Legislature(1995 - 1996)

04/10/1995 01:18 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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             
 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            
 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            
 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            
 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               
 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            
 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           
 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            
 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.                  

Document Name Date/Time Subjects