Legislature(1993 - 1994)
03/01/1993 09:10 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 19(JUD): An Act relating to the crime of conspiracy. Co-chair Pearce announced that CSSB 19 was before the committee and invited Senator Rick Halford, sponsor of the bill, to join the committee at the table. She asked Senator Halford to speak to the fiscal notes as well as giving an overview of the bill. SENATOR RICK HALFORD stated that a similar bill to SB 19 had passed the Senate in the 1992 legislative session. He said that SB 19 recognizes the crime of conspiracy and makes the penalty one step down from the commission of that crime. He said that Alaska was one of the few states that did not have conspiracy legislation. He directed attention to the zero fiscal notes for the Department of Law and Department of Public Safety. The Court System shows a fiscal note of $121.1, and Department of Corrections, $365.0. He observed that the two highest fiscal notes, totaling almost $1M, were for the Office of Public Advocacy at $513.0, and the Public Defender Agency showing $402.6. He felt the two high fiscal notes were unrealistic, and reflected the departments' disapproval of the legislation. He asked the committee to consider the reasoning of the Department of Law that said more cases could be settled with a conspiracy statute in place than might be settled otherwise. SENATOR JAY KERTTULA pointed out that the zero fiscal note by the Department of Law conversely showed its support of CSSB 19. He suspected that there would be some cost to the Department of Law. He supported any statute that would increase the chance of convicting felons and other criminals. He asked Senator Halford to speak to the fact that nationwide, the conspiracy statutes have been used extensively to convict white collar criminals. Senator Halford said that last session the House had made an effort to broaden the conspiracy bill to include other crimes. He maintained that CSSB 19 only dealt with serious felony offenses. In answer to Co-chair Frank, Senator Halford defined a "serious felony offense" as an offense "...against a person under AS 11.41, punishable as an unclassified or class A felony," such as murder, rape, kidnapping, "or involving controlled substances under AS 11.71, punishable as an unclassified, class A, or class B felony," such as trafficking drugs. DEAN J. GUANELI, Chief, Criminal Division, Department of Law, spoke to class B felonies in connection with controlled substances. He said the primary offense under this statute was the sale of cocaine. A class A felony was primarily the sale of heroin, and unclassified drug offenses targeted large drug rings, and the sale of heroin and cocaine to minors. In answer to Co-chair Frank, Mr. Guaneli said, under current Alaska law, criminal liability can attach to a person that pulls the trigger, or to someone who aids and abets that person, or to a person that attempts that crime. He said what is missing in Alaska law, that exists in most other states, is the ability to attach criminal liability when two people get together to plan a felony, and begin to carry it out. He explained that the theory underlying conspiracy was that it is important to stop an offense such as contract murder, early in the planning stages. The other theory is that when two people get together to plan a crime, it is more likely that it will happen. He admitted, that within Alaska, other theories of criminal liability, aiding and abetting, soliciting, overlap to some extent. But he felt there are particular circumstances involving criminal organizations and drug rings where the only way to reach a criminal is through a conspiracy law. Co-chair Frank asked how many additional situations would CSSB 19 create where the Department of Law would make arrests, and/or take to court individuals, and how that was reflected in the zero fiscal note. Mr. Guaneli said that there were very few cases where conspiracy would be the only crime charged. The conspiracy offense would almost always be combined with other more serious offenses. The conspiracy offense, being a lesser offense, could be used to plea bargain, for example, to facilitate testimony, or if there is not enough evidence to hold the individual on the more serious offense, conspiracy would be the only remaining offense. SENATOR TIM KELLY had noticed on the Judiciary Committee Report that two senators had recommended "do pass" with amendments. He asked what those amendments were. Senator Halford said that the amendments were similar to ones added last session to the House conspiracy bill. One amendment said that an individual who was originally involved in the conspiracy, but after alerting the police, could return as an undercover agent in that conspiracy, and would not be charged in the conspiracy. Another amendment said the individual had to agree to, take action, and communicate about the crime, in order to be charged. Another question was whether a law enforcement officer could be involved in the beginning of a conspiracy. Senator Kerttula agreed that someone in the law enforcement agency might initiate a crime and that could become part of a conspiracy. In which case, nothing would have ever happened if it had not been initiated in the first place. He pointed out that CSSB 19 would increase the cost for the entire justice system, and quoted from the backup for the Department of Law's fiscal note. Mr. Guaneli said conspiracy laws formerly introduced had a much broader range. Senator Kerttula asked Mr. Guaneli if he had enough funding to run the Department of Law. Mr. Guaneli said that any agency could use more money, and this year there was a small increase in the Governor's funding this year. Mr. Guaneli noted that CSSB 19 was directed at serious offenses. He stated that a directive would be issued to all law enforcement agencies that it not their responsibility to file charges involving conspiracy. After a careful review of the evidence, prosecutors would make the decision to charge an individual with a conspiracy. He assured the committee that he would not be coming back to the legislature asking for additional funding if CSSB 19 passed. Senator Kerttula said that it was his long experience that the present administration's attitude toward certain legislation may change drastically in ten years or less, and could run off in another direction without controls of some kind in place. Co-chair Frank asked how CSSB 19 would be limited to the Department of Law. Mr. Guaneli said even though the police would have the authority to file a conspiracy complaint in court, the Department of Law would discourage it. He said that Department of Law would insist that conspiracy charges would originate in the Department of Law. Co-chair Frank asked if the Department of Law would like to see wording to that effect in CSSB 19. Mr. Guaneli said he felt that would not be necessary. He proposed that the state troopers and the larger police agencies would cooperate in this area. Discussion followed between Senators Kelly, Kerttula and Mr. Guaneli regarding language in the bill speaking to a conspiracy charge not being initiated by an undercover or law enforcement authority. Mr. Guaneli felt that the entrapment laws took care of that concern. Senator Kerttula proposed that a letter of intent be added to CSSB 19. Co- chair Pearce agreed to work with Senator Kerttula on language for a letter of intent. Co-chair Frank related his concern that this law would increase the number of individuals jailed and length of sentences, which in turn would raise Department of Corrections' costs. Mr. Guaneli said that CSSB 19 was amended in Senate Judiciary Committee to say that proof beyond a reasonable doubt of intent to facilitate a particular crime, an agreement between two parties to carry it out, and an overt act in order to charge an individual of conspiracy. Included in that amendment was a definition of an overt act. He concluded that in the terms of the elements that have to be proven, it showed that it was an act that should have been stopped. Senator Kelly suggested that the letter of intent state that CSSB 19 was not meant to get around the entrapment statute. Co-chair Pearce asked Senators Kelly, Kerttula, Halford, and Mr. Guaneli to draft a letter of intent for CSSB 19 . With no further testimony to be heard, Co-chair Pearce announced that CSSB 19 would be HELD in committee and heard again on Wednesday, March 3, 1993.