Legislature(1993 - 1994)

03/01/1993 09:10 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
  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.                                                    
                                                                               

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