Legislature(1995 - 1996)
04/21/1995 08:30 AM House FIN
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* first hearing in first committee of referral
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HOUSE FINANCE COMMITTEE
April 21, 1995
8:30 A.M.
TAPE HFC 95-90, Side 1, #000 - end.
TAPE HFC 95-90, Side 2, #000 - end.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 8:40 a.m.
PRESENT
Co-Chair Hanley
Co-Chair Foster Representative Martin
Representative Brown Representative Navarre
Representative Grussendorf Representative Therriault
Representative Kelly
Representative Kohring
Representatives Parnell, and Mulder were absent from the
meeting.
ALSO PRESENT
Representative Con Bunde; Laurie H. Otto, Deputy Attorney
General, Criminal Division, Department of Law; Jerry
Luckhaupt, Legislative Legal Counsel, Legislative Affairs
Agency; Barbara Brink, Public Defender Agency, Department of
Administration.
SUMMARY
HB 38 An Act relating to criminal sentencing; relating
to the availability for good time credit for
offenders convicted of certain first degree
murders; relating to mandatory life imprisonment,
parole, good time credit, pardon, commutation of
sentence, modification or reduction of sentence,
reprieve, furlough, and service of sentence at a
correctional restitution center for offenders with
at least three serious felony convictions; and
amending Alaska Rule of Criminal Procedure 35.
CSHB 38 (JUD) was reported out of Committee with
and with four fiscal impact notes; one by the
Alaska Court System; one by the Department of Law;
and two by the Department of Administration, dated
3/22/95; and with two zero fiscal notes; one by
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the Department of Corrections; and one by the
Department of Public Safety.
HOUSE BILL NO. 38
"An Act relating to criminal sentencing; relating to
the availability for good time credit for offenders
convicted of certain first degree murders; relating to
mandatory life imprisonment, parole, good time credit,
pardon, commutation of sentence, modification or
reduction of sentence, reprieve, furlough, and service
of sentence at a correctional restitution center for
offenders with at least three serious felony
convictions; and amending Alaska Rule of Criminal
Procedure 35."
REPRESENTATIVE CON BUNDE, SPONSOR spoke on behalf of HB 38.
He explained that the legislation provides a definite term
of imprisonment of 40 to 99 years for a specific group of
offenders who have two separate prior class A or
unclassified felony convictions. Under the legislation
discretionary parole and good time sentence reductions are
not available to these offenders. However, HB 38 allows
those sentenced to a definite term of 40 to 99 years to ask
the court for a reduction in sentence after they have served
the greater of one half of the definite term or 30 years.
He maintained that the proposed legislation gives
prosecutors some discretion in the decision to pursue third
strike sentencing. He observed that the provision will
allow the prosecutor some flexibility to proceed with the
normal presumptive sentencing provisions when necessary. He
acknowledged that there are costs associated with keeping a
person incarcerated for an extended period of time. He
asserted that the legislation was drafted to keep the costs
to a minimum. He emphasized that strong punishments can
deter crime. He maintained that the legislation can help
make the state a safer place to live.
In response to a question by Representative Grussendorf,
Representative Bunde clarified that convictions in other
states would be counted if the conviction qualifies under
the offenses listed and was in the recent past.
LAURIE OTTO, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW responded to a question by Representative
Therriault. She explained that multiple instances of lesser
offenses would not kick an offender to a higher felony
count. She referred to page 7, lines 1 - 3, which defines
"most serious felony" as any unclassified or class A felony,
or an attempt or conspiracy to commit those crimes. She
observed that a person charged with attempting to commit a
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class A felony, which is a class B felony, could trigger the
provisions of the legislation.
Representative Grussendorf observed that the Department of
Law will have the discretion to seek sentencing. Ms. Otto
pointed out that attorneys' ability to exercise discretion
differs. She felt that the provision for discretion is an
improvement to prior legislation.
Representative Brown asked the definition of criminal
solicitation under AS 11.31.110. Ms. Otto explained that
criminal solicitation refers to the act of trying to get a
person to commit a crime.
In response to a question by Representative Brown,
Representative Bunde noted that the legislation differs from
prior legislation (HB 334, introduced in the 18th
Legislature) by changing the mandatory sentence from 30 to
99 years, to 40 to 99 years. He observed that the average
sentence currently served for a third felony conviction is
12.5 years. Ms. Otto added that the elimination of good
time accounts for the difference of time served. She
pointed out that good time allows supervision after release
and helps to control behavior during custody.
Representative Brown referred to HB 219. Mr. Bunde
clarified that parole of terminally ill prisoners under the
provisions of HB 219 would supercede the provisions of
mandatory sentencing under HB 38. Ms. Otto explained that a
prisoner can apply for modification of sentencing after one
half of the sentence or 30 years, whichever is greater, is
served.
In response to a question by Representative Navarre, Ms.
Otto explained that an amendment to guarantee that
provisions of medical parole would supercede mandatory three
strike sentencing cannot be included in HB 38 since HB 219
has not passed the legislature. She thought that the
provisions of medical release would apply.
JERRY LUCKHAUPT, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS
AGENCY stated that HB 219 was drafted with the intent to
apply not withstanding any other provision of law. He
agreed that it would be impossible to draft to a bill that
had not passed.
Representative Grussendorf noted that most offenders
sentenced under the legislation would be in their later
years.
Representative Brown observed that the legislation will be
costly. She asked if the Department of Law feels the
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legislation is necessary.
Ms. Otto prefaced her statements by stressing that the
current legislation is successful in narrowing the focus of
offenses and requiring sequential convictions. She
emphasized that the legislation will eliminate plea
bargaining for the offenses outlined. She stressed the cost
of taking these cases to trial. She provided members with
charts detailing serious felonies referred for prosecution,
misdemeanors referred for prosecution, the number of trials
and the amount of prosecutors from 1989 to 1995 (Attachment
1). She summarized that the use of plea bargaining has
enabled the Department to keep pace with substantial
increases in serious felonies and misdemeanors referred to
prosecution without an increase in prosecutors. She
maintained that the Department cannot handle the increase in
trial time without increased resources.
Ms. Otto stated that if there are additional resources to
put in to prosecution that she would choose to use the money
to try first degree robbery and first degree sexual assault
cases; and competently handle these cases instead of
channeling scarce resources into getting those that are
already receiving long sentences, longer sentences and being
forced to take these cases to trial.
In response to a question by Representative Martin, Ms. Otto
observed that the ban on plea bargaining was officially
lifted over a year ago. She noted that plea bargaining has
increased in the past four years. Representative Martin
expressed concern that plea bargaining is undermining
justice and encouraging more crime. Ms. Otto briefly
reviewed the recent use of plea bargaining. She observed
that the ban placed by former Attorney General Av Gross was
eliminated under Governor Hickel. She stressed that state
revenues are declining. She observed the cost of providing
public defenders and advocates, and court costs associated
with taking cases to trial. She agreed with Representative
Martin that the legislation will provide an incentive to
plea bargain lesser charges. She observed that offenders
will fight to prevent convictions on their second strike.
Ms. Otto agreed that these serious offenders need to be in
jail for a long time. She stressed that money is the issue.
Representative Bunde disagreed that plea bargaining will
increase. He stated that offenders will opt to have their
cases tried in hopes of convincing a jury. He maintained
that criminals commit crime knowing that they can plea
bargain to a lesser crime.
Co-Chair Hanley observed that offenders may try to plea
under an unclassified or class A felony charge.
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Representative Therriault summarized that the Department's
position is that the legislation represents a good idea, but
questions whether the state can afford the cost. He
expressed concern that state revenues cannot support the
cost of the legislation.
Representative Bunde questioned the accuracy of the fiscal
notes. He observed that there will be no cost to the
corrections system for the first twelve and a half years.
He emphasized that the old system does not work. He
maintained that it costs more money to allow criminals to be
on the street. He estimated that 5 to 6 people would fall
under the purview of the legislation.
Representative Therriault pointed out that there is a
potential huge impact to the criminal system at the end of
twelve and a half years. He stressed the need to balance
support of the legislation with fiscal reality.
Representative Martin suggested that the "greatest security
in the world is to be an Alaskan prisoner". He observed
that prisoners have great medical benefits, three meals,
recreational benefits, housing, clothing and shelter. He
asserted that the real cost is the "revolving door" and
crime on the street.
BARBARA BRINK, DEPUTY PUBLIC DEFENDER, ALASKA PUBLIC
DEFENDER'S AGENCY, ANCHORAGE testified via the
teleconference network. She stressed there is no
possibility of parole or good time allowed under the
legislation. She observed that HB 38 creates the most
severe penalty available in the state. She maintained that
the legislation will result in increased litigation. She
observed that anyone charged with a third strike will
definitely go to trial. She emphasized that these cases
will require the most skilled and experienced litigators and
most expensive attorneys. She stated that the legislation
will have an immediate impact. She noted that the Alaska
Judicial Council estimated that between 10 and 34 cases
could be charged. She observed that the Department of Law
estimated 10 to 15 cases a year could be charged under this
section. She suggested that the effect would be the same as
10 to 15 additional homicide cases a year.
(Tape Change, HFC 95-90, Side 2)
He added that prior convictions will also have to be
litigated to assure the validity of the two prior strikes.
She emphasized that some prior strikes could have occurred
in other states. She added that offenders will demand
trials on their first two strikes as well. She emphasized
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that 94 percent of current felony cases are resolved without
trial. She maintained that plea bargaining allows the
system to operate. She asserted that the system will
collapse without plea bargaining.
Ms. Brink referred to experiences of other states that have
initiated similar legislation. She maintained that every
state that has enacted third offense legislation has
consistently underestimated the impact on their criminal
justice system. She stated that in California one year
after a three strikes bill was adopted, less than 14 percent
of their felony cases are plea bargained. There is a
backlog in California of 740,000 cases. She stressed that
there has not been any evidence demonstrating a decrease in
the crime rate. Violent crimes have increased in
California. She asserted that more cases will be filed as a
result of the legislation.
Ms. Brink observed that the rate of violent crime fell 22
percent between 1980 and 1992, based on statistics by the
Federal Bureau of Investigations and the Bureau of Justice.
The rate is lower today than in 1993. In Alaska the violent
crime rate is approximately the same as in 1985.
Ms. Brink stressed that violent crime is increasing in
younger populations. She pointed out that the legislation
does not address the increase of crimes among younger
offenders. She observed that crime among offenders 35 years
of age and older has decreased dramatically.
Ms. Brink pointed out that in Washington state criminals
have shown a tendency to be more desperate or violent when
officers try to arrest offenders. She referred to an
article in the New York Times, 2/94, where a burglary
suspect became violent for fear of receiving a life sentence
under the third offense provision.
Ms. Brink suggested resources could be better spent. She
observed that the largest population of inmates are 18 to 24
years of age. She noted that the typical inmate is
uneducated with no high school degree. One third of all
inmates are unemployed when arrested. Most inmates are
raised by single parents. Most earn an annual income of
less than $10.0 thousand dollars. Half of all violent
offenders are under the influence of drugs or alcohol or
both when their offense was committed.
Representative Martin asked if statistics demonstrating a
decrease of serious crimes are the result of lowering crimes
through plea bargaining. Ms. Brink clarified that the
statistics are not altered by plea bargaining since they are
still classified as violent crimes.
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BRANT MCGEE, OFFICE OF PUBLIC ADVOCACY testified via the
teleconference network from Anchorage. He echoed the
remarks of Ms. Brink. He suggested that HB 38 would have a
dramatic fiscal impact. He estimated that each case would
equal three cases due to the prior convictions. He did not
think that the additional 5 lawyers identified in the fiscal
note would be sufficient to cover the cost of the
legislation. He added that the Alaska Court System would
also be dramatically affected.
Representative Bunde responded that legislation in
California and Washington states could not be equated to HB
38 because of the narrower scope of HB 38. He emphasized
the deterrent effect of the legislation. He asked if the
present system is working and what will be the cost of doing
nothing.
Representative Navarre asked if Representative Bunde would
support the financial cost of the legislation.
Representative Bunde stated that if the costs are documented
he would be willing to pay taxes to support the legislation.
Representative Brown compared categories of felonies
contained in HB 38 and HB 334 with Mr. Luckhaupt. They
summarized that HB 334, passed by the House in the
Eighteenth Legislature, narrowed the scope of legislation to
only include crimes against persons. He explained that HB
38 was drafted to adopt most of the amendments adopted by
the House for HB 334. He further explained that HB 38
dropped out attempts to commit class A offenses from HB 334.
He stated that the intent was to include actually committed
class A and committed and attempted unclassified crimes.
Representative Brown asked if all the crimes under AS 11
need to be included. Representative Bunde replied that he
did want to include promoting prosecution of a person under
the age of 16. Mr. Luckhaupt pointed out that crimes
against persons includes arson of an occupied structure.
Representative Bunde indicated that he would not object to
the exclusion of escape or misconduct involving a controlled
substance of the second degree.
Representative Martin MOVED to report CSHB 38 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. Representative Brown expressed
concern that further discussion was necessary. She pointed
out that the fiscal considerations are extreme. The total
cost of the first year's implementation would be
approximately $1.3 million dollars. She stated she did not
see the benefit which would be derived from the legislation.
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Representative Grussendorf spoke in support of the
legislation. He expressed his desire that the Department of
Law use discretion in its use of the provision. He
emphasized that the legislation is not the only answer.
A roll call vote was taken on the MOTION to move CSHB 38
from Committee.
IN FAVOR: Grussendorf, Kelly, Kohring, Martin, Therriault,
Foster, Hanley
OPPOSED: Brown
Representatives Parnell, Mulder and Navarre were absent from
the vote.
The MOTION PASSED (7-1).
CSHB 38 (JUD) was reported out of Committee with and with
four fiscal impact notes; one by the Alaska Court System;
one by the Department of Law; and two by the Department of
Administration, dated 3/22/95; and with two zero fiscal
notes; one by the Department of Corrections; and one by the
Department of Public Safety.
ADJOURNMENT
The meeting adjourned at 10:00 a.m.
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