Legislature(2017 - 2018)GRUENBERG 120

01/23/2017 01:00 PM JUDICIARY

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Audio Topic
01:32:19 PM Start
01:33:05 PM HB42
02:58:41 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 1:30 today --
*+ HB 42 FORFEITURE & SEIZURE: PROCEDURE; LIMITS TELECONFERENCED
Heard & Held
         HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS                                                                      
                                                                                                                                
1:33:05 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE  BILL NO.  42, "An  Act  relating to  seizure of  property;                                                               
relating to  forfeiture to the  state; relating to  criminal law;                                                               
amending Rules  3, 4, 11, 12,  16, 32, 32.2, 32.3,  39, 39.1, and                                                               
42, Alaska Rules of Criminal  Procedure, Rules 501, 801, and 803,                                                               
Alaska Rules  of Evidence,  and Rules 202,  209, and  217, Alaska                                                               
Rules  of Appellate  Procedure;  and providing  for an  effective                                                               
date."                                                                                                                          
                                                                                                                                
CHAIR  CLAMAN advised  that last  year, as  part of  the Criminal                                                               
Justice  Reform efforts,  AS 09.55.700  specifically stated  that                                                               
common law civil in rem  forfeiture actions are abolished if used                                                               
instead  of  a   criminal  proceeding.    He   pointed  out  that                                                               
Representative   Wilson's  HB   42  is   a  follow   up  on   the                                                               
legislature's actions taken last year.                                                                                          
                                                                                                                                
1:34:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WILSON,   Alaska  State  Legislature,   read  the                                                               
sponsor statement as follows: [original punctuation provided]                                                                   
                                                                                                                                
     Modern civil forfeiture laws hold  that property can be                                                                    
     guilty of  a crime  and; therefore,  may be  seized and                                                                    
     forfeited  even if  the  property's  owner never  faces                                                                    
     criminal charges.   For  two centuries,  American Civil                                                                    
     Forfeiture  Law  was  largely  restrained  to  custom's                                                                    
     enforcement.   In  the 1980s,  Congress and  the states                                                                    
     turned  to  civil  forfeiture to  combat  rampant  drug                                                                    
     distribution  and organized  crime.   Civil  forfeiture                                                                    
     became a  mainstream law enforcement tool  and Congress                                                                    
     and  the  states encouraged  its  use  by allowing  law                                                                    
     enforcement  agencies  to  retain  the  proceedings  of                                                                    
     successful  property  forfeitures.    Once  authorities                                                                    
     seized   private   property,    the   resulting   civil                                                                    
     proceeding  differs  dramatically  from  the  customary                                                                    
     standards of American criminal law.                                                                                        
                                                                                                                                
     First,  the  proceedings  target the  property,  rather                                                                    
     than the  owner.  Under  forfeiture law at  the federal                                                                    
     level,   and  in   Alaska,  the   evidentiary  standard                                                                    
     required  a  preponderance  of the  evidence,  not  the                                                                    
     criminal  law standard  of beyond  a reasonable  doubt.                                                                    
     Thus,  prosecutors needed  proof only  that it  is more                                                                    
     likely than not that the  property is tied to crime and                                                                    
     is, thus, forfeitable.                                                                                                     
                                                                                                                                
     Second, the  prosecution need not  prove that  an owner                                                                    
     used the  property to commit  a crime or  was willfully                                                                    
     blind to its use.  As  in the case in ordinary criminal                                                                    
     trials in a forfeiture  proceeding, the burden falls on                                                                    
     the  owner to  disprove  these  facts by  demonstrating                                                                    
     that  he  neither  knew  of,   nor  consented  to,  the                                                                    
     properties illicit use.                                                                                                    
                                                                                                                                
     Third,  property  owners  in forfeiture  cases,  unlike                                                                    
     defendants in criminal cases,  have no guaranteed right                                                                    
     to counsel.   Consequently,  if an owner  cannot afford                                                                    
     an attorney  he must navigate an  excessively, lengthy,                                                                    
     and  complex legal  landscape alone.   Oftentimes,  the                                                                    
     cost  of  hiring a  lawyer  exceeds  the value  of  the                                                                    
     seized property or currency.   Hence, a large number of                                                                    
     defendants opt  not to retain counsel  even though they                                                                    
     can afford the expense.   With such low odds of victory                                                                    
     in  forfeiture  cases,  many innocent  property  owners                                                                    
     simply walk away.                                                                                                          
                                                                                                                                
1:36:11 PM                                                                                                                    
                                                                                                                                
     House  Bill  42 would  require  that  an individual  be                                                                    
     convicted   of  an   actual  crime   before  forfeiture                                                                    
     proceedings   can  take   place,   and  would   protect                                                                    
     guiltless  spouses  and  family members  from  property                                                                    
     loss as  a result of  the process. The bill  would also                                                                    
     impose transparency and  accountability for civil asset                                                                    
     seizures and  reduce financial incentives for  abuse by                                                                    
     providing that  any revenues that  do flow back  to the                                                                    
     state,  as a  result  of  federalized proceedings,  are                                                                    
     deposited in the general fund.                                                                                             
                                                                                                                                
     This  bill   affirms  our   confidence  in   local  law                                                                    
     enforcement,  as  well  as the  most  basic  tenets  of                                                                    
     constitutional  law and  values.   Convicted  criminals                                                                    
     will still  see the fruits of  their crimes confiscated                                                                    
     by  the  state, but  innocent  Alaskans  can rest  easy                                                                    
     knowing  they will  no longer  be deprived  of property                                                                    
     without due process.                                                                                                       
                                                                                                                                
1:36:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  related that  HB 42  is about  due process                                                               
for  those  individuals not  involved  in  a  crime.   She  said,                                                               
contained with the member's packets  are diagrams titled "Current                                                               
Law,"  and she  described how  to  navigate the  chart, and  also                                                               
noted there  are two different  processes for "arrest"  and "non-                                                               
arrest."    She  continued  that   HB  42  attempts  to  put  all                                                               
forfeiture laws in one place within the Alaska Statutes.                                                                        
                                                                                                                                
CHAIR CLAMAN posed a question  to attorney Peter Sandberg, noting                                                               
the law change  approved last year, asked what the  bill does and                                                               
how it is different from last year's bill.                                                                                      
                                                                                                                                
1:39:28 PM                                                                                                                    
                                                                                                                                
PETER SANDBERG,  Attorney, Garvey,  Schubert, Barer, said  he had                                                               
provided technical legal consultation  to Frank Bickford in terms                                                               
of making  certain the statute was  workable.  He pointed  to the                                                               
first entry on  the flowchart "Current State  Law," and clarified                                                               
that the first entry should  be AS 16.05.723, Misdemeanor fishing                                                               
violations.  He  explained that in the event  a fisherman commits                                                               
a violation,  the state can seize  items up to and  including the                                                               
vessel  for  a  misdemeanor.    He  further  explained  that  the                                                               
abolishment statute  from last  year did  not erase  anything off                                                               
the books, it  simply read that it was abolished.   When a person                                                               
is accused  of negligently taking fish  illegally, vessels, fish,                                                               
and tackle are forfeited unless  the defendant can prove the fish                                                               
were lawfully taken.  He said  he is unaware whether the state is                                                               
still taking  vessels under  that statute,  but as  things stand,                                                               
currently there is  no other prescribed method.   He offered that                                                               
it  does  not fit  within  what  is  normally thought  about  how                                                               
criminal  defendants are  punished,  in particular,  misdemeants.                                                               
Mr. Sandberg  continued that the  items on  the far left  side of                                                               
the  flowchart are  current statutes,  and commented  that it  is                                                               
confusing even  for a  lawyer in  terms of how  this is  going to                                                               
work.                                                                                                                           
                                                                                                                                
1:42:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  referred to AS 16.05.723,  and posited the                                                               
amount  of the  fine and/or  penalty  for a  person convicted  of                                                               
negligently taking fish illegally.                                                                                              
                                                                                                                                
MR. SANDBERG  answered that  under AS 16.05.723  the fine  is not                                                               
more than  $15,000, but the court  can force a person  to forfeit                                                               
any vessel,  fishing gear, tackle,  or any other  device employed                                                               
to take the fish commercially.                                                                                                  
                                                                                                                                
1:43:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX surmised  that if a person  is convicted of                                                               
the  misdemeanor  the highest  fine  would  be $15,000  and  yet,                                                               
conceivably,  the person  could lose  their fishing  vessel which                                                               
could be valued  upwards of $500,000 for something  the state has                                                               
said is a misdemeanor of $15,000.                                                                                               
                                                                                                                                
MR.  SANDBERG agreed,  and  he related  that  the same  principle                                                               
applies to hunting  guides, and various other  statutes, in which                                                               
a  person could  negligently "screw  up and  lose million  dollar                                                               
airplanes."   With regard to the  new statute, he opined  that no                                                               
one is arguing the state  shouldn't be able to obtain forfeiture,                                                               
and that  is not what  the statute is designed  to do.   The idea                                                               
behind the new  law is to create a single  source in which people                                                               
can  determine  how  this  will  apply to  them,  and  provide  a                                                               
prescribed procedure by  which they are protected  if their items                                                               
should not be forfeited.  Although,  he said, if the items should                                                               
be forfeited,  the state can  still obtain the items,  "they just                                                               
have to work a little harder."                                                                                                  
                                                                                                                                
1:45:15 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  noted that the chart  references negligently taking                                                               
fish, and  asked whether the  standard is criminal  negligence or                                                               
negligence.                                                                                                                     
                                                                                                                                
MR. SANDBERG  opined that it  would probably have to  be criminal                                                               
negligence because it's a misdemeanor.                                                                                          
                                                                                                                                
1:45:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  noted that  Mr. Sandberg said  he provided                                                               
Victor Bickford  with technical legal  advice on  these statutes.                                                               
She pointed  out that Mr.  Bickford is  a lobbyist and  asked the                                                               
name of Mr. Bickford's client.                                                                                                  
                                                                                                                                
MR. SANDFORD replied the client is Drug Policy Alliance.                                                                        
                                                                                                                                
CHAIR  CLAMAN asked  whether it  wasn't the  Resident Hunters  of                                                               
Alaska.                                                                                                                         
                                                                                                                                
MR. SANDBERG opined that Resident  Hunters of Alaska are in favor                                                               
of this legislation.   He explained that Kevin  Fitzgerald and he                                                               
became involved because many of  Mr. Fitzgerald's hunting clients                                                               
have lost large  items through various violations.   Mr. Sandberg                                                               
continued that  the proposed statutory  framework is  designed to                                                               
simply have  a hearing after  the conviction.  He  explained that                                                               
he  tried to  model  it  off of  punitive  damages  in the  civil                                                               
context,  whereby there  is  a short  hearing  quickly after  the                                                               
conviction.   Hopefully, he related,  the defendant has  the same                                                               
lawyer and  it is a  matter of ascertaining whether  the property                                                               
is  actually  tied to  the  crime  so  people cannot  lose  their                                                               
property outside of  a criminal conviction.  The intent  of HB 42                                                               
is to put  all forfeiture statutes in one place  with one process                                                               
that protects Alaskans while they  stand to lose large amounts of                                                               
money for rather small violations, he explained.                                                                                
                                                                                                                                
1:49:05 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  referred to drug  cases wherein drugs and  cash are                                                               
seized, and  asked whether under  HB 42  the state would  need to                                                               
have a  separate proceeding to  seize the  cash or, if  the state                                                               
gets a  conviction would it be  able to have a  forfeiture of the                                                               
seized cash in the same hearing.                                                                                                
                                                                                                                                
MR. SANDBERG opined  that the cash is simply  regarded as another                                                               
form of property under the statute.                                                                                             
                                                                                                                                
CHAIR CLAMAN followed  up and asked whether the  state would have                                                               
to institute  a second proceeding,  or whether it could  be dealt                                                               
with in the criminal proceeding.                                                                                                
                                                                                                                                
MR.  SANDBERG  answered that  the  cash  would  be part  of  that                                                               
subsequent one-day  proceeding if  the state  wanted to  keep it,                                                               
and  it is  not a  problem  if the  state  wants to  seize it  as                                                               
evidence.   At that point, this  allows people to attempt  to get                                                               
some of the  cash back to pay  for their legal defense  fees.  He                                                               
continued that if the state wants  to keep the cash, it must show                                                               
that the  cash is  reasonably tied  to the  crime from  which the                                                               
person is convicted.                                                                                                            
                                                                                                                                
CHAIR CLAMAN surmised that under  this legislation, the state, in                                                               
addition to the criminal conviction  process would need to file a                                                               
separate proceeding  to forfeit  the $25,000  cash found  next to                                                               
the cocaine.                                                                                                                    
                                                                                                                                
1:51:11 PM                                                                                                                    
                                                                                                                                
MR. SANDBERG  clarified that the state  would not have to  file a                                                               
separate  proceeding  in that  sense,  and  explained that  after                                                               
seizing the cash the state would  have to give the person warning                                                               
that it believes the cash is  proceeds of an illegal activity for                                                               
which forfeiture is possible.   He explained the state would hold                                                               
the cash  until after the  trial and  if the person  is convicted                                                               
there  would  be a  hearing  immediately  afterwards.   At  which                                                               
point, if  the state showed that  the money was actually  tied to                                                               
the crime,  as opposed to  being an inheritance or  whatever, the                                                               
state would be allowed to keep the money.                                                                                       
                                                                                                                                
1:52:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE REINBOLD pointed to  the Constitution of the State                                                               
of  Alaska, [Article  I], Sections  7,  and 14,  due process  and                                                               
search and seizures,  respectively, and asked whether  HB 42 will                                                               
handicap Alaska's  law enforcement, especially having  to do with                                                               
drugs, and whether law enforcement has weighed in.                                                                              
                                                                                                                                
MR. SANDBERG replied, as follows:                                                                                               
                                                                                                                                
     What  we  certainly  don't  think  this  will  handicap                                                                    
     either police  officers, or  prosecutors in  being able                                                                    
     to  get these  items.   I suppose  it's possible  that,                                                                    
     probable, that they will tell  you something else.  The                                                                    
     objections  that I've  seen so  far, at  least I  don't                                                                    
     think are consistent  with how they, in  the past, have                                                                    
     said they  actually operate.   And one  of the  kind of                                                                    
     disturbing things  that we've seen  so far is  they are                                                                    
     still  defending the  use of  civil  in rem  forfeiture                                                                    
     while, you  know, it  was abolished last  year.   So, I                                                                    
     don't want to  put words in their mouth for  you.  But,                                                                    
     I assume that they won't like this change.                                                                                 
                                                                                                                                
MR. SANDBERG advised that the point  of the change is not whether                                                               
or not it will  make it harder for the police  to take items from                                                               
people, but rather to provide  a workable system that any Alaskan                                                               
can review and  determine what they need  to do and how  to do it                                                               
if they believe their property was improperly taken.                                                                            
                                                                                                                                
1:54:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD emphasized  that she  wants to  know the                                                               
opinions of  drug enforcement and law  enforcement because Alaska                                                               
has a  massive heroin and  opioid problem  and, yet a  portion of                                                               
the  bill makes  it  harder  to confiscate  and  prosecute.   She                                                               
advised  she does  support  the streamlining  of  policy for  the                                                               
benefit  of Alaskans,  but she  does not  want one  more loophole                                                               
with regard to Alaska's serious drug issues.                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  responded to Representative  Reinbold that                                                               
the legislation  is about the  person who wasn't involved  in the                                                               
crime.  She  used the example of a roommate  borrowing her car to                                                               
go to the  store, and instead robs a liquor  store using her car,                                                               
is arrested,  and items  are seized  because it  was all  part of                                                               
robbing the  liquor store.  Representative  Wilson explained that                                                               
under  current  law,  she  must  be able  to  prove  she  had  no                                                               
knowledge that  her roommate  intended to  rob the  liquor store.                                                               
This legislation puts  it back onto law enforcement  to show that                                                               
she was aware  [her roommate was using her car  to rob the liquor                                                               
store].   The legislation  offers a process  to get  her property                                                               
back, without a lengthy proceeding  and hiring an attorney, if it                                                               
cannot be proven she had anything to do with the robbery.                                                                       
                                                                                                                                
CHAIR CLAMAN advised that individuals  from the Department of Law                                                               
(DOL), and the Alaska State Troopers are available to testify.                                                                  
                                                                                                                                
REPRESENTATIVE  REINBOLD  indicated   that  she  understands  the                                                               
rhetorical question,  and pointed  out there is  active organized                                                               
crime in Alaska.                                                                                                                
                                                                                                                                
1:57:46 PM                                                                                                                    
                                                                                                                                
JOHN  SKIDMORE,   Director,  Legal  Services   Section,  Criminal                                                               
Division,  Department  of Law  (DOL),  said  he is  available  to                                                               
answer questions.                                                                                                               
                                                                                                                                
CHAIR CLAMAN requested  a brief perspective of DOL's  view on the                                                               
bill.                                                                                                                           
                                                                                                                                
MR.   SKIDMORE  advised   that  DOL   supports  the   concept  of                                                               
consolidation of  forfeiture statutes.   Although,  he explained,                                                               
there are  issues with  the drafting of  other provisions  in the                                                               
bill.  He  advised he met with Representative  Wilson and intends                                                               
to  continue working  with  her  to address  concerns.   He  then                                                               
referred to the  chart titled "Current State Law"  and noted that                                                               
AS 16.05.732 reads  that there is seizure and  no requirement for                                                               
a conviction, but  that fails to reference  the statute requiring                                                               
a  conviction   before  forfeiture   can  occur,   AS  16.05.190,                                                               
Disposition  of equipment.   He  referred to  a portion  half way                                                               
through AS 16.05.190,  and he read: "'Upon the  conviction of the                                                               
offender,'  that's   when  you   get  to  actually   forfeit  the                                                               
property."  The  requirement of the conviction,  he explained, is                                                               
something that  DOL believes is  found for most of  the statutes.                                                               
He  said he  just  received  the chart  and  could  not speak  to                                                               
whether there  were additional omissions  or inaccuracies  in the                                                               
chart, but from the  Criminal Division's perspective, convictions                                                               
should  be obtained  before  property should  be  forfeited in  a                                                               
criminal case.                                                                                                                  
                                                                                                                                
2:00:13 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE  explained that  due to concerns  this bill  has the                                                               
potential  to  impact  forfeitures   in  civil  proceedings,  Mr.                                                               
Sullivan is  available to testify.   He offered the example  of a                                                               
"flop house or an abandoned boat,"  and noted that the state must                                                               
actually take possession  of the boat to remove it  as a nuisance                                                               
because it impedes navigation or  traffic on the waterways.  This                                                               
is not  a criminal case, it  is a separate civil  proceeding and,                                                               
he opined, people do not want to influence that.                                                                                
                                                                                                                                
MR. SKIDMORE  related that while  the bill  discusses forfeiture,                                                               
the criminal  division has  concerns it  could be  interpreted to                                                               
not only impact  forfeiture proceedings, but also  seizures.  Mr.                                                               
Skidmore continued as follows:                                                                                                  
                                                                                                                                
     A quick  example is the  notion that  individuals would                                                                    
     be able  to get their  property back before  a criminal                                                                    
     trial occurred,  even if that property  was evidence in                                                                    
     the case.                                                                                                                  
                                                                                                                                
     Also,  that  the  property  could  be  returned  to  an                                                                    
     individual  to use  to pay  for a  defense attorney  if                                                                    
     they said no other means  was necessary to pay for that                                                                    
     defense attorney.   And yet,  in getting  that property                                                                    
     back ... so if I'm the  drug dealer, to use the example                                                                    
     that Chair  Claman used, if  I'm the drug dealer  and I                                                                    
     have  that cash,  I  get to  say,  'Hey, that  $25,000,                                                                    
     that's mine, I need that  back to pay for my attorney.'                                                                    
     But,  then when  it  comes time  to  trial, you're  not                                                                    
     allowed  to use  that statement,  that the  drug dealer                                                                    
     said that $25,000 was mine.   The drug dealer, in fact,                                                                    
     gets  to go  into trial  and  say 'I  don't know  whose                                                                    
     money  that is.   I  don't know  anything about  that.'                                                                    
     And  the state  is not  allowed to  use the  statements                                                                    
     made  in getting  the property  returned  to say  'Hey,                                                                    
     wait a minute, that's not what you previously said.'                                                                       
                                                                                                                                
     So, those are  the sorts of issues that  I really don't                                                                    
     think are  the intention  of Representative Wilson.   I                                                                    
     don't think those  are the things that  she's trying to                                                                    
     go  after, but  those are  the sorts  of things  in the                                                                    
     bill that we're  interested in working with  her to try                                                                    
     and correct.                                                                                                               
                                                                                                                                
2:02:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP noted  that the  2014 legislature  passed AS                                                               
12.36.070, Return  of property  by hearing.   He related  that it                                                               
addresses  a  real  ongoing  problem  wherein  innocent  people's                                                               
property is seized,  taken as evidence as a result  of a criminal                                                               
act, and they need their  property back to continue running their                                                               
business.   He  continued, there  was no  avenue in  the law  for                                                               
innocent  people  to   request  a  hearing  with   a  judge  with                                                               
jurisdiction in  the criminal  case to make  a ruling  and decide                                                               
whether  the  prosecution  needed  it,  or  whether  the  state's                                                               
interest  was overriding  that of  the property  owner to  get it                                                               
back.  The legislation unanimously  passed the legislature, there                                                               
has not been  any significant fiscal impact, and  people now have                                                               
a right  in the law  to request  their seized property  back when                                                               
they are not the criminal defendant themselves, he pointed out.                                                                 
                                                                                                                                
REPRESENTATIVE  KOPP   reminded  the  committee  that   there  is                                                               
currently  an avenue  in  the law  for some  of  the cases  being                                                               
discussed and  there has not been  a meltdown of the  system.  He                                                               
related  that many  of the  police  officers he  has spoken  with                                                               
about  this  subject  advised  they  would  like  to  return  the                                                               
property, but  a party had  objected.  Alaska  Statute 12.36.070,                                                               
requires the person objecting [to  the return of the property] to                                                               
state the reason on the record, he advised.                                                                                     
                                                                                                                                
REPRESENTATIVE KOPP asked whether there  has been a burden on the                                                               
DOL in having a  process in the law for the  return of a person's                                                               
property when they are not the defendant.                                                                                       
                                                                                                                                
2:05:31 PM                                                                                                                    
                                                                                                                                
MR. SKIDMORE responded that the  option to have property returned                                                               
exists  in criminal  law, without  HB 42  being there.   Criminal                                                               
Rule 37(c) reads  that there is the possibility of  a hearing and                                                               
having  property returned.   There  is also  case law  discussing                                                               
forfeiture situations where  an item is seized and  perhaps it is                                                               
something the person needs to  conduct their living, for example,                                                               
a fishing vessel.  He continued,  case law reads that a fisherman                                                               
is entitled  to a  hearing to  advise [the  court] they  need the                                                               
boat to conduct  their business and, he  commented, such hearings                                                               
have  occurred and  do occur.   Those  hearings do  not create  a                                                               
burden on the DOL, and certainly  no more burden than what should                                                               
be  there   to  be  certain   people's  property   interests  are                                                               
appropriately protected, he said.                                                                                               
                                                                                                                                
MR.  SKIDMORE  pointed out  that  HB  42  does more  than  simply                                                               
provide  the opportunity  for  a hearing  allowing  the court  to                                                               
address  the   issue,  such  that  the   department's  additional                                                               
concerns led to  the fiscal note.  He offered  that he is hopeful                                                               
that in  working with Representative  Wilson the fiscal  note can                                                               
be substantially reduced.                                                                                                       
                                                                                                                                
REPRESENTAIVE KOPP commented that the  bill sponsor is getting at                                                               
one of  the most fundamental liberties  Alaskans have, protection                                                               
of property.                                                                                                                    
                                                                                                                                
2:07:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  expressed  difficulty  in  accepting  the                                                               
concept of a  crime with a possible $5,000 penalty  and the state                                                               
can take someone's $500,000 vessel,  or other piece of equipment.                                                               
She asked  whether it would  make more sense  to have a  law that                                                               
reads that the penalty is anywhere  from "X to XX", whatever is a                                                               
reasonable  penalty for  a violation.   She  used the  example of                                                               
person A  murdering person B  in a home,  the home may  be seized                                                               
because it belongs  to person A.  But, she  asked, what if person                                                               
A also had a  home down the street that had nothing  to do with a                                                               
crime,  the state  would not  be able  to seize  that home.   She                                                               
suggested looking at what is  a reasonable penalty for any crime,                                                               
and if  it is something  the legislature  decides is worthy  of a                                                               
fine  of  between  "zero  and  $5,000,"  what's  the  purpose  of                                                               
allowing the seizure of the fishing vessel, she asked.                                                                          
                                                                                                                                
MR. SKIDMORE said  a fishing vessel used to  catch fish illegally                                                               
is the  instrumentality by which the  crime is committed.   As to                                                               
whether or  not there  is an excessiveness  to the  forfeiture of                                                               
the vessel given  the maximum penalty, he said there  is case law                                                               
supporting Representative  LeDoux's concept.   He related  that a                                                               
motor vehicle was seized and the  question was whether or not the                                                               
value of the vehicle exceeded the  amount of fine that could have                                                               
been imposed.   In that case,  the court found that  the fine was                                                               
greater than  the value of  the motor vehicle and;  therefore, it                                                               
did not  violate the constitution.   In  the event it  did exceed                                                               
that amount, it  would be an interesting question  for the courts                                                               
to determine.  Mr. Skidmore related  that there are many cases in                                                               
which  the instrumentality  used  has something  unique about  it                                                               
which allows further  illegal acts to be conducted.   He referred                                                               
to  a  case  wherein  a  fishing  vessel  had  been  specifically                                                               
modified to  hide illegally  taken fish and  in that  case simply                                                               
fining the owner of the vessel  would not stop the fisherman from                                                               
committing future violations.   He explained that  the concept is                                                               
that if  there is something  about the vessel  that significantly                                                               
allows  the  individual  to  continue  to  commit  those  crimes,                                                               
forfeiture has to occur in order  to stop it from happening again                                                               
in  the future.   He  said he  agrees with  Representative LeDoux                                                               
that forfeiture needs to be used,  not as a first resort, but the                                                               
last resort.   Other steps  can be  taken and should  be pursued,                                                               
which is what DOL  does in the vast majority of  the time and, he                                                               
acknowledged  occasionally a  prosecutor has  done something  not                                                               
quite along the lines of DOL and Mr. Skidmore has dealt with it.                                                                
                                                                                                                                
2:12:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX offered  an example of a gambling  den in a                                                               
house  and said  if premises  A is  running a  gambling den,  the                                                               
house  could be  seized.   But,  if they  also  own something  in                                                               
Minnesota  where  they  were  not  running  a  gambling  den,  it                                                               
couldn't  be seized.    She  reiterated that  there  should be  a                                                               
statute that  reads if a  person is doing  "X" they can  be fined                                                               
anywhere to "A to Z."  In the  event the judge fines them "Z" and                                                               
they don't have enough money to  pay the fine, then just like any                                                               
other  case where  there is  a judgement  and the  person doesn't                                                               
have the money, property can be seized.                                                                                         
                                                                                                                                
MR.  SKIDMORE answered  that usually  the state  could not  seize                                                               
property  B if  the gambling  den was  at property  A because  it                                                               
would have to  be related to the gambling offense.   The only way                                                               
law enforcement  would be able  to get to  property B is  if they                                                               
actually had  evidence to show  that all  of the benefits  of the                                                               
illegal  gambling allowed  that person  to buy  property B,  such                                                               
that property B would not  have been available to that individual                                                               
but for their illegal activity.   The requirement for prosecution                                                               
is to  show the connection  between the two,  and he said  he was                                                               
unsure the state  could seize the other  property without showing                                                               
that connection.  He related that  he was certain the state would                                                               
not be able to forfeit the property without the connection.                                                                     
                                                                                                                                
2:14:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX expressed  that that is her  point, if they                                                               
did  something really  bad  and  the state  wanted  to forfeit  a                                                               
property,  why not  just  put that  in the  statute  of what  the                                                               
penalty is going to  be.  The penalty can be  anywhere from "A to                                                               
Z" and if they can't pay it,  then they are subject to having all                                                               
of their  properties seized.  She  asked why make it  so that the                                                               
gambling den in  a nice home is  seized by the state,  but yet if                                                               
the gambling  den is in a  little shack, the state  only gets the                                                               
little shack seized.                                                                                                            
                                                                                                                                
MR. SKIDMORE  related that  is a policy  call if  the legislature                                                               
wants to simply have fines and  not have forfeiture.  However, in                                                               
trying to think of all of  the possible fact scenarios that might                                                               
come  up, coming  up  with  an appropriate  range  and trying  to                                                               
describe how it might be used  could be difficult.  During his 18                                                               
years as a prosecutor, there have  been a vast array of cases and                                                               
fact patterns, and  it is hard to anticipate what  each and every                                                               
one of them will  be, he said.  He opined  that forfeiture can be                                                               
a tool to  say, "Look, we don't know exactly  where it's going to                                                               
be, but  if we  require it  to be  reasonably related,  then that                                                               
allows itself  to adjust to  the circumstances that  a particular                                                               
case presents."                                                                                                                 
                                                                                                                                
2:16:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  requested the thought process  of how the                                                               
department  makes  decisions  on  what  property  to  pursue  for                                                               
forfeiture,  and  asked  whether  there  is  a  policy  call  the                                                               
department  makes on  whether or  not  to leave  property on  the                                                               
table.   For example,  a person  may be out  fishing all  day and                                                               
have a  full boat of legally  caught fish and then  the fisherman                                                               
tries to go  after a different fish illegally.   He asked whether                                                               
the  department  tries  to  distinguish  between  the  last  fish                                                               
obtained illegally.                                                                                                             
                                                                                                                                
MR. SKIDMORE  advised there is  a policy and  also case law.   He                                                               
referred to  a case,  cited in  the case  notes in  the statutes,                                                               
that discusses  fish and only those  fish of which the  person is                                                               
convicted of  taking illegally can  be forfeited.  He  then moved                                                               
to the example of [forfeiting]  a fishing vessel and advised that                                                               
the facts would  be reviewed on a case-by-case basis.   Using the                                                               
above  scenario,  in  the  taking  of  a  small  number  of  fish                                                               
illegally, the state  would not seize the vessel.   Although, the                                                               
fact pattern  changes if the  fisherman has a history  [of taking                                                               
fish illegally], he said.                                                                                                       
                                                                                                                                
2:19:28 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  asked,  in   the  event  the  department                                                               
identifies property  that can be  forfeited, does  the department                                                               
make  a judgment  call on  whether or  not it  should based  upon                                                               
moral reasoning  or a desire  to appropriately render  a punitive                                                               
result  to  someone  guilty  of   a  crime.    For  example,  the                                                               
department  identified that  a  law was  violated  and there  was                                                               
clear  justification  to  forfeit  $100  of  property,  he  asked                                                               
whether the  department views  its role as  pursing $100  for the                                                               
sake of  the state,  or distinguishes some  lesser amount  in the                                                               
situations because the department  believes that may be excessive                                                               
even though the department could legally go after the $100.                                                                     
                                                                                                                                
MR. SKIDMORE  answered yes.   Prosecutors throughout  the history                                                               
of the  United States have been  given discretion to look  at the                                                               
circumstances and  make judgment  calls, and prosecutors  do that                                                               
every day.   The only  time in  which the department  wouldn't be                                                               
making  a  judgment call  would  be  a  situation where  the  law                                                               
requires the  department to forfeit an  item.  For example,  in a                                                               
domestic violence  case, in the  event someone is injured  by the                                                               
use  of  a  dangerous  instrument,   current  law  requires  that                                                               
instrument to be forfeited, which  would be repealed under HB 42,                                                               
he explained.  In the realm  of fishing cases, oftentimes a great                                                               
deal of discretion is used, he said.                                                                                            
                                                                                                                                
2:21:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FANSLER referred to  the discretion discussion and                                                               
said he  wanted to draw  a definitive line between  large fishing                                                               
vessels worth  $500,000 and the  lower valued fishing  vessels in                                                               
his area.   He continued that  he is an advocate  and appreciates                                                               
the Department  of Law  (DOL) continuing to  use discretion.   He                                                               
then asked  that Mr.  Skidmore drive the  point home  to Alaska's                                                               
rural prosecutors to  use that discretion when  seizing boats and                                                               
nets that families depend upon for their livelihood.                                                                            
                                                                                                                                
2:22:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  expressed concern  and offered  a scenario                                                               
wherein  a case  is not  quite  a "slam  dunk" but  there is  the                                                               
possibility of seizing an item  valued more than the fine someone                                                               
may  incur from  pleading guilty.   She  asked whether  the state                                                               
would ever offer a deal to  the defendant that the item would not                                                               
be seized if the defendant pleads.                                                                                              
                                                                                                                                
MR.  SKIDMORE  surmised  that Representative  LeDoux  was  asking                                                               
whether  the department  sometimes offers  to forego  seizure and                                                               
seeking forfeiture of  an item in exchange for a  person to plead                                                               
guilty.  He advised  that he knows of no case  in which anyone in                                                               
the department  engaged in  a negotiation in  which they  say the                                                               
state  will forgo  seizure.   Although, he  said he  is aware  of                                                               
cases in which  an item may have  been seized and as  part of the                                                               
resolution  of a  case  the  department agrees  to  have an  item                                                               
returned.    He opined  that  it  is  not  done from  a  coercive                                                               
standpoint,  but rather  the  item was  seized  as evidence,  the                                                               
state  was not  intending to  seek forfeiture,  and it  agreed as                                                               
part of the  resolution of the case that the  item be returned to                                                               
the person.   He opined  that if the case  had gone to  trial the                                                               
state's position  would have been  that the person would  get the                                                               
item back as well.  He said  he could not say that using property                                                               
as  leverage to  get someone  to  plead has  never happened,  but                                                               
that's  certainly not  the  intent.   He  clarified  that if  the                                                               
division believes it has a  provable case, it negotiates from the                                                               
standpoint that  it can  prove its case  and the  discussions are                                                               
about how to  resolve the case to avoid litigation  in a way that                                                               
is beneficial to both the state and defendant.                                                                                  
                                                                                                                                
2:25:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP  said he  believes  the  DOL sometimes  uses                                                               
seizure in lieu  of prosecution, such that a case  is closed out,                                                               
it  is  dismissed, otherwise  set  aside,  and the  property  was                                                               
forfeited as  part of  the agreement.   He  asked whether  he was                                                               
correct.                                                                                                                        
                                                                                                                                
MR.  SKIDMORE  explained that  seizure  and  forfeiture have  two                                                               
different  meanings.   He surmised  that Representative  Kopp was                                                               
asking  about   forfeiture  and  whether  there   are  cases  the                                                               
department  has resolved  wherein it  agrees for  someone not  to                                                               
obtain  a criminal  conviction,  but to  simply forfeit  property                                                               
that  had  been used.    He  said that  has  been  done with  the                                                               
rationale  that the  convictions in  certain circumstances  would                                                               
cause someone to lose their  license, such as a commercial guide,                                                               
or a fishing permit.  The  department will engage in that sort of                                                               
response in  order that there  is some penalty for  illegal acts,                                                               
but  the  department  is  also  trying to  find  a  way  so  it's                                                               
beneficial  and  the  person  doesn't   lose  their  license,  he                                                               
explained.                                                                                                                      
                                                                                                                                
2:27:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP  commented that he is  a commercial fisherman                                                               
and there  is a strict liability  in the law wherein  there is no                                                               
culpable mental  state before seizure  on the  commercial fishing                                                               
penalties.  He referred to AS 16.05.722(a)(b), which read:                                                                      
                                                                                                                                
          (a)  A  person  who without  any  culpable  mental                                                                    
     state violates AS 16.05.440  16.05.690, or a regulation                                                                
     of the  Board of Fisheries or  the department governing                                                                    
     commercial fishing,  is guilty of a  violation and upon                                                                    
     conviction is  punishable by  a fine  of not  more than                                                                    
     ...                                                                                                                        
                                                                                                                                
          (b) In addition, the  court shall order forfeiture                                                                    
     of  any  fish,  or  its fair  market  value,  taken  or                                                                    
         retained as a result of the commission of the                                                                          
     violation. ...                                                                                                             
                                                                                                                                
REPRESENTATIVE  KOPP  reiterated  that   under  current  law  the                                                               
fisherman  does not  have to  have  a culpable  mental state  for                                                               
fairly significant fines.                                                                                                       
                                                                                                                                
2:29:15 PM                                                                                                                    
                                                                                                                                
MR.  SKIDMORE related  that when  the fish  are taken  illegally,                                                               
having possession of  the illegally taken fish is a  crime in and                                                               
of itself.  With strict liability,  if it is proven the fish were                                                               
taken illegally,  the illegally  taken fish  are not  returned to                                                               
the fisherman.  He agreed there  is strict liability but in those                                                               
circumstances forfeiture does not occur  for a vessel, it is only                                                               
the fish.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  KOPP agreed  that in  those circumstances  vessel                                                               
forfeiture  does not  occur,  but the  fish  forfeiture and  fair                                                               
market  value does.    He  explained there  are  a  host of  ways                                                               
fishermen can  get caught  up, for example,  another boat  cuts a                                                               
fisherman's  net in  half and  half of  the net  drifts over  the                                                               
line, that is not a crime.                                                                                                      
                                                                                                                                
2:31:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  posited the question of  when an attorney                                                               
begins to believe there isn't  grounds for a prosecution, whether                                                               
that  triggers the  end  of the  conversation  and everything  is                                                               
finished  at that  point.   He commented  that his  impression is                                                               
that just  because an attorney  might start to believe  there are                                                               
not grounds  for a case, that  doesn't mean the case  is over and                                                               
done with at that point.  He asked whether he was correct.                                                                      
                                                                                                                                
MR. SKIDMORE asked whether he was  referring to a prosecutor or a                                                               
defense attorney  when not thinking  there is a basis  for moving                                                               
forward.                                                                                                                        
                                                                                                                                
REPRESENTATIVE EASTMAN  explained that in the  event Mr. Skidmore                                                               
begins to  think there are not  grounds for a case,  whether more                                                               
happens after that point.                                                                                                       
                                                                                                                                
MR. SKIDMORE answered  that if the division does  not think there                                                               
are grounds  to proceed on  a prosecution, the case  is dismissed                                                               
and all  of the seized  property in evidence is  returned whether                                                               
subject to forfeiture, or not.                                                                                                  
                                                                                                                                
2:33:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FANSLER  asked Mr. Skidmore  to speak more  to the                                                               
department's  fears  that  there  may be  possible  effects  upon                                                               
seizures  in that  possibly HB  42 would  allow a  person's money                                                               
returned to  them and possibly  used for their  criminal defense.                                                               
He asked  whether Mr.  Skidmore has  alternative language  he may                                                               
like to propose.                                                                                                                
                                                                                                                                
MR.  SKIDMORE  advised  the   department  does  have  alternative                                                               
language, but it is not  prepared to offer anything today because                                                               
he wants to  work with the sponsor  on this issue.   He said that                                                               
specifically   comes  from   a  provision   in  the   bill  [Sec.                                                               
12.36.310(e)], page 9, line 11, and lines 16-17, which read:                                                                    
                                                                                                                                
         (e) A court shall grant a claimant's motion if                                                                         
     the court finds that                                                                                                       
                                                                                                                                
            (3) the property is the only reasonable                                                                             
     means for a defendant to pay for legal representation                                                                      
     in a related criminal or forfeiture proceeding.                                                                            
                                                                                                                                
MR.  SKIDMORE  explained that  according  to  the bill's  current                                                               
language,  if the  court finds  that the  seized property  is the                                                               
only way the defendant can  pay for their attorney, that property                                                               
shall be returned.                                                                                                              
                                                                                                                                
2:35:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX followed  up  on Representative  Eastman's                                                               
question  and expressed  appreciation  that  when the  department                                                               
makes the decision a person is  innocent, it will simply drop the                                                               
case.    She  asked  what  happens  when  the  division  has  not                                                               
necessarily made the  decision that a person is  innocent, but in                                                               
looking  at the  evidence believes  there  is a  good chance  the                                                               
state  would  not  win  the  case even  though  it  believes  the                                                               
defendant  is  guilty.   Under  those  circumstances,  she  asked                                                               
whether  the state  would  never  make a  pact  with the  defense                                                               
attorney about  dropping the forfeiture  aspect if  the defendant                                                               
would plead to the misdemeanor.                                                                                                 
                                                                                                                                
MR. SKIDMORE responded that her  question strikes at the heart of                                                               
the criminal  division's policy when  charging cases,  wherein it                                                               
believes  the evidence  will allow  the state  to prove  beyond a                                                               
reasonable doubt  that the person  is guilty.  The  division does                                                               
not charge a  case if it believes it does  not have the evidence,                                                               
and  it  is  not  supposed  to  pursue  the  case  including  the                                                               
negotiations Representative  LeDoux was  discussing.   He related                                                               
it  is  a  higher  standard  than   is  set  by  the  Alaska  Bar                                                               
Association  (ABA), or  any other  legal  ethical authority,  but                                                               
that's the standard the division follows.                                                                                       
                                                                                                                                
2:37:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  said  she  understands that  may  be  the                                                               
standard  when   the  division  begins  the   prosecution.    She                                                               
clarified  that she  would like  to  know what  happens when  the                                                               
division considers a  case a "slam dunk" but  when getting closer                                                               
to trial decides it may not  be a slam dunk, whether the division                                                               
would just drop the case.                                                                                                       
                                                                                                                                
MR. SKIDMORE responded that the  standard the division follows is                                                               
that it believes  it can prove a case beyond  a reasonable doubt,                                                               
and  the division's  screening  of cases  and  decisions to  move                                                               
forward is its ethical obligation.   Although, he related, during                                                               
the  course of  the litigation  it discovers  additional evidence                                                               
suggesting  the evidence  is  not there  to  prove the  defendant                                                               
committed  the crime,  the division's  obligation as  prosecutors                                                               
and the policy of the division  is to dismiss that charge and not                                                               
try to plead it to something lower.                                                                                             
                                                                                                                                
2:38:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD asked  whether the  bill would  be heard                                                               
again because she would like to  put something on the record, and                                                               
asked whether Mr. Skidmore would be available.                                                                                  
                                                                                                                                
CHAIR CLAMAN advised that the bill  will be heard again and he is                                                               
confident Mr. Skidmore will be available.                                                                                       
                                                                                                                                
2:39:55 PM                                                                                                                    
                                                                                                                                
MARK RICHARDS,  Executive Director,  Resident Hunters  of Alaska,                                                               
advised  that Resident  Hunters of  Alaska sent  a letter  to the                                                               
House Judiciary  Standing Committee  supporting HB 42,  and asked                                                               
the committee to pass the bill from committee.                                                                                  
                                                                                                                                
REPRESENTATIVE LEDOUX  asked whether  he was  aware of  any cases                                                               
involving  resident hunters  wherein the  property that  had been                                                               
forfeited was significantly  in excess of a fine  that could have                                                               
been levied.                                                                                                                    
                                                                                                                                
MR. RICHARDS  answered that  the Resident  Hunters of  Alaska are                                                               
aware  of some  cases  with  guides and  subsistence  boats.   He                                                               
continued that  a pilot  had his aircraft  seized with  the wings                                                               
taken off  and transported,  and the  person was  found innocent.                                                               
Unfortunately, he commented, the  aircraft was his livelihood and                                                               
the aircraft was not available for his use for six months.                                                                      
                                                                                                                                
2:42:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked whether  he was  aware of  any cases                                                               
wherein someone  had been  offered that  their property  would be                                                               
returned if they plead to something.                                                                                            
                                                                                                                                
MR. RICHARDS  responded it  was not  so much  that, but  they are                                                               
certainly  aware  of  cases  where   guides  will  forfeit  their                                                               
property because they make a  consent agreement not to have their                                                               
license taken away.                                                                                                             
                                                                                                                                
REPRESENTATIVE LEDOUX  asked whether,  within the purview  of not                                                               
violating  privacy  considerations,  he   could  send  the  House                                                               
Judiciary  Standing  Committee a  list  of  examples of  property                                                               
being  seized wherein  the property  was worth  quite a  bit more                                                               
than the fine that may have been levied.                                                                                        
                                                                                                                                
MR. RICHARDS said  he will look into it  and email Representative                                                               
LeDoux with the results.                                                                                                        
                                                                                                                                
2:43:37 PM                                                                                                                    
                                                                                                                                
THESHIA NAIDOO,  Legal Director of Criminal  Justice, Drug Policy                                                               
Alliance, read her testimony into the record, as follows:                                                                       
                                                                                                                                
                                                                                                                                
     I work with the Drug  Policy Alliance, we're a national                                                                    
     non-profit  organization  that  has  worked  to  reform                                                                    
     asset  forfeiture policy  for many,  many years.   And,                                                                    
     together  with   organizations  across   the  political                                                                    
     spectrum,  we have  succeeded at  rolling back  some of                                                                    
     the harshest forfeiture laws in the country.                                                                               
                                                                                                                                
     We  are pleased  to support  HB 42,  and would  like to                                                                    
     thank  Representative   Wilson  for   introducing  this                                                                    
     important legislation.                                                                                                     
                                                                                                                                
     In  considering this  bill, Alaska  is among  a growing                                                                    
     number of  states to scrutinize  the practice  of civil                                                                    
     asset  forfeiture, which  has eroded  individual rights                                                                    
     and incentivized  the seizure of cash,  cars, and other                                                                    
     property,  even   in  the   absence  of   any  criminal                                                                    
     wrongdoing.                                                                                                                
                                                                                                                                
     There  is national  momentum for  reforming the  system                                                                    
     with legislation  backed by strong  bipartisan support.                                                                    
     In  fact, in  2016 alone,  there were  bills that  were                                                                    
     introduced  in  22  states across  the  nation.    And,                                                                    
     reform that have  been -- reforms have  been enacted in                                                                    
     the  past three  years  have been  signed  into law  by                                                                    
     Republican  governors  in states,  including:  Florida,                                                                    
     Michigan, Maryland, Montana,  Nebraska, and New Mexico,                                                                    
     and  a  whole host  of  other  states.  As well  as  by                                                                    
     Democratic  governors  in  California,  New  Hampshire,                                                                    
     Minnesota,  and  other  similar states.    The  growing                                                                    
     left-right   coalition  calling   out  this   injustice                                                                    
     includes groups  as diverse  as the  ACLU and  the Drug                                                                    
     Policy Alliance,  the Institute for Justice  which is a                                                                    
     libertarian-leaning  group,  the  Heritage  Foundation,                                                                    
     American for  Tax Reform,  (indisc.) Crime,  and dozens                                                                    
     of  other   groups  advocating  for   property  rights,                                                                    
     individual rights,  and criminal justice reform.   This                                                                    
     is  an area  that has  united groups  of all  political                                                                    
     stripes.   The laws that  have been implemented  at the                                                                    
     state  level vary  in scope  and include  comprehensive                                                                    
     proposals to  overal --  to overhaul  civil forfeiture,                                                                    
     as well  as state  level procedural reforms  to protect                                                                    
     property owners, especially  innocent owners, and those                                                                    
     that increase transparency  and reporting requirements.                                                                    
     Many of  these reforms  were enacted despite  local law                                                                    
     enforcement opposition.                                                                                                    
                                                                                                                                
     I'd  be  happy  to  answer questions  about  state  law                                                                    
     reforms.  I know there is  -- we're running into a time                                                                    
     constraint, but  I'm also willing to  provide follow up                                                                    
     with some testimony after this hearing.                                                                                    
                                                                                                                                
     In conclusion, I'd like  to respectfully urge committee                                                                    
     members to  vote in  favor of  this important  piece of                                                                    
     legislation   and  protect   due   process  rights   of                                                                    
     Alaskans.  The bill  contains important protections for                                                                    
     property owners that would  help ensure the fundamental                                                                    
     fairness of the  asset forfeiture system in  Alaska.  I                                                                    
     will stop there and I'm happy to answer any questions.                                                                     
                                                                                                                                
2:47:06 PM                                                                                                                    
                                                                                                                                
KENT  SULLIVAN,  Assistant  Attorney General,  Natural  Resources                                                               
Section, Civil Division, Department of  Law, said the concerns of                                                               
the Civil Division include in rem  actions used in a purely civil                                                               
context and  completely unrelated  to criminal proceedings.   For                                                               
example, he  said it  would include  instances in  which property                                                               
needs to be  named in a lawsuit in order  to proceed against that                                                               
property,  such as  quiet  title  actions, condemnation  actions,                                                               
probate   actions,  nuisance   property,   or  abandoned   mining                                                               
equipment.    Those are  all  in  rem proceedings  -  proceedings                                                               
against  personal or  real property.   Oftentimes,  he explained,                                                               
defendants in those situations can't  be identified and the state                                                               
will initiate a  legal proceeding against the real  property.  An                                                               
issue with this bill is that it  is so broad it purports to limit                                                               
when  in  rem   forfeitures  can  happen  to  a   narrow  set  of                                                               
circumstances, he  pointed out.   It  would arguably  exclude the                                                               
above  circumstances   and  that  would  be   a  problem  because                                                               
obviously the  state initiates quiet title  actions, condemnation                                                               
proceedings often  and it wants  the ability to  pursue abandoned                                                               
and  nuisance  property,  and  those type  of  proceedings.    He                                                               
related that  it is important the  language of the bill  isn't so                                                               
broad  that it  arguably precludes  those types  of actions.   He                                                               
related  that the  civil division  and Mr.  Skidmore are  working                                                               
with Representative  Wilson's office and recommending  changes to                                                               
avoid those problems.                                                                                                           
                                                                                                                                
2:49:24 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN asked  Mr.  Skidmore  how much  time  is needed  to                                                               
provide input to Representative  Wilson and ascertain whether she                                                               
agrees with the changes.                                                                                                        
                                                                                                                                
MR. SKIDMORE  answered that they  do have language that  needs to                                                               
be  circulated because  the Department  of  Law (DOL)  represents                                                               
other  state agencies,  it would  probably  take a  week to  pull                                                               
together all of their comments and feedback.                                                                                    
                                                                                                                                
CHAIR  CLAMAN surmised  that holding  the bill  for two  or three                                                               
weeks would work for everyone.                                                                                                  
                                                                                                                                
MR. SKIDMORE agreed.                                                                                                            
                                                                                                                                
2:50:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD  asked  Mr.  Skidmore  to  estimate  the                                                               
percentage of crimes not prosecuted in Alaska.                                                                                  
                                                                                                                                
MR.  SKIDMORE  related  that  he  has  been  working  on  pulling                                                               
together those sorts  of numbers for the  subcommittee hearing on                                                               
the budget.  He said he does  not know the numbers for last year,                                                               
but  during  the  prior  year  the division  saw  a  six  percent                                                               
increase in  cases it had declined  for budget reasons.   He said                                                               
he could not  give the committee the numbers today,  but he knows                                                               
there is  a percentage  that varies depending  upon the  level of                                                               
the crime and type of crime for the cases that are declined.                                                                    
                                                                                                                                
2:51:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  REINBOLD commented  that  the  Department of  Law                                                               
(DOL) fiscal note appears to be  a "win for defense attorneys" if                                                               
the defendant  is able to  get the  forfeiture money back  to pay                                                               
for their  defense.  In  the areas  of Anchorage and  Eagle River                                                               
there have been  over 2,000 stolen vehicles, which  is a dramatic                                                               
increase.  She expressed concern  that, according to FBI reports,                                                               
there  is growing  number of  organized crime,  and currently  it                                                               
appears to be  a double-edged sword.  For example,  she said, her                                                               
home is  robbed and the  offenders use someone else's  vehicle to                                                               
get to her  property to commit a crime.   Therefore, it is "their                                                               
property versus  my property, you  know, and they're --  they are                                                               
the likely ones  at the defense."  She opined  that the committee                                                               
needs  to take  a step  back,  for example,  "if a  vehicle --  a                                                               
vessel is being used to take  the state's property, the fish, you                                                               
know, whose property are we defense.   This whole thing about the                                                               
constitution."   She  continued that  the committee  needs to  be                                                               
careful  of whose  property is  being  discussed, and  reiterated                                                               
that  the  bill needs  to  be  slowed  down  a bit  because  when                                                               
criminal activity  affects her property  it inhibits  her ability                                                               
for life, liberty,  and the pursuit of happiness  because she has                                                               
to  go through  many criminal  hearings.   She stressed  that the                                                               
committee  needs  to  identify  whether  it  is  the  defendant's                                                               
property,  "or is  this the,  you know,  the other  -- the  other                                                               
end."                                                                                                                           
                                                                                                                                
REPRESENTATIVE REINBOLD referred to  DOL's 12 million fiscal note                                                               
over  five years  and said  it will  affect murders,  drug cases,                                                               
child sex exploitation, and sex  trafficking.  She said she would                                                               
like to know  whether the fish and game  issues, drug enforcement                                                               
policies need  to be  isolated.   She related  that she  does not                                                               
want to  give people allegedly  involved in criminal  activity an                                                               
upper  hand,  especially  organized  crime, and  that  she  looks                                                               
forward  to   listening  to  Mr.  Skidmore   and  receiving  help                                                               
understanding the fiscal note.                                                                                                  
                                                                                                                                
2:55:41 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN, in  response to a prior  question of Representative                                                               
LeDoux,  noted that  in federal  court it  was a  common question                                                               
when  there were  people with  asset  forfeitures at  issue.   He                                                               
continued  that  the prosecution  never  brought  it up  but  the                                                               
defendants often  brought it up and  wanted to know if  they pled                                                               
to such  and such an  offense would they  be allowed to  keep the                                                               
car.   He explained  that it  never came up  with respect  to the                                                               
cash in that  there was a kind  of recognition that a  big bag of                                                               
opioids and  $25,000 sitting  next to the  opioids that  the cash                                                               
was going with  the opioids.  The  car and a house  would come up                                                               
when  there  were  large criminal  enterprises  going  on,  which                                                               
rarely happens in state court, he said.                                                                                         
                                                                                                                                
CHAIR CLAMAN  referred to the  hypothetical drug case with  a bag                                                               
of opioids  and $25,000 in  cash, and  said the query  was always                                                               
with defendants coming  and looking for private  counsel with the                                                               
$25,000 cash.   He opined  there are  a number of  ethical issues                                                               
about  whether a  defense attorney  could take  that $25,000,  or                                                               
could take  the case on  a contingency basis wherein  the defense                                                               
attorney would be paid after the $25,000 was recovered.                                                                         
                                                                                                                                
2:58:32 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN advised that public testimony was not closed.                                                                      
                                                                                                                                
[HB 42 was held over.]                                                                                                          
                                                                                                                                

Document Name Date/Time Subjects
HB042 ver D 1.19.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Sponsor Statement 1.19.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Sectional Analysis ver D 1.19.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Current AK Law Forfeiture Flow Chart 1.22.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Forfeiture Flow Chart 1.22.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Forbes Article 1.19.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Heritage Article 1.22.19.PDF HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Letter RHAK 1.20.17.pdf HJUD 1/23/2017 1:00:00 PM
HB042 Supporting Document-Letter NFIB 1.20.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Letter of Support Brown 1.23.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Supporting Document-Letter UFA 3.1.17.pdf HJUD 1/23/2017 1:00:00 PM
HB042 Fiscal Note DCCED-AMCO 1.20.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Fiscal Note DCCED-CBPL 1.20.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Fiscal Note LAW-CRIM 1.21.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Fiscal Note DPS-AST 1.22.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42
HB042 Fiscal Note JUD-ACS 1.22.17.pdf HJUD 1/23/2017 1:00:00 PM
HJUD 3/1/2017 1:00:00 PM
HJUD 3/22/2017 1:00:00 PM
HB 42