Legislature(1995 - 1996)
04/10/1995 01:18 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CSHB 201 - PRISONER LITIGATION & APPEALS Number 360 CHAIRMAN PORTER announced that they would begin taking public testimony on the committee substitute (CS) for HB 201. JIM MCCOMAS, president of Alaskans Against the Death Penalty, testified via teleconference. He pointed out some ramifications of HB 201 to the committee, in light of the tendency of two bills to reenact capital punishment in Alaska. The bottom line is that the significant substantive reduction of the post conviction relief that this bill would authorize would have disastrous consequences if Alaska ever did reinstate capital punishment. Claiming that capital punishment is not the issue before us now is not an adequate response to this concern. It is not an adequate response because this committee does not know what the outcome is going to be if the bill gets passed, and if we do not have the votes to stop the death penalty next year. We certainly do not have the votes to enact an exception to the legislation that this bill proposes solely for purposes of capital punishment cases. MR. MCCOMAS said there is a tendency, when we look at bills, to look at them in sort of a piecemeal fashion. He did not feel that committee members were looking at the consequences of the interplay between this bill and the reenactment of the death penalty. In this century, there have been at least 1,300 capital convictions set aside, either on appeal or post-conviction relief. The vast majority of those were not on a direct appeal. They almost always occurred later at the federal level. Of course a lot of that has to do with the availability of counsel in the earlier part of the century. MR. MCCOMAS stated the bottom line is that there are many substantial legal issues which can be raised and litigated that are not noticed in the early stages of litigation, which may be missed by the lawyers who are handling the cases. The issue is life or death to a possibly innocent person. We cannot afford that kind of slip in our system. If we look at this specific proposal to curtail post-conviction relief, for example, on page 19, a claim could not be brought for post-conviction relief if it was based on the admission or exclusion of evidence at trial. Many death sentences have been set aside because of errors in the admission or exclusion of evidence at trial that were raised on post-conviction relief. MR. MCCOMAS noted, for example, there is a whole line of cases dealing with the inadmissability of psychiatric witnesses for the state. These cases were undermined by statements obtained from the accused during competency examinations. This applied to many death cases in post-conviction proceedings. The fact that a defense lawyer who tries the case makes mistakes, and an appellate lawyer who writes an appeal does not perceive all of the issues in the case, should not lead to the result that a person is put to death in violation of the Constitution or laws of this state. That is the heart of the objection. From a practical point of view, the time limitation is totally unrealistic. The idea is that within one year of a final appeal you ought to be able to find an attorney and/or file. People call every week trying to find lawyers who will look into ineffectiveness questions concerning their trial counsel. These are cases that have occurred years and years ago. There are many lawyers who refuse to get involved in such cases because they do not want to be found in the position of making charges against members of their own profession. MR. MCCOMAS pointed out that an additional exclusion is that if there has been a previous post-conviction relief application, there cannot be another one. In these cases, people have been convicted wrongfully, and this bill is preventing them from getting relief. Lastly, he pointed out that the theme of this bill is "justice for those who can afford it." REPRESENTATIVE FINKELSTEIN wanted Mr. McComas to understand the problems we have in dealing with things like capital punishment, which is not part of the law now. He was not personally in support of capital punishment but if that were to occur and if there were actual changes in the way we treat these kinds of issues, then prisoner litigation would be a factor at that time. It is very hard for us to pass laws under a number of contingencies. He considers them in the context of what the current laws are. We certainly do not build laws around the death penalty. MR. MCCOMAS understood that, and stated the only point he was trying to make was that he looks at this session as two years, and we know these death bills are going to be out next year. He felt it was valid for the legislature to think about the implications of this right now, because if next year we lack the vote to invoke the death penalty, he did not believe we would have the votes to create an exception to a piece of legislation which had already passed. CHAIRMAN PORTER commented that he did not know who "we" included, when Mr. McComas stated that "We know these death bills are coming next year." He said to take him off the list of "we" because he did not know that those bills were coming up. MR. MCCOMAS answered that is the kind of thing he would love to be proved wrong about. REPRESENTATIVE TOOHEY opposed the death penalty because of the cost of it. She doubted they would see a death penalty bill in the next two or three sessions. Number 575 MARGI MOCK, Supervisor, Appellate Section, Alaska Public Defender Agency, testified via teleconference. She mentioned that appellate defenders do not like filing frivolous cases. The court of appeals has said that she has to brief every issue filed even if she feels it has no merit. She felt this bill was legally flawed and was not going to accomplish the purpose of cutting down on frivolous litigation. It will create more work, and will not cut down on court costs. We all want to cut down on frivolous litigation, but you cannot stop litigants from filing lawsuits. She guessed you could if you changed the Constitution, and you could also cut off the hands of convicted people. This bill significantly changes the way post-conviction releases are handled. Currently, applications for post-conviction releases get filed with the court and then she is appointed to represent the accused. Her current clients, who are inmates, call and request that she represent them, which she is required to do. She normally gets about five of those requests a week. Because she has been doing that for a long time with clients, she is usually able to dissuade them from filing frivolous actions. This particular bill skillfully shifts her initial responsibilities to the courts. Under this bill, there is not going to be an opportunity to try and dissuade an inmate from filing. They have got to be given the opportunity to be heard by someone, but filings are not going to go down, they will go up, because she will lose that opportunity to deal with them first. The judges will have to try to understand the applications, which are written by inmates who are often unsophisticated, uneducated, and sometimes functionally illiterate. That takes time. Once the trial judge understands the application, he/she has to do the research and rule on it. This is more expensive. If you do not believe her, take a look at the federal court which has adopted, essentially, some form of assistance. In the federal court, this work is not done by judges, and state judges are not going to do it either. She would bet there would be a fiscal note asking that a master be hired, like in the federal system, at $100,000, to do the work. It does not cut down on bureaucracy or agency costs. MS. MOCK said there is nothing in this bill that discourages post- conviction relief. The court of appeals has already decided in (indisc.) v. State, which is a case from two years ago, that you get appointed counsel for post-conviction relief. So they are going to get counsel because the court understands what the drafters of this bill cannot seem to grasp no matter how many times you tell them. That is that the appointment of counsel does not encourage frivolous litigation. You actually streamline the process by either discouraging an applicant from filing, or rewording the claim in a form that can be understood and acted on by the court. In fact, this bill has the potential for increasing litigation because the real world experience is that inmates who cannot get appointed counsel simply turn to jailhouse lawyers who do not have any training at all and encourage ridiculous claims with no regard for support of a legal authority or even a reliable (indisc.). MS. MOCK said you are not going to want to hear this, but you have to allow inmates one shot to modify their sentence for any reason, including proof of affirmative rehabilitation. This allowance has to be afforded, because of those who are terminally ill that the Department of Corrections does not have the money to pay for, or for those persons who have demonstrated that they can be trusted in the community. This gives them hope. There is considerably less financial cost to the state in doing this. It would be easier for her to say to an inmate, "Sorry, I cannot help you, but if you wait until you have done X-amount of your sentence and then you give me all of the paperwork to show me what you have done in the jail to rehabilitate yourself," she would simply turn that material into the judge to decide. That, as opposed to hours of drafting post- conviction relief applications, which she is required to do for people who have (indisc.). MS. MOCK felt the bill had a number of provisions that do not make sense and will not get you anywhere if you pass them. Section 09.19.017 requires initial judicial review of the merits of the civil action before the court (indisc.). You can expect an expensive fiscal note from the court on that. It is going to be time consuming and expensive. This initial screening is required by law in those cases in which an individual is unable to pay the filing fee, so the distinction as to what claims undergo initial review is based entirely on whether or not you have had a claim. You do not have to have a law degree to see the problem with that. This bill discriminates against two classes of people; one with money and one without. The law says in order to discriminate, there has to be a connection between the purpose of the litigation and the law, and there is no connection. Lawyers file as many frivolous lawsuits as people without lawyers. All of us know it is not rational to decide that a branch of government is dependent upon the size of a person's pocketbook. MS. MOCK stated that regarding AS 09.19.019, there is another problem. That says if you do not have any money, and you move through the trial court, then the appellate court sends it back to the trial court to decide whether you have merit for appeal. The judges are going to have a large fiscal note on that, because they are going to have to write a decision. In addition, the average person can tell you that there are obvious problems with requiring that poor people not be allowed to appeal until the very judge that has decided the case against them has decided on the merits of the appeal. MS. MOCK referred to her personal favorite, AS 09.19.030 which simply states that courts cannot order legal injunctions. That is not a particularly novel concept. The point is that this bill is "look good" legislation, but it will not stand up to judicial scrutiny. Certain parts do not mean anything, and other parts are just not going to cut down on litigation. She said they have to create a safety valve and this is not going to do it. Number 720 CHAIRMAN PORTER said sometimes we receive unclear, ambiguous testimony, but we never have that problem when talking to Margi. There is a bill dealing with terminally ill inmates, but there is not one regarding limb-severing. REPRESENTATIVE TOOHEY asked how much the filing fee is. LAURIE OTTO, Deputy Attorney General, Criminal Division, Department of Law, stated that she did not support the bill that Jim McComas and Margi Mock were talking about, and she does not believe this bill does the things they were talking about. In answer to Representative Toohey's question, the filing fee for civil cases is $100, and this bill would require indigent prisoners to pay 20 percent of the average monthly balance of their inmate account, over a six month period. If they had an average monthly balance of $5 over a six month period, they would have to pay a $1 filing fee. If they had a $100 balance, they would have to pay a $20 filing fee. MS. OTTO stated there were some pretty important issues raised which need to be discussed. Margi Mock's issue about equal protection and payment of filing fees is exactly right on. It was raised during the last committee hearing, and that problem was fixed in the proposed CS that is before you now. Likewise, the proposed CS addressed Representative Finkelstein's concern about having to show due diligence twice under certain circumstances. We have taken out the language that he was concerned about. MS. OTTO explained that in regards to the testimony given by Mr. McComas, she has a hard time addressing the death penalty because we do not have the death penalty right now, and therefore cannot accommodate it in this legislation even if we wanted to. She personally does not support the death penalty. Based on her experience with juries, it is not equitably applied, and therefore she feels it would be wrong for the state to adopt it, cost or no cost. She knows that the Governor shares that view; however, this bill does not deal with death penalty cases. MS. OTTO described the three components of the bill. One deals with civil cases. Most of the comments you heard from both Mr. McComas and Ms. Mock did not address the civil litigation part of the bill. The next component deals with increasing the time limit that is imposed on people before you can file a sentence appeal. The third component deals with post-conviction relief actions. Just to put this into context, not all of them are familiar with the criminal justice system. There are a whole series of screening mechanisms where cases get weeded out of the system. Cases are referred to the District Attorney (DA)'s office for initial review. The DA then screens them and decides which cases to file. Many cases get washed out at that point. The case then goes to the grand jury who can also wash out cases. The case then goes to the trial court, who also decides whether or not it should proceed. Then if the case goes to trial, the jury reviews it. Then there is a direct appeal in the court of appeals, and potentially the Supreme Court reviews it. Then you can go back and file a post- conviction relief action that starts again in the trial court, then it goes to the appellate court, then to the Supreme Court. What this bill says is that at that point, unless there are exceptional circumstances that are spelled out in the bill, you do not get any more post-conviction relief actions in state court. You can still go to the federal court system, but you cannot continue to litigate and appeal over and over and over again. There has to be finality at some point. Many judges in this state interpret the current rule 35.1(h) that way, which says that you should be filing all of your appeals at one time. We are trying to promote finality in judgment. Since some judges do not interpret it that way, we are trying to promote uniform application of the rules and say unless something extraordinary happens, you only get one second round of appeals, it is not even the first round of appeals. That would not take away rights from people, even if we did have the death penalty. Even if they did have the death penalty imposed on them, they can still challenge their conviction on direct appeal, and they still get to go back to the trial courts and appellate courts, and then if they are not happy they can go to the federal court system where there is extensive death penalty litigation. MS. OTTO disagrees on substantive grounds that it is bad to say that at some point you should not be able to appeal over and over and over and over again, that you have to put your issues together in one appeal. It is appropriate to say that if you are going to file a post-conviction relief action, which again is a second round of appeals to begin with, that you have to do it within two years of the date of the conviction or within one year of the date that your appeal was decided. The problem with extending this, and Mr. McComas is correct, is that there are people with 1979 convictions who are coming in this year and filing motions for post-conviction relief. If they prevail on some kind of technical legal issue that results in their conviction being overturned, where are the state's witnesses? Where are the witnesses who were available during the trial to testify about what occurred and why they were guilty and why they injured the victim? In all of these cases, you have to balance the rights of the defendant against the rights of the victim and the rights of society. We are trying to do that balancing act in a fair way, which would still give people access to the courts, still give them the second round of appeals in post- conviction relief actions, but put some realistic time limits on it, so that if there is a problem, we are then able to re-litigate it. If, in fact, somebody has evidence showing that they were innocent, that would be procedures for hearing it under the provisions of the bill. MS. OTTO mentioned that Mr. McComas said the theme of the bill is "justice for those who can afford it," and that those who cannot afford it live in prison, while those who can afford it, get out of jail. Again, if that is what the bill did, she would not be here supporting it, because that is just repugnant. We should not have a criminal justice system that is designed around giving advantages to people who have money, and taking it away from those who do not. This equal rights issue came up last time we heard the bill and there was not a moment's hesitation in saying, "Yep, you are right. That is wrong. We should change it," and that has been done. She did not feel that analysis applied to the criminal sections of the bill. MS. OTTO mentioned that Marjorie Mock talked about how you have to give people one motion to modify their sentence just so they can let off steam. The purpose of the criminal justice system is not to allow people to let off steam, it is designed to be fair. If people think their sentence was not fair, they can appeal it. If they think it should be modified under this bill within 60 days of the day it was imposed, they can ask to have the court modify it. If they think they are serving time inappropriately after that, they can ask the Governor to grant them executive clemency. There are safety valves in our system. MS. OTTO addressed an issue brought up in a letter asserting that the bill will have a particularly adverse affect on Native Alaskans. Ms. Otto spent six years as both district attorney and a private practitioner in Bethel. She spent a lot of her time in public service, trying to make things better for rural Alaska. They have channelled resources towards rural areas in order to improve the law to Natives, who have in many instances been on the short end of the stick in regards to the criminal justice system. She is very sensitive to those particular issues. This bill does not have an affect on Native Alaskans anymore than on non-Natives. TAPE 95-43, SIDE B Number 000 MS. OTTO said it would affect non-Natives more so, because there has not been a single non-English speaking Native Alaskan who has filed a civil suit against the state. Whether it is because Natives are not disciplinary problems in the jail, which is true, or whether the culture is not as litigious as that of Western society. It is just not an issue. It is an emotional issue, but not born out in fact. Number 150 There was a brief discussion about who can and who cannot, and under what particular circumstances a public defender can be appointed. The circumstances under which a public defender can be appointed are in AS 18.85.100. Number 220 MR. MCCOMAS argued that according to this bill, if you have had your direct appeal, and you had the "second bite of the apple," that is, you filed the petition in the superior court, and you have received a ruling from the judge finding that you are not being held in violation of the laws or the Constitution of the State of Alaska; if you can afford it, you can have counsel for your appeal. If you are indigent, under this bill, you have to do that appeal yourself. What this really means is that it does not get done. To make it fair for everybody, you should modify this legislation to say there are no appeals allowed. MS. OTTO asked if Mr. McComas was talking about section (c)(2), rather than (c)(1). MR. MCCOMAS said he was talking about (c)(2). MS. OTTO felt he was making a good point and it may be good to leave that section out. MR. MCCOMAS said there is another good point he would like to make. Motions to reduce sentences under this legislation are gone. Rule 35 (a) does not exist under this legislation. He felt it would be worthwhile to solicit the views of the Department of Corrections on this. MS. OTTO stated that they have taken out the provision that allows a sentence to be modified at any time if the circumstances have changed. They combined what is currently in 35 (a) with 35 (b). This bill is intended to allow people to make a motion to reduce their sentence for any reason within the 60-day period. REPRESENTATIVE TOOHEY made a motion to adopt CSHB 201(JUD), Version G, dated 4/5/95 as a work draft. Hearing no objection, the CS was adopted. CHAIRMAN PORTER entertained a motion to amend the bill by removing lines 10 and 11, calling it Amendment No. 1. REPRESENTATIVE FINKELSTEIN made a motion to move Amendment No. 1. Hearing no objection, it was so ordered. CHAIRMAN PORTER stated there was another amendment offered, Amendment No. 2: Page 4, line 31, following "means": Delete "an" Insert "a civil" Page 5, line 7: Delete "the" Insert "a" Page 8, line 23: Delete "new" Delete "in law" REPRESENTATIVE TOOHEY made a motion to move Amendment No. 2. Hearing no objection, it was so ordered. REPRESENTATIVE TOOHEY made a motion to move CSHB 201 (JUD) as amended out of committee with individual recommendations and fiscal notes as attached. Hearing no objection, it was so ordered.