02/09/1995 08:05 AM House STA

 HSTA - 02/09/95                                                               
 HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER                              
                                                                              
 Number 438                                                                    
                                                                               
 REPRESENTATIVE CON BUNDE stated he and his aide had worked on this            
 issue for the past three years and he had a sponsor statement that            
 he would pass out to the committee.                                           
                                                                               
 WALT WILCOX, Committee Aide for State Affairs, announced that the             
 public defender was on teleconference from Anchorage and asked her            
 to identify herself.                                                          
                                                                               
 BARBARA BRINK announced that she was the Deputy Public Defender in            
 Anchorage.  She asked if she would have the opportunity to make any           
 comments.                                                                     
                                                                               
 MR. WILCOX verified that she would.                                           
                                                                               
 REPRESENTATIVE BUNDE stated that HB 38 provided for a mandatory               
 99-year sentence for a specific group of offenders, who have two              
 separate prior Class A or unclassified felony convictions.  He said           
 it was called popularly the "Three Strikes" bill, but that had such           
 negative connotations in other states, whose bills were not as                
 carefully drafted, that he would prefer to call it the habitual               
 offender bill.  Under this proposed legislation, discretionary                
 parole and good time sentence reductions are not available to                 
 offenders who are sentenced to a 99-year term.  However, HB 38 does           
 allow the court to reduce a sentence after 50 years have been                 
 served, the rationale being that someone that is in for a third               
 felony conviction is probably in their thirties or forties, and by            
 the time they are sixty or seventy years old, they are probably no            
 longer a threat to society.  They become very expensive for the               
 state to house and it is frankly good business to allow them to               
 petition to be released at the Governor's discretion.                         
                                                                               
 REPRESENTATIVE BUNDE explained that this bill also includes some              
 prosecutorial discretion and flexibility, so that either normal               
 presumptive sentencing can take place, or in a case of weak                   
 circumstantial evidence, we can avoid the kinds of things that we             
 hear about, where someone is a lifetime career criminal and then              
 they steal a piece of pizza and are locked up for life as their               
 third offense.  He mentioned that he knew there were costs                    
 associated with incarcerating someone for 99 years, but this bill             
 was crafted to keep that cost to a minimum.  He thought it would              
 actually save the state money in the long run.                                
                                                                               
 REPRESENTATIVE BUNDE argued that strong punishment does help to               
 shape behavior and deter crime, and that although it was certainly            
 a goal of the state to rehabilitate people, that some who have                
 proven with a lifetime of crime, that they were beyond or incapable           
 of being rehabilitated.  He said there was little left for the                
 legislature to do, except to protect society from these predators             
 who continue to create more victims.  He claimed research has shown           
 that the recidivism rate is 65 to 70 percent and it appears that              
 only 5 to 6 people a year would fall under the effect of this                 
 legislation.  He said there is not a large population of these                
 types of criminals, but there is a significant core of these types            
 of predators.  He said these offenders are taking up costly time in           
 the judicial system, to say nothing of the costs to their victims.            
 He felt that if the revolving door of justice was stopped, these              
 types of crimes would decrease.  He said we had too many repeat               
 offenders, depending on the goodwill of the people of Alaska.  He             
 said that HB 38 would make Alaska a safer place.                              
                                                                               
 REPRESENTATIVE BUNDE asked to read a few things into the record               
 from the packets that the committee had received from a group                 
 called Crime Strike, a division of the National Rifle Association.            
 He said he wanted to emphasize that Alaska was not immune to the              
 crime wave spreading across our nation, that a woman was raped                
 every 15 hours, someone was robbed every 13 hours, and that in                
 fact, a violent crime was committed in Alaska every 2 hours and 15            
 minutes.  He added they suggested that passage of this bill would             
 help to alleviate the effects of crime on the citizens of Alaska by           
 locking up these incorrigible criminals for life.  He further                 
 stated that repeat offenders are a serious threat to public safety,           
 according to the National Center for Policy Analysis, the average             
 criminal commits between 187-287 crimes per year.                             
                                                                               
 REPRESENTATIVE BUNDE said with the passage of this bill, the threat           
 to the public will be substantially reduced by taking these repeat            
 offenders off the street.  He pointed out an accompanying chart               
 which showed that when Alaska's level of incarceration went up, its           
 level of crime went down.  He pointed to California as a state that           
 had experience with this type of legislation, and showed statistics           
 which documented that their rate of violent crime went down 7                 
 percent in the first 6 months their bill was in effect.  Homicides            
 and robbery were both down 11 percent.  He said that the National             
 Center for Policy Analysis reported that it costs taxpayers about             
 $25,000 a year to incarcerate criminals, a nationwide average that            
 Alaska does not achieve unless we send our prisoners outside.  He             
 said if the criminal was out on the street committing 187-287                 
 crimes a year, the average cost to society was about $2,300 per               
 crime.  Added together, one career criminal could cost Alaska                 
 $430,000 annually.  He stated California has figured that their               
 "Three Strikes" legislation has saved taxpayers $29.5 billion over            
 5 years.  He said he would be willing to answer any questions.                
                                                                               
 CHAIR JAMES stated she noticed that in fiscal year 1996, there was            
 a note of almost $5 million in contractual fees that doesn't show             
 up afterwards.  She also noticed the fiscal note showed that this             
 bill would put an additional 202 prisoners in jail over a period of           
 time.  She asked if Representative Bunde could explain the fiscal             
 note and its accuracy.                                                        
                                                                               
 Number 571                                                                    
                                                                               
 REPRESENTATIVE BUNDE stated he had some serious disagreements with            
 the attached fiscal note for HB 38.  He said he would point out               
 that they are dramatically larger than the fiscal notes received              
 last year on the same bill.  He thought the logic behind this                 
 fiscal note had its problems.  He stated he would ask the committee           
 to focus on the philosophy of this bill, as he was still gathering            
 information to refute this fiscal note.  He said he would like the            
 opportunity to do that in the Finance Committee.  He mentioned that           
 he thought the large fiscal note may stem from those who are                  
 philosophically opposed to this bill, or there may be some errors             
 in calculation.  He said that as he pointed out, there should only            
 be 3 to 5 people incarcerated each year, and there should be zero             
 fiscal impact for the next 10-12 years, because if someone is                 
 convicted under this bill, as it would be their third felony                  
 conviction, they would be incarcerated for that long under current            
 statute.  He thought there were some weaknesses in the calculations           
 for this current fiscal note, and he would like to argue that point           
 after he had finished gathering his information.                              
                                                                               
 Number 585                                                                    
                                                                               
 REPRESENTATIVE GREEN stated he was appalled that so few people are            
 responsible for so many crimes.  He questioned if the recidivism              
 statistics showed that after someone was caught twice committing a            
 crime, if they became more clever, and so committed a                         
 proportionately larger number of crimes before being caught the               
 third time.  He said he was concerned there might be a larger                 
 number of people out there with two convictions on their record,              
 who might be close to getting convicted under this bill.  He stated           
 though, he thought this was a good use of general funds, because as           
 a criminal got more experienced, he figured they committed many               
 more crimes before getting caught the third time.  Thus, he figured           
 the cuts to crime will actually be better than the statistics                 
 document.                                                                     
                                                                               
 REPRESENTATIVE BUNDE agreed, saying he found it appalling that the            
 average criminal commits 200 crimes a year.  He commented that                
 equalled almost one crime a day and that was rather busy.  He said            
 he could alleviate any concerns that there was this huge population           
 of criminals that would be impacted by this legislation, and                  
 pointed out that only unclassified and Class A felonies would fall            
 under this bill.  To give an example, he said the type of criminal            
 that would be affected by this would be first-degree murderers,               
 kidnappers, first-degree sexual assault cases, first-degree sexual            
 abuse of a minor, and similar cases.                                          
                                                                               
 REPRESENTATIVE GREEN asked if there wasn't a different mind set               
 between the hardened criminal who would commit these types of                 
 crimes, and the smaller petty criminal, such as the petty thief.              
                                                                               
 Number 628                                                                    
                                                                               
 REPRESENTATIVE PORTER stated he had spent a good part of his life             
 trying to figure that out and came to the conclusion that all of              
 them are different.                                                           
                                                                               
 CHAIR JAMES asked Barbara Brink, the public defender, if she had              
 any comments or questions.                                                    
                                                                               
 Number 635                                                                    
                                                                               
 BARBARA BRINK, Public Defender testified via teleconference from              
 Anchorage and said she had been a public defender in Alaska for 13            
 years and wanted to share her perspective as to how this bill would           
 affect them.  She said this bill would cause increased litigation             
 for the public defender's office in three ways:  1) An individual             
 charged with a third felony, will more likely exercise their right            
 to trial, as opposed to pleading out; 2) she said there would have            
 to be a more extensive look at the two prior convictions to make              
 sure that they are constitutionally valid; and 3) a person charged            
 with a conviction will be more likely to take their case to trial             
 instead of pleading out, as they will not want even the first                 
 conviction on their record for fear that it will count towards                
 their allowed total of three convictions.  She argued that today,             
 94 percent of their felony cases do not go to trial, but are                  
 pleaded out short of trial.  She feared that with this bill, the              
 existing system would collapse on itself because of the increased             
 workload.  She said there was dispute as to how many cases this               
 bill would affect.  She stated the Criminal Justice Working Group,            
 made up of representatives from all of the criminal justice                   
 agencies, believed that prosecution of 10-30 defendants will occur            
 each year.  While developing this fiscal note, they had picked 15             
 cases a year as a fair representation of the projected number that            
 this bill would affect.  She said even this small number would                
 consume weeks for the court system.  She pointed out that in                  
 California, after they passed their "Three Strikes" law, the Los              
 Angeles District Attorney's Office had to shut down numerous                  
 departments dealing with environmental law and fraud, to deal with            
 the increased workload from the "Three Strikes" cases.  She added             
 the California Judicial Council projected that this law would                 
 amount to an extra 17,000 jury trials per year.  She also said that           
 many of the civil judges in California had been taken off of the              
 civil bench and reassigned to criminal cases.  She thought this was           
 an important lesson for us to learn of the far reaching                       
 consequences of this legislation.  She said that figures from the             
 FBI and the Bureau of Justice Statistics showed there had not been            
 growth in the overall crime rate over the last two decades.  She              
 said the rate of violent crime had actually dropped 22 percent                
 between 1980 and 1992.                                                        
                                                                               
 TAPE 95-12, SIDE B                                                            
 Number 000                                                                    
                                                                               
 MS. BRINK said she wanted to point out that the rate of violent               
 crime among offenders 35 and older has decreased, and that where              
 violent crime is on the increase, is in younger populations which             
 would not be affected by this bill.  She said that in Washington              
 State, prosecutors and police officers have observed that since the           
 passage of their "Three Strikes" law, criminals have been showing             
 a scary tendency to be more violent or desperate when they are                
 about to be apprehended.  They are more willing to resist arrest,             
 knowing that for that crime, they will spend a lifetime in prison.            
 She also argued that incarcerating a person for life places a much            
 larger management burden, as there is no incentive for good                   
 behavior.  She also thought that the incarceration of older                   
 prisoners forces the release of younger ones, and so the desired              
 result is not a consequence of this bill.  She said the largest               
 group of inmates is in the 18- to 24-year-old category and is                 
 uneducated and unemployed.  They don't have a high school degree              
 and are likely to have been raised by a single parent.  They have             
 an income of less than $10,000 a year.  Nationwide, more than half            
 of convicted violent offenders were under the influence of drugs or           
 alcohol and she thought that in Alaska, the percentages were                  
 probably higher.  She said child abuse and neglect increased by 40            
 percent, the chance that the child will eventually become a                   
 criminal.  She said these are areas where violent crime could be              
 effectively combatted through education and social policy.  Violent           
 crime needs to be prevented, not punished after the fact.  She                
 feared the legacy of the "Three Strikes" bill could be that it                
 diverted limited resources away from things that actually could               
 have had a positive effect on our crime rate.                                 
                                                                               
 Number 089                                                                    
                                                                               
 REPRESENTATIVE BUNDE responded saying he agreed Alaska's violent              
 crime rate has not gone up, but he would argue that the type of               
 violent crime had gone from domestic violence to drive by                     
 shootings.  He also said the public's perceptions of their                    
 vulnerability to violent crime has increased.  He thought part of             
 what this bill did was to send a message of support to the average            
 citizen, building their support in the criminal justice system.  He           
 thought it was pretty low now, after 40 years of what he said that            
 some would call coddling criminals.  He said it was hard for him to           
 imagine and the testimony last year indicated that serious felonies           
 such as this bill affects, are already seriously litigated.  He               
 also reminded the committee there was discretion allowed on the               
 part of the prosecutor, and he argued that they would only attempt            
 this route, if they had a sure case.  He stated he would also like            
 to remind the committee that this bill is not like the "Three                 
 Strikes" legislation of other states that have plugged up their               
 courts, and he could say, at least in the case of New York, they              
 were wanting copies of this bill to use as a starting point for               
 their own "Three Strikes" or habitual offender legislation.                   
 Finally, he wanted to remind the committee there were perks in                
 prison, and so he was not convinced by arguments that if you place            
 someone in prison long term, they would not be able to be managed.            
 He said that there were perks for good behavior and so we did not             
 have to let them out early to make them feel good.                            
                                                                               
 Number 130                                                                    
                                                                               
 REPRESENTATIVE PORTER wanted to verify whether there was any other            
 testimony.                                                                    
                                                                               
 MARGARET BERCK, Attorney and member of the Alaska Chapter of the              
 American Civil Liberties Union, said that in looking at this bill             
 as a trial attorney, she wanted to share her views as to what she             
 thought this bill would mean to the public and criminals in Alaska.           
 She stated she could think of one of her clients that might fit               
 under this legislation, who had been sentenced to 61 years in                 
 prison with 20 years suspended.  By the time he gets released and             
 is clear of his sentence, he would be 72 years of age.  She was               
 concerned that the bill, as currently worded, did not allow for the           
 discretion of either the parole board or the judge to go back and             
 look at someone's sentence until they had served half of it, or 49            
 1/2 years.  She thought the sponsor intended that when the person             
 gets in their sixties or seventies and is unlikely to commit any              
 more crimes, they would be released, so the public would not have             
 to care for them in a costly prison nursing home.  She was                    
 concerned that there was no provision for going back to the court             
 and requesting a modification of sentence for a rehabilitated                 
 prisoner.  She pointed out that she had only been successful twice            
 in getting a modification of sentence for any of her clients, and             
 one was for a person diagnosed with terminal cancer.  She also                
 expressed concern that this bill would limit the ability of the               
 judiciary, who she thought had acted very responsibly.  She also              
 thought the committee should reconsider the position of this bill             
 to force an elderly individual to serve the remainder of their                
 sentence, after they are no longer a threat to society.  She was              
 also concerned that this bill would give greater discretionary                
 authority to the prosecutor by forcing up the penalties and making            
 them more mandatory.  She pointed out that prosecutors are not                
 elected and so the public has very little control over them.  She             
 concluded by saying she agreed with Representative Porter, who she            
 thought was saying that each person was an individual and that                
 bills such as these, took away the discretionary authority of the             
 judiciary to treat each person as an individual and make individual           
 decisions on the people who appear before them.                               
                                                                               
 Number 308                                                                    
                                                                               
 REPRESENTATIVE OGAN asked Ms. Berck what she meant when she said              
 she had only one client who would fall under the purview of this              
 bill.                                                                         
                                                                               
 MS. BERCK verified that what she meant was she had one client                 
 within the last two years, who would fall within the parameters of            
 this bill.                                                                    
                                                                               
 REPRESENTATIVE OGAN stated he thought that the fact that this bill            
 was before the committee, was a demonstration of the public                   
 perception that criminals get sentenced lightly and are back on the           
 streets creating havoc.  He asked if Ms. Berck could offer an                 
 alternative solution to this bill that would keep criminals in jail           
 for a longer period of time their first or second offense, and that           
 would satisfy his constituents' demands that the legislature do               
 something about these repeat offenders.                                       
                                                                               
 Number 355                                                                    
                                                                               
 MS. BERCK said she thought that public perception was possibly                
 skewed by the unusual cases that are publicized in the press.  She            
 said she didn't know how to educate the public and she didn't know            
 who was responsible for this education process.  She said her                 
 response was to not take the discretion away from the judiciary to            
 make those determinations of who should be sent to prison for a               
 long time and who should have the chance of rehabilitation.                   
                                                                               
 Number 383                                                                    
                                                                               
 REPRESENTATIVE ROBINSON asked Ms. Berck to explain how in the 1980s           
 we completely revamped our criminal code and put in presumptive               
 sentencing.  She wanted to point out that a lot of discretion was             
 taken away from judges a long time ago.                                       
                                                                               
 CHAIR JAMES commented that she thought the members of this                    
 committee were aware of presumptive sentencing, and so asked Ms.              
 Berck to respond quickly in the interest of saving time.                      
                                                                               
 MS. BERCK stated that under presumptive sentencing, the criminal              
 code did increase penalties and did erode the discretionary                   
 authority of the judges.  She said if larger penalties do deter               
 criminals, we should have seen some results from these stiffer                
 penalties of the 1980s, but haven't.                                          
                                                                               
 CHAIR JAMES stated she wanted to point out that although the level            
 of crime has remained relatively the same, statistics show that               
 there is a difference in the kind of crimes and the people who are            
 committing them.  She stated if that were included and we realized            
 that even with this new layer of crimes and criminals, the level of           
 overall crime had stayed the same, then we could safely assume the            
 crime that we had before had decreased as a result of presumptive             
 sentencing.                                                                   
                                                                               
 Number 421                                                                    
                                                                               
 REPRESENTATIVE PORTER admitted that his background was going to               
 show on this bill.  He said that presumptive sentencing came about            
 as a result of the abuse of judicial discretion.  He stated a study           
 had indicated that the judges at that time were sentencing                    
 minorities and people of lower economic backgrounds to harsher                
 penalties than those who were not in these categories.  He                    
 submitted that the average offender would not be affected by this             
 bill, but rather your "John Dillinger" variety of criminal.  He               
 thought these people should be sent away for longer periods of                
 time.  He argued that the fiscal notes and concerns of the defense            
 bar were driven by the philosophy of what would happen if every               
 opportunity of invoking this legislation were invoked.  He said               
 these decisions would be made by the prosecutors.  He pointed out             
 there was a history of the habitual offender law in this state                
 which would suggest that these fiscal notes were not correct.  He             
 said when he was a police officer, there was a habitual offender              
 law and it was used as a deterrent to persuade some professional              
 criminals to get out of business.  He also argued that this type of           
 law does help to turn around the average criminal who gets into a             
 bad pattern, because they feel the threat of being sent away for              
 life.  He said that habitual offender legislation has saved a lot             
 of crime and expense in this state, as opposed to causing it.                 
                                                                               
 REPRESENTATIVE IVAN asked if there was anyone representing the                
 Department of Corrections.  He asked what percentage of the                   
 population who had committed these types of crimes were minorities.           
                                                                               
 Number 475                                                                    
                                                                               
 JERRY SHRINER, Special Assistant to the Commissioner, Department of           
 Corrections, said he couldn't answer the question of what                     
 percentage of these criminals were minorities.                                
                                                                               
 CHAIR JAMES asked that he gather this information and provide it to           
 Representative Ivan.                                                          
                                                                               
 REPRESENTATIVE ROBINSON was curious if we had invited the                     
 Department of Law to testify on this bill.                                    
                                                                               
 CHAIR JAMES responded there was no special guest list; anyone was             
 invited to testify on any bill they wished.  She added that the               
 State Affairs committee's overview was to see how these bills would           
 affect the state, and while there probably was some legal                     
 questions, she felt very comfortable with letting them be raised in           
 the Judiciary Committee.  She said Representative Robinson was free           
 to invite anyone she wished in the future, but this committee did             
 not have a special guest list.  She added that generally the                  
 sponsor makes many of these invitations or they come on their own.            
                                                                               
 Number 510                                                                    
                                                                               
 REPRESENTATIVE PORTER moved that the committee pass HB 38 with                
 individual recommendations and the attached questionable fiscal               
 notes.                                                                        
                                                                               
 CHAIR JAMES asked if there were any objections.  Hearing none, the            
 bill was passed to the next committee of referral.