Legislature(1993 - 1994)
02/19/1993 01:41 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATOR TAYLOR brought SB 19 (CRIME OF CONSPIRACY) before the committee, and invited the prime sponsor, SENATOR HALFORD, to review the bill. SENATOR HALFORD explained the bill, which was also introduced last year, would make the crime of conspiracy a separate crime, and would drop the crime classification down one from the actual crime resulting from the conspiracy. He said it was a law enforcement tool, available on the federal level and in nearly every other state in the union. SENATOR DONLEY supported the concept of the legislation and had sponsored similar legislation in the past. He praised the work done on the concept in House Judiciary last year, in refining to more closely parallel some of the provisions of the Uniform Act. SENATOR DONLEY also gave credit to DEAN GUANELI, from the Criminal Division of the Department of Law, for providing him comfort for the concept of conspiracy, one of which was to add a provision making it was an affirmative defense if a law enforcement official was the only other person. Otherwise, he said, you have the potential for police officers creating the conspiracy, by offering to conspire with the perpetrator. Number 097 SENATOR DONLEY noted some additional provisions dealing with the issue of conspiracies creating multiple crimes, and he explained the language in the previous bill that solved the problem. Another change, he said, was to better define "overt act," and he gave an example of the definition. Additionally, SENATOR DONLEY worked on the duration of the conspiracy, and how it is terminated. He discussed language that had been developed previously, and noted the wording had been expanded since last year. SENATOR DONLEY concluded by describing testimony on how people could withdraw from a conspiracy. They originally agreed to a conspiracy, and how do they make it clear they don't want to have anything to do with it. Are they pulling out before the crime actually occurs, before the overt act? SENATOR DONLEY explained they had added a section on governing limitation actions, and adding some criteria for abandoning the conspiracy agreement. He said it would encourage people to come forward to warn society a conspiracy is taking place and to terminate their involvement. SENATOR HALFORD directed the drafter, JERRY LUCKHAUPT, to go through the bill. Number 187 MR. LUCKHAUPT reviewed the bill section by section, beginning with Section 1, Subsection (a), which defines "conspiracy" and "overt act." Subsection (b) explains guilt by association, and he gave an example to clarify the situation of multiple offenders. MR. LUCKHAUPT explained Subsection (c) outlines various situations which are not offenses to the crime of conspiracy. He said Subsection (d) provided an affirmative offense to the crime of conspiracy when dealing with a person for whose conduct the defendant is not legally accountable under AS 11.16.120(b). MR. LUCKHAUPT said (e) provides the withdrawal discussed previously by SENATOR DONLEY, affirmative defenses for a person withdrawing from the offense, and sets forth the process of withdrawing from the crime. Subsection (f) lists the penalty provisions depending on the level of crime being conspired, and stepping down one felony classification. He gave an example to provide definition to "serious felony offense" in Subsection (g). Number 260 MR. LUCKHAUPT summarized Sections 2, 3, and 4 as being technical amendments to recognize conspiracy as being similar to solicitation and attempts to commit offenses. He said Section 5 is basically a technical amendment setting forth the penalty for conspiracy. SENATOR LITTLE clarified there was no provision in the bill for a police officer being the second person involved in a two person conspiracy. MR. LUCKHAUPT said he did not hear the explanation by SENATOR DONLEY, and suggested that MR. GUANELI could give a better answer. SENATOR DONLEY asked if the points he raised were resolved in case law. MR. GUANELI said there was no prohibition against the second person in a conspiracy being a police officer. He explained he was not familiar with the House Judiciary version of the previous conspiracy bill, but he shared his opinion about peace officers being the second person in a conspiracy. MR. GUANELI outlined cases that would be assisted by the conspiracy law: murder, kidnapping, arson, and drug cases. He explained that some cases such as sexual abuse and rape are rarely subject to conspiracy prosecution. He thought it would be rare in drug offenses to have a police officer be a party to a conspiracy, because it would be stopped before the sale or transfer. With respect to murder cases, the police might want to stop that offense before an attempt takes place, and he gave a plausible example. Number 356 SENATOR HALFORD continued with MR. GUANELI'S example, which he claimed would not work. They worked on a different example. SENATOR DONLEY explained the provision was to address an overt act being committed by the police officer. MR. GUANELI thought that fewer problems are probably caused by officers committing overt acts than would be created by eliminating police officers as second person candidates in a conspiracy. SENATOR DONLEY expressed concerns at the entrapment when the officer is the co-conspirator, and MR. GUANELI agreed, but said that law wouldn't be changed with that bill. He claimed the state would still have the burden of proving the entrapment did not occur. SENATOR HALFORD expressed his concerns with their example and entrapment. Number 397 SENATOR DONLEY was still troubled with having a third party, who was not an active conspirator, and he explained his concerns about the theory of conspiracy, the intent, and the act. He debated the true co-conspirator as opposed to the person who is doing the intent but not the act. Number 407 MR. GUANELI said he viewed the elements of the crime as written in the bill as the intent, and the act would be the agreement between two people. In addition, he discussed how the offense would transpire. SENATOR TAYLOR suggested it might be difficult to establish before a jury that the officer was the one doing the overt act, and it might be a weak case. SENATOR TAYLOR led a continuing discussion with the committee and MR. GUANELI of overt acts, conspiracy, police officers as co-conspirators, possible abuses, entrapment, murder, intimidation, enticement, and frustration. SENATOR HALFORD said he would like to leave the problem of "overt act" open for further discussion, and SENATOR DONLEY thought it should be done in a cautious manner. He played the "devil's advocate" to present the other side. Number 531 SENATOR TAYLOR invited C.E. SWACKHAMMER, from the Department of Public Safety, to testify on SB 19. MR. SWACKHAMMER spoke for all of Public Safety in support of the conspiracy bill, and he noted a couple of points that paralleled general statutes. He said it would allow Public Safety a tool to reach participants in crimes, they are not presently able to reach. He described the example of a case involving a substantial amount of drugs and many participants, but without the conspiracy tool, they were unable to pull everyone together. MR. SWACKHAMMER explained the legislation would assist in trials with multiple defendants, where the defendants are severed and the jury never hears the total story - only pieces. SENATOR DONLEY agreed with the problems outlined by MR. SWACKHAMMER, and he noted some progress in bills from last year. SENATOR TAYLOR announced SB 19 would be held in committee. He noted that DEBORAH GRAVO, and RAY BROWN in Anchorage had comments, and he invited them to try again when the bill is re-scheduled.