pursue third                 
  strike  sentencing.   He  observed  that the  provision will                 
  allow the prosecutor  some flexibility  to proceed with  the                 
  normal presumptive sentencing provisions when necessary.  He                 
  acknowledged that there are costs  associated with keeping a                 
  person  incarcerated  for an  extended period  of time.   He                 
  asserted that the legislation was drafted to keep  the costs                 
  to a  minimum.   He emphasized that  strong punishments  can                 
  deter crime.   He maintained that  the legislation can  help                 
  make the state a safer place to live.                                        
                                                                               
  In  response to  a question  by Representative  Grussendorf,                 
  Representative  Bunde clarified  that  convictions in  other                 
  states would be  counted if  the conviction qualifies  under                 
  the offenses listed and was in the recent past.                              
                                                                               
  LAURIE  OTTO, DEPUTY  ATTORNEY  GENERAL, CRIMINAL  DIVISION,                 
  DEPARTMENT OF LAW responded to  a question by Representative                 
  Therriault.  She explained that multiple instances of lesser                 
  offenses would  not  kick an  offender  to a  higher  felony                 
  count.  She referred  to page 7, lines 1 -  3, which defines                 
  "most serious felony" as any unclassified or class A felony,                 
  or an attempt  or conspiracy  to commit those  crimes.   She                 
  observed that a person  charged with attempting to  commit a                 
                                                                               
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  class A felony, which is a class B felony, could trigger the                 
  provisions of the legislation.                                               
                                                                               
  Representative Grussendorf observed  that the Department  of                 
  Law will have the  discretion to seek sentencing.   Ms. Otto                 
  pointed out that  attorneys' ability to  exercise discretion                 
  differs.  She felt  that the provision for discretion  is an                 
  improvement to prior legislation.                                            
                                                                               
  Representative  Brown  asked  the   definition  of  criminal                 
  solicitation under AS  11.31.110.   Ms. Otto explained  that                 
  criminal solicitation refers to  the act of trying to  get a                 
  person to commit a crime.                                                    
                                                                               
  In  response   to  a   question  by  Representative   Brown,                 
  Representative Bunde noted that the legislation differs from                 
  prior   legislation  (HB   334,  introduced   in  the   18th                 
  Legislature) by changing  the mandatory sentence from  30 to                 
  99 years, to 40  to 99 years.  He observed  that the average                 
  sentence currently served  for a third felony  conviction is                 
  12.5 years.   Ms. Otto  added that the  elimination of  good                 
  time  accounts for  the  difference  of  time served.    She                 
  pointed out that good time  allows supervision after release                 
  and helps to control behavior during custody.                                
                                                                               
  Representative  Brown  referred  to  HB   219.    Mr.  Bunde                 
  clarified that parole of terminally  ill prisoners under the                 
  provisions  of  HB  219 would  supercede  the  provisions of                 
  mandatory sentencing under HB 38.  Ms. Otto explained that a                 
  prisoner can apply for modification  of sentencing after one                 
  half of the sentence  or 30 years, whichever is  greater, is                 
  served.                                                                      
                                                                               
  In response  to a  question by  Representative Navarre,  Ms.                 
  Otto  explained  that   an  amendment   to  guarantee   that                 
  provisions of medical parole would supercede mandatory three                 
  strike sentencing cannot be  included in HB 38 since  HB 219                 
  has  not  passed the  legislature.    She thought  that  the                 
  provisions of medical release would apply.                                   
                                                                               
  JERRY  LUCKHAUPT,  LEGISLATIVE COUNSEL,  LEGISLATIVE AFFAIRS                 
  AGENCY stated that  HB 219  was drafted with  the intent  to                 
  apply  not  withstanding any  other  provision of  law.   He                 
  agreed that it  would be impossible to draft to  a bill that                 
  had not passed.                                                              
                                                                               
  Representative   Grussendorf   noted  that   most  offenders                 
  sentenced  under  the legislation  would  be in  their later                 
  years.                                                                       
                                                                               
  Representative  Brown observed that  the legislation will be                 
  costly.    She asked  if  the  Department of  Law  feels the                 
                                                                               
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  legislation is necessary.                                                    
                                                                               
  Ms.  Otto  prefaced  her statements  by  stressing  that the                 
  current legislation is successful in  narrowing the focus of                 
  offenses  and   requiring  sequential   convictions.     She                 
  emphasized   that  the   legislation  will   eliminate  plea                 
  bargaining for the offenses outlined.  She stressed the cost                 
  of taking these cases  to trial.  She provided  members with                 
  charts detailing serious  felonies referred for prosecution,                 
  misdemeanors referred for prosecution,  the number of trials                 
  and the amount of prosecutors  from 1989 to 1995 (Attachment                 
  1).   She summarized  that the  use of  plea bargaining  has                 
  enabled   the  Department  to  keep  pace  with  substantial                 
  increases in serious  felonies and misdemeanors referred  to                 
  prosecution  without   an  increase  in  prosecutors.    She                 
  maintained that the Department cannot handle the increase in                 
  trial time without increased resources.                                      
                                                                               
  Ms. Otto stated  that if there  are additional resources  to                 
  put in to prosecution that she would choose to use the money                 
  to try first degree robbery and first  degree sexual assault                 
  cases;  and   competently  handle  these  cases  instead  of                 
  channeling scarce  resources  into getting  those  that  are                 
  already receiving long sentences, longer sentences and being                 
  forced to take these cases to trial.                                         
                                                                               
  In response to a question by Representative Martin, Ms. Otto                 
  observed  that  the ban  on  plea bargaining  was officially                 
  lifted over a year ago.  She noted  that plea bargaining has                 
  increased in  the past  four years.   Representative  Martin                 
  expressed  concern  that  plea   bargaining  is  undermining                 
  justice  and  encouraging  more  crime.   Ms.  Otto  briefly                 
  reviewed the  recent use of  plea bargaining.   She observed                 
  that the ban placed by former  Attorney General Av Gross was                 
  eliminated under Governor  Hickel.  She stressed  that state                 
  revenues  are declining.  She observed the cost of providing                 
  public  defenders and advocates,  and court costs associated                 
  with taking cases to trial.   She agreed with Representative                 
  Martin that  the legislation  will provide  an incentive  to                 
  plea bargain lesser  charges.   She observed that  offenders                 
  will fight to  prevent convictions  on their second  strike.                 
  Ms. Otto agreed that  these serious offenders need to  be in                 
  jail for a long time.  She stressed that money is the issue.                 
                                                                               
  Representative  Bunde disagreed  that  plea bargaining  will                 
  increase.  He stated  that offenders will opt to  have their                 
  cases tried in  hopes of convincing  a jury.  He  maintained                 
  that  criminals  commit  crime knowing  that  they  can plea                 
  bargain to a lesser crime.                                                   
                                                                               
  Co-Chair  Hanley  observed that  offenders  may try  to plea                 
  under an unclassified or class A felony charge.                              
                                                                               
                                4                                              
                                                                               
                                                                               
  Representative Therriault summarized  that the  Department's                 
  position is that the legislation represents a good idea, but                 
  questions  whether  the  state  can  afford  the  cost.   He                 
  expressed  concern that  state revenues  cannot support  the                 
  cost of the legislation.                                                     
                                                                               
  Representative Bunde questioned the  accuracy of the  fiscal                 
  notes.  He  observed  that there  will  be  no  cost to  the                 
  corrections system for  the first twelve  and a half  years.                 
  He  emphasized  that  the old  system  does  not  work.   He                 
  maintained that it costs more money to allow criminals to be                 
  on the street.   He estimated that 5 to 6  people would fall                 
  under the purview of the legislation.                                        
                                                                               
  Representative  Therriault  pointed  out  that  there  is  a                 
  potential huge impact to  the criminal system at the  end of                 
  twelve  and a half  years.  He stressed  the need to balance                 
  support of the legislation with fiscal reality.                              
                                                                               
  Representative Martin suggested  that the "greatest security                 
  in the  world is to  be an  Alaskan prisoner".   He observed                 
  that prisoners  have  great medical  benefits, three  meals,                 
  recreational benefits,  housing, clothing  and shelter.   He                 
  asserted  that  the real  cost is  the "revolving  door" and                 
  crime on the street.                                                         
                                                                               
  BARBARA  BRINK,  DEPUTY   PUBLIC  DEFENDER,  ALASKA   PUBLIC                 
  DEFENDER'S    AGENCY,    ANCHORAGE    testified   via    the                 
  teleconference  network.      She  stressed   there  is   no                 
  possibility  of  parole  or  good  time  allowed  under  the                 
  legislation.   She  observed  that HB  38  creates the  most                 
  severe penalty available in the  state.  She maintained that                 
  the legislation will  result in  increased litigation.   She                 
  observed  that  anyone  charged  with  a third  strike  will                 
  definitely go  to trial.   She emphasized  that these  cases                 
  will require the most skilled and experienced litigators and                 
  most expensive attorneys.   She stated that  the legislation                 
  will have an  immediate impact.   She noted that the  Alaska                 
  Judicial  Council  estimated that  between  10 and  34 cases                 
  could be charged.   She observed that the Department  of Law                 
  estimated  10 to 15 cases a year could be charged under this                 
  section.  She suggested that the effect would be the same as                 
  10 to 15 additional homicide cases a year.                                   
                                                                               
  (Tape Change, HFC 95-90, Side 2)                                             
                                                                               
  He  added  that  prior  convictions  will  also have  to  be                 
  litigated to  assure the validity of the  two prior strikes.                 
  She emphasized that  some prior strikes could  have occurred                 
  in  other states.    She added  that  offenders will  demand                 
  trials on their first  two strikes as well.   She emphasized                 
                                                                               
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  that 94 percent of current felony cases are resolved without                 
  trial.    She  maintained that  plea  bargaining  allows the                 
  system  to  operate.    She asserted  that  the  system will                 
  collapse without plea bargaining.                                            
                                                                               
  Ms. Brink referred to experiences  of other states that have                 
  initiated similar legislation.   She  maintained that  every                 
  state  that   has  enacted  third  offense  legislation  has                 
  consistently  underestimated the  impact  on their  criminal                 
  justice  system.   She stated  that in  California  one year                 
  after a three strikes bill was adopted, less than 14 percent                 
  of  their  felony cases  are  plea  bargained.   There  is a                 
  backlog in  California of 740,000 cases.   She stressed that                 
  there has  not been any evidence demonstrating a decrease in                 
  the  crime  rate.     Violent   crimes  have  increased   in                 
  California.  She asserted that more cases will be filed as a                 
  result of the legislation.                                                   
                                                                               
  Ms. Brink observed  that the rate  of violent crime fell  22                 
  percent between  1980 and 1992,  based on statistics  by the                 
  Federal Bureau of Investigations and  the Bureau of Justice.                 
  The rate is lower today than in 1993.  In Alaska the violent                 
  crime rate is approximately the same as in 1985.                             
                                                                               
  Ms.  Brink  stressed  that violent  crime  is  increasing in                 
  younger populations.   She pointed out that  the legislation                 
  does  not  address  the  increase  of crimes  among  younger                 
  offenders.  She observed that crime among offenders 35 years                 
  of age and older has decreased dramatically.                                 
                                                                               
  Ms. Brink  pointed out  that in  Washington state  criminals                 
  have shown a tendency  to be more desperate or  violent when                 
  officers  try  to arrest  offenders.    She referred  to  an                 
  article  in  the  New York  Times,  2/94,  where a  burglary                 
  suspect became violent for fear of receiving a life sentence                 
  under the third offense provision.                                           
                                                                               
  Ms. Brink  suggested resources could  be better spent.   She                 
  observed that the largest population of inmates are 18 to 24                 
  years  of  age.    She  noted  that the  typical  inmate  is                 
  uneducated with no  high school  degree.  One  third of  all                 
  inmates  are  unemployed when  arrested.   Most  inmates are                 
  raised by single  parents.   Most earn an  annual income  of                 
  less  than $10.0  thousand  dollars.   Half  of all  violent                 
  offenders are  under the  influence of drugs  or alcohol  or                 
  both when their offense was committed.                                       
                                                                               
  Representative  Martin asked  if statistics  demonstrating a                 
  decrease of serious crimes are the result of lowering crimes                 
  through  plea  bargaining.   Ms.  Brink  clarified  that the                 
  statistics are not altered by plea bargaining since they are                 
  still classified as violent crimes.                                          
                                                                               
                                6                                              
                                                                               
                                                                               
  BRANT MCGEE,  OFFICE OF  PUBLIC ADVOCACY  testified via  the                 
  teleconference  network  from  Anchorage.    He  echoed  the                 
  remarks of Ms. Brink.  He suggested  that HB 38 would have a                 
  dramatic fiscal impact.   He estimated that each case  would                 
  equal three cases due to the  prior convictions.  He did not                 
  think that the additional 5 lawyers identified in the fiscal                 
  note   would  be  sufficient  to  cover   the  cost  of  the                 
  legislation.   He added  that the Alaska  Court System would                 
  also be dramatically affected.                                               
                                                                               
  Representative   Bunde   responded   that   legislation   in                 
  California and Washington states could not be equated to  HB                 
  38 because of the  narrower scope of  HB 38.  He  emphasized                 
  the deterrent effect  of the legislation.   He asked if  the                 
  present system is working and what will be the cost of doing                 
  nothing.                                                                     
                                                                               
  Representative Navarre asked  if Representative Bunde  would                 
  support   the    financial   cost   of    the   legislation.                 
  Representative Bunde stated that if the costs are documented                 
  he would be willing to pay taxes to support the legislation.                 
                                                                               
  Representative   Brown   compared  categories   of  felonies                 
  contained in  HB 38  and HB 334  with Mr.  Luckhaupt.   They                 
  summarized  that  HB  334,  passed  by  the  House   in  the                 
  Eighteenth Legislature, narrowed the scope of legislation to                 
  only  include crimes against persons.   He explained that HB                 
  38 was drafted  to adopt most  of the amendments adopted  by                 
  the House  for HB  334.   He  further explained  that HB  38                 
  dropped out attempts to commit class A offenses from HB 334.                 
  He stated  that the intent was to include actually committed                 
  class A and committed and attempted unclassified crimes.                     
                                                                               
  Representative Brown  asked if all  the crimes  under AS  11                 
  need to be  included.  Representative Bunde replied  that he                 
  did want to  include promoting prosecution of a person under                 
  the  age  of 16.    Mr.  Luckhaupt pointed  out  that crimes                 
  against persons includes arson of an occupied structure.                     
                                                                               
  Representative Bunde indicated  that he would not  object to                 
  the exclusion of escape or misconduct involving a controlled                 
  substance of the second degree.                                              
                                                                               
  Representative Martin MOVED  to report CSHB 38 (JUD)  out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying fiscal  notes.  Representative  Brown expressed                 
  concern that further discussion was  necessary.  She pointed                 
  out that  the fiscal considerations are extreme.   The total                 
  cost   of   the   first  year's   implementation   would  be                 
  approximately $1.3 million dollars.   She stated she did not                 
  see the benefit which would be derived from the legislation.                 
                                                                               
                                7                                              
                                                                               
                                                                               
  Representative   Grussendorf  spoke   in   support  of   the                 
  legislation.  He expressed his desire that the Department of                 
  Law  use  discretion  in  its  use  of the  provision.    He                 
  emphasized that the legislation is not the only answer.                      
                                                                               
  A roll  call vote was  taken on the  MOTION to move  CSHB 38                 
  from Committee.                                                              
                                                                               
  IN FAVOR: Grussendorf, Kelly,  Kohring, Martin,  Therriault,                 
  Foster,        Hanley                                                        
  OPPOSED:  Brown                                                              
                                                                               
  Representatives Parnell, Mulder and Navarre were absent from                 
  the vote.                                                                    
                                                                               
  The MOTION PASSED (7-1).                                                     
                                                                               
  CSHB 38 (JUD)  was reported out  of Committee with and  with                 
  four  fiscal impact notes;  one by the  Alaska Court System;                 
  one by the  Department of Law; and two by  the Department of                 
  Administration, dated  3/22/95;  and with  two  zero  fiscal                 
  notes; one by the Department of  Corrections; and one by the                 
  Department of Public Safety.                                                 
  ADJOURNMENT                                                                  
                                                                               
  The meeting adjourned at 10:00 a.m.                                          
                                                                               
                                                                               
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