Legislature(2001 - 2002)
04/03/2002 01:13 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 3, 2002
1:13 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 430
"An Act imposing a surcharge on fines imposed for misdemeanors,
infractions, and violations and authorizing disposition of
estimated receipts from that surcharge; and creating the
juvenile justice grant fund in order to provide financial
assistance for the operation of youth courts."
- HEARD AND HELD
HOUSE BILL NO. 396
"An Act relating to a surcharge on certain offenses for law
enforcement equipment."
- HEARD AND HELD
HOUSE BILL NO. 463
"An Act relating to juries; and providing for an effective
date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 430
SHORT TITLE:SURCHARGE ON FINES/JUV JUSTICE GRANT FUND
SPONSOR(S): REPRESENTATIVE(S)CROFT
Jrn-Date Jrn-Page Action
02/15/02 2284 (H) READ THE FIRST TIME -
REFERRALS
02/15/02 2284 (H) JUD, FIN
02/15/02 2284 (H) REFERRED TO JUDICIARY
04/03/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 396
SHORT TITLE:ALCOHOL OFFENSE SURCHARGE/EQUIPMENT FUND
SPONSOR(S): JUDICIARY BY REQUEST
Jrn-Date Jrn-Page Action
02/08/02 2183 (H) READ THE FIRST TIME -
REFERRALS
02/08/02 2183 (H) JUD, FIN
02/08/02 2183 (H) REFERRED TO JUDICIARY
02/22/02 (H) JUD AT 1:00 PM CAPITOL 120
02/22/02 (H) Heard & Held
MINUTE(JUD)
04/03/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 463
SHORT TITLE:INFORMED JURY
SPONSOR(S): REPRESENTATIVE(S)COGHILL
Jrn-Date Jrn-Page Action
02/19/02 2312 (H) READ THE FIRST TIME -
REFERRALS
02/19/02 2312 (H) JUD
02/19/02 2312 (H) REFERRED TO JUDICIARY
02/25/02 2392 (H) COSPONSOR(S): HAYES
04/03/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 430.
LeANN CHANEY
United Youth Courts of Alaska (UYCA)
PO Box 210189
Anchorage, Alaska 99521
POSITION STATEMENT: Testified in support of HB 430.
SHARON LEON, Executive Director
Anchorage Youth Court (AYC)
PO Box 102735
Anchorage, Alaska 99510-2735
POSITION STATEMENT: Testified in support of HB 430.
RUTH SANDSTROM, President
Board of Directors
Anchorage Youth Court
PO Box 102735
Anchorage, Alaska 99510-2735
POSITION STATEMENT: Testified in support of HB 430.
LISA ALBERT-KONECKY, Program Coordinator
Mat-Su Youth Court (MSYC)
290 East Herning Avenue
Wasilla, Alaska 99654
POSITION STATEMENT: Testified in support of HB 430.
ROBERT BUTTCANE, Legislative & Administrative Liaison
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: Testified in support of HB 430 and
recommended an amendment.
DEL SMITH, Deputy Commissioner
Office of the Commissioner
Department of Public Safety (DPS)
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 396.
IRL STAMBAUGH, Executive Director
Alaska Police Standards Council (APSC)
Department of Public Safety (DPS)
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Responded to questions during discussion of
HB 396.
TIM ROGERS, Legislative Program Coordinator
Municipality of Anchorage (MOA)
PO Box 196650
Anchorage, Alaska 99519
POSITION STATEMENT: Expressed concerns and responded to
questions during discussion of HB 396.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
820 West 4th Avenue
Anchorage, Alaska 99501-2005
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 396. Provided comments during
discussion of HB 463.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: As the drafter of HB 396, responded to
questions.
MATT WILLIAMS, Officer
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
4501 South Bragaw Street
Anchorage, Alaska 99507
POSITION STATEMENT: Provided comments during discussion of HB
396.
CHARLES KEY, Executive Director
Fully Informed Jury Association (FIJA)
1900 North MacArthur Boulevard, Suite 227
Oklahoma City, Oklahoma 73127
POSITION STATEMENT: Testified in support of HB 463.
LARRY PRATT, Executive Director
Gun Owners of America
8001 Forbes Place, Suite 102
Springfield, Virginia 22151
POSITION STATEMENT: Testified in support of HB 463.
NANCY LORD JOHNSON, M.D., J.D.; Member
Board of Directors
Fully Informed Jury Association (FIJA)
(Address not provided)
Pahrump, Nevada 89041
POSITION STATEMENT: Testified in support of HB 463.
DAVID C. BRODY, J.D., Ph.D.; Associate Professor and Coordinator
Criminal Justice Program
Department of Political Science
Washington State University Spokane
668 North Riverpoint Boulevard, Box B
Spokane, Washington 99202-1662
POSITION STATEMENT: Testified in support of HB 463.
JACK POLSTER, Member
Fully Informed Jury Association (FIJA)
1506 Ocean Drive
Homer, Alaska 99603
POSITION STATEMENT: Testified in support of HB 463.
RUDY VETTER
PO Box 70342
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified in support of HB 463.
FRANK TURNEY, Member
Fully Informed Jury Association (FIJA)
PO Box 70392
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified in support of HB 463.
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 506
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 463.
KEANE-ALEXANDER CRAWFORD
PO Box 70521
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified in support of HB 463.
MARY JANE OWENS
325 7th Avenue
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified in support of HB 463.
PATRICIA MICHL, J.D.; Member
Board of Directors
Fully Informed Jury Association (FIJA)
18024 17th Street East, Number 206
Sumner, Washington 98390
POSITION STATEMENT: Testified in support of HB 463.
THOMAS STAHL, Member
Board of Directors
Fully Informed Jury Association (FIJA)
(Address not provided)
Washington State
POSITION STATEMENT: Testified in support of HB 463.
SIDNEY K. BILLINGSLEA, Attorney;
President
Board of Governors
Alaska Academy of Trial Lawyers (AATL)
604 West 2nd Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in opposition to HB 463.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified in opposition to HB 463 and
responded to questions.
ACTION NARRATIVE
TAPE 02-40, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:13 p.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order.
HB 430 - SURCHARGE ON FINES/JUV JUSTICE GRANT FUND
Number 0128
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 430, "An Act imposing a surcharge on fines
imposed for misdemeanors, infractions, and violations and
authorizing disposition of estimated receipts from that
surcharge; and creating the juvenile justice grant fund in order
to provide financial assistance for the operation of youth
courts."
Number 0151
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor,
said that HB 430 would provide a stable source of funding for
"the youth court program," which has students doing the
prosecuting, defending, and judging of youthful offenders. He
continued:
They've found that the best way to deter youthful
offenders, particularly for the smaller, non-violent
"introductory" crimes, is to, in effect, embarrass
them in front of their peers - that the most
embarrassing thing that can happen to [an] 11- to 15-
year-old is being judged, not by their parents or
other adults, but by other teens. The program has
been remarkable successful; there's a very low
recidivism rate for offenders who go through it. It
is extremely cost effective, and the only problem has
been that it's been very difficult for them continue
and expand without a stable source of money. [House
Bill 430] provides a surcharge on certain crimes, the
types of crimes that could be covered under the youth
court itself, and uses that surcharge to fund the
courts as well as fund startup for youth courts in
other areas.
REPRESENTATIVE CROFT said that with HB 430, he wanted to ensure
that the money raised by the surcharges did not become the youth
courts' sole source of funding; he wanted each individual youth
court to continue its aggressive fundraising efforts, both in
the private sector and at the municipal level. Hence, funds
collected via the surcharge would be distributed as a matching
grant to match funds raised directly by the youth courts
themselves. He noted that the Anchorage Municipal Assembly has
approved a resolution supporting HB 430. He offered that in
times of budgetary constraint, there is an obligation, "if we're
going to propose increased expenditures, to [also] propose where
we're going to get those revenues."
REPRESENTATIVE MEYER expressed support for HB 430. He said his
concern, however, revolves around having to appropriate the
money each year: "someone is going to have to remember to do
that." He asked: "How do we make sure that this money gets
appropriated back to youth courts like we want it to?"
REPRESENTATIVE CROFT, after noting that the state does not have
dedicated funds, merely designated funds, said that HB 430 would
"be another of those." He noted that historically, the
legislature, although not constitutionally obligated to do so,
has always honored such intentions. That, coupled with vigilant
observation by the youth court, he surmised, would most likely
ensure that the [funding] did continue.
Number 0460
REPRESENTATIVE MEYER indicated that he agreed with that
observation. He added that the youth court program in Anchorage
has been very successful in helping to reduce "youth crime."
REPRESENTATIVE JAMES said:
I certainly am supportive of youth courts. I think
they've worked very well. ... [However], I've been
here for ten years listening to people figuring out
how to fund specific things, and I want to put it on
the record again that I was opposed to the designated
receipts program for the very reason that although it
is not dedicated funds, it really is dedicated funds.
And my problem with dedicated funds is, they are okay
as long as there is a direct relationship from where
they come from to where they're going, and that the
amount that's available - where they're coming from -
has a relationship to the amount you need. That's, I
think, what is critical in a dedicated fund. ...
I have a [real] problem with the attitude that if we
want to get more money, we just need to have more user
fees. Well, this isn't even a user fee; this is an
application of a "charge against a charge that a
person has had to pay" because they did something that
happens to be the same thing that the ... youth court
is dealing with, ... but there is not a relationship
between the money and that, at all. And so what
you're doing is putting a penalty on the people, who
are paying a fine, to take care of this. You could
argue, I suspect, that over the long term, you keep
these kids from being [criminals], ... [though] that's
kind of a reach on that issue.
But I can also tell you that tallying up and finding
these little pots of money to pay [for] specific
things over the long term may be problematic in the
legislative process, and we could do the accounting
without having it "designated or programmed" receipts.
And that was what I would have preferred. In some
cases I think user fees are fine, but when they get
excessive, which many of ours are, and then we don't
call them taxes, I think that's not fair.
REPRESENTATIVE JAMES concluded:
So, [I] just wanted to let you know where I stand on
those issues, ... [though] I'm not making any decision
on what I'm going to do on your ... piece of
legislation. I appreciate you bringing it forward and
trying to get some money to pay for the youth courts,
because I think it's important, but quite frankly I
think we all ought to pay. That's what's fair and
equitable; if we're benefiting, we should be paying
for that, and I think we are. And now we're not [with
HB 430].
Number 0667
LeANN CHANEY, United Youth Courts of Alaska (UYCA), testified
via teleconference in support of HB 430. She said:
This relatively new organization was incorporated in
1998 as a nonprofit, and is a resource to Alaskan
communities. The [UYCA] serves as a centralized
location to obtain training, technical assistance, and
informational materials on how to start and maintain a
youth court. There are 15 youth court programs in
operation, with over 950 youth who volunteer over
27,000 hours statewide, adjudicating over 900 criminal
cases annually. Juvenile defendants earn and pay over
$14,500 in restitution to victims, and work over
15,000 community-service hours. Studies indicate that
early intervention can effectively prevent more
serious violations from occurring in the future.
As reported by the Coalition for Juvenile Justice
[CJJ], prevention saves lives and money: for each
child prevented from beginning a life of crime,
taxpayers save as much as $2 million. There is an
urgent need for the legislation to provide support to
these innovative programs across Alaska. Processing a
case through youth courts and other informal
dispositions costs significantly less than processing
a case through the formal juvenile justice system
[JJS]. These programs are a high-impact, low-cost
alternative for early offenses, and provide immediate
consequences for misdemeanor crimes that are otherwise
low priority within the heavily burdened juvenile
justice system. The state of Alaska will benefit more
by providing a stable funding source for youth courts
and other informal dispositions, by passing [HB 430].
Thank you.
Number 0783
SHARON LEON, Executive Director, Anchorage Youth Court (AYC),
testified via teleconference in support of HB 430. She said:
We appreciate this opportunity to testify about
providing a positive solution to a statewide concern
for organization and [for] sustained youth court
operating funds, and for funds for the other informal
dispositions in which youth actively assist in
adjudicating their peers, like the new tribal models
that are being organized. And I wanted to speak to
you from the perspective [that] AYC is the oldest
youth court in the state; we were founded in 1989 on
the premise that if teens are influenced by negative
peer pressure, they can also be influenced by positive
peer pressure. And it's worked: ... 89.9 percent of
those who complete the court obligations ..., at the
last recidivism check, had not reoffended. And AYC is
the model for ... most of the other urban Alaskan
youth courts that were later founded.
Actually, AYC largely existed through support of the
legal community ... [via] small donations until 1996,
and we almost closed twice during that time, so we
always operate pretty close to the margin. But our
caseload grew exponentially in 1996, from about 20
cases a year to 400 or more, and that's when juvenile
crime was really rising and became a serious issue
here in Anchorage. The cost to operate the program
actually also rose, of course, but not nearly as high
as the caseload did. Since that time, the
municipality has provided $115,000 annually, and
that's about 41 percent of AYC's budget. But we have
been put on notice that they cannot continue
supporting [the] AYC at this level, but operating
funds are the hardest to come by.
Most granting agencies want to fund special projects
or new projects; we're not a new project anymore, so
AYC has worked really hard to raise its fundraising,
through donations and small grants, to about 29
percent of its budget. [The Division of Juvenile
Justice (DJJ), Department of Health & Social Services
(DHSS)] and [the] United Way provide an additional 22
percent together, and student case and class fees
raise the final 8 percent. In trying to be creative
and positive, we youth courts have suggested actually
two additional possibilities: the one that's before
you today [HB 430] and then the possibility that
jurors in Alaska's courts could have the option of
donating their fees to youth courts - and this does
happen in Odessa, Texas; there is precedent for it.
Number 0972
MS. LEON continued:
But today we stand ... before you to ask [you] to help
utilize [this] opportunity to ensure that youth
throughout the state can continue to help reduce crime
and form a lifelong pattern of good citizenship.
That's something that usually isn't talked about;
everybody is really interested in reducing crime, but
we also have a whole cadre of youth, throughout the
state, who are doing positive things, and this [HB
430] can help them do that. ...
For instance, there was a student who came back last
year. He's gone off to college now, and when he
visited me in the summer he said, "You know, Sharon, I
never thought I'd be using this stuff again, but my
friends have come to me and said, 'Oh, we're going to
go out and do this thing or that thing.'" And he's
said, "Well, if you're smart, you won't do it, and I'm
sure not going to, because it's a class three or a
class four misdemeanor." And raising awareness of all
of the youth in Alaska and helping them to be good
citizens and increase the public safety is exactly
what I think [HB 430] will go a long way to doing.
CHAIR ROKEBERG asked whether defendants that come before the
[youth] court pay any fees.
MS. LEON said yes, adding that since 1996, defendants have paid
$50 each to come to youth court, though that is just a part of
the fees that defendants pay; defendants also have to pay $35 if
they go to "juvenile anti-shoplifting," and $110 if they go to
"drug and alcohol assessment." She said the students and the
adult board members felt that since the goal is to make the
youths responsible for their actions, the fee ought to be an
amount that they could earn themselves, and even the youth who
go through the program say that $50 is a fair amount. She noted
that the AYC raises about $18,000-$20,000 a year through such
fees.
Number 1095
RUTH SANDSTROM, President, Board of Directors, Anchorage Youth
Court (AYC), testified via teleconference in support HB 430.
She indicated that through her involvement in the AYC during the
past six years, she has gotten to know some of the students and
considers them to be incredibly talented. She said that as a
tax payer and a trained accountant, she can confidently say that
the return on investment for the AYC is well worth it. She,
too, remarked that the "cost of a lifetime criminal is ...
[approximately] $2 million," adding that [incarcerating a child
for] just one year in the McLaughlin Youth center costs
approximately $40,000. She concluded: "If we can keep one or
two kids out of those institutions, we can save money down the
road; ... we can't afford to not fund these sorts of
organizations."
Number 1172
LISA ALBERT-KONECKY, Program Coordinator, Mat-Su Youth Court
(MSYC), testified via teleconference in support of HB 430. She
noted that similar legislation was introduced four years ago [at
the request of] the founder of the MSYC, Jim Messick, who passed
away last summer. She added: "His legacy remains in [HB 430];
his intention was to have adult misdemeanants help pay for a
program that helps juvenile misdemeanants stop their errant
ways." She mentioned that the concerns that she hears about
pertain to money, and that "the Valley" (Matanuska-Susitna
valley) supports the MSYC in several different ways; the use of
Wasilla's City Hall has been volunteered, and several attorneys
have volunteered their time. The students, however, "are the
ones who keep the program going," she noted.
MS. ALBERT-KONECKY remarked that any money provided through HB
430 is not going to solve all of the MSYC's [monetary] problems;
the MSYC will continue to seek funds from other sources in the
community. She mentioned that she used to work at the
McLaughlin Youth Center, and indicated that she really believes
in the youth court program because it focuses on prevention
rather than merely on treatment after the fact. "I believe that
this small piece of the pie - [HB 430] - would help ... youth
courts all over the state," she concluded.
Number 1311
ROBERT BUTTCANE, Legislative & Administrative Liaison, Division
of Juvenile Justice (DJJ), Department of Health & Social
Services (DHSS), said that the DHSS supports HB 430. He
elaborated:
I will echo that we do believe in the efficacy of
youth courts; they have been a significant part of the
change process that has taken place [in] juvenile
justice over the last four or five years. I would
have ... one recommendation in Section 6: the bill
would establish a juvenile justice grant fund in the
Department of Commerce and Economic Development, and I
would recommend the committee and the sponsor consider
amending that, to put that juvenile justice grant fund
under the Department of Health & Social Services.
[For the benefit of the reader, Section 6 actually refers to AS
44.47, which pertains to the repealed Department of Community
and Regional Affairs. And what was formerly known as the
Department of Commerce and Economic Development - AS 44.33 - is
currently called the Department of Community and Economic
Development.]
MR. BUTTCANE continued:
We have a number of similar grants that we administer
and, in support of youth court activities, we've got
in place an infrastructure network that would allow us
to administer grant funds without any additional
expense or cost to the state. And it just brings the
grant-fund source closer to the beneficiary of such
grant funds.
Next, I would also point out that the department has
submitted a fiscal note for this piece of legislation
based on numbers that we have obtained from the Alaska
Court System [ACS]: on a surcharge of $10, it is
estimated that it is possible to raise revenues in the
amount of about $300,000. Again, the bill would make
those monies available to start up youth court
operations or to maintain current or existing youth
courts. We currently have about 33 different
partnerships with localities around the state, and
about half of those are youth court programs that
would be beneficiaries of this program. So we are in
favor of this, and I would be happy to answer any
questions if you have them.
Number 1429
CHAIR ROKEBERG, after noting that there were no questions at
this time, announced that the public hearing on HB 430 would be
held open and that HB 430 would be held over.
HB 396 - ALCOHOL OFFENSE SURCHARGE/EQUIPMENT FUND
Number 1448
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 396, "An Act relating to a surcharge on
certain offenses for law enforcement equipment." He mentioned
that the committee would also be hearing about some of the
problems related to surcharges in general.
Number 1467
DEL SMITH, Deputy Commissioner, Office of the Commissioner,
Department of Public Safety (DPS), pointed out that there is a
surcharge that funds the Alaska Police Standards Council (APSC),
and [that this surcharge] has been in place since 1995.
Initially, there was some money from the general fund (GF) that
went to support the APSC, and the surcharge from various crimes
and convictions was used to provide additional training. As
time has passed and the money has become "tighter," the general
funds have been reduced, so that now the entire staff and the
training is funded by the "police surcharge." He remarked that
this follows a national pattern wherein the staffing of police
standards programs and the training they provide is being funded
by surcharges. He noted that on at least one occasion in the
past eight years, the amount of a surcharge has been increased
from what it was initially.
MR. SMITH said that although he is not opposed to surcharges per
se, he is concerned that "we sort of seem to be piling on
surcharges for various and sundry events." And while he is not
opposed to acquiring equipment for law enforcement, he said, at
this point in time, because of problems encountered by the
Alaska Court System (ACS) in collecting and tracking fines and
surcharges, the DPS is not sure who is responsible for "which
particular slice of the pie," and so adding one more surcharge
might simply create more of a problem. He did note, however,
that it is his understanding that in the near future, the ACS
will be gaining the proper technology with which to "slice that
pie and figure which surcharges came in" so that the money can
then be properly distributed.
MR. SMITH noted that HB 396 does not currently contain a
mechanism by which the surcharges collected could be distributed
to various law enforcement agencies. He opined that such a
mechanism should be in place, rather than just having "everybody
fighting over the money on [a] yearly basis and trying [to] get
the legislature to appropriate for their particular desires."
He noted that the APSC currently utilizes [a mechanism] to
decide how the surcharge monies, which are used for training
purposes, are distributed. He remarked that although HB 396 is
a worthy bill, he is opposed to implementing it until "we have
better handle, at the [Alaska] Court System, about who's paid
what and where that money would ultimately go." More time needs
to be spent figuring out the disbursement process, he opined.
Number 1657
CHAIR ROKEBERG, after acknowledging that HB 396 doesn't really
have a proper disbursement mechanism, asked whether it would be
possible to disburse [surcharge monies] on a per-capita basis.
MR. SMITH said that there probably are various schemes that
could distribute those funds fairly; however, that issue has not
yet been addressed in HB 396.
CHAIR ROKEBERG, referring to how the APSC currently works, asked
whether there is just one set of training programs that
everybody attends, or if there are different programs for
different jurisdictions.
MR. SMITH indicated that according to his understanding:
A certain amount of money comes in and obviously the
police standards apportion goes toward the operation
of that; they do provide some money for basic training
for law enforcement - putting (indisc.) municipal
officers through the [Alaska Law Enforcement Training
(ALET) Program] in Sitka and also the [University of
Alaska Fairbanks Tanana Valley Campus Law Enforcement
Academy] that has come on line recently. Additional
funds are then directed toward advanced training; they
do not fully fund any agency, that I'm aware of, for
basic training for law enforcement officers, [because
there] simply is not enough money to do that. So,
their decisions have to be made; there's more demand
than there is money and, as a group, they make those
decisions about how they're going to portion out that
particular amount for that year.
CHAIR ROKEBERG asked how [a police] department does its training
budget if it has to rely on estimates of incoming surcharges.
MR. SMITH explained that the departments, in advance, let the
director of the APSC "know of their desires for funding, and he
- through the council - advises them of what they could
anticipate would be available to meet those needs."
CHAIR ROKEBERG asked of the APSC's executive director whether he
sees any potential problems with HB 396, whether he has any
recommendations for fixing such problems, and how he envisions
either this particular surcharge or any other surcharge working,
given the current collection and disbursement system. He added
that "if we were to focus on one clearinghouse, that might at
least keep the accounting and the paper trail a little bit
better."
Number 1761
IRL STAMBAUGH, Executive Director, Alaska Police Standards
Council (APSC), Department of Public Safety (DPS), said the
problem is that previously, and currently, collecting and
disbursing surcharge monies is very difficult because of the
ACS's current computer system. He estimated that "we are
probably only collecting 60 percent of the money we should be
collecting," because of the problems with the current collection
process. He elaborated:
There's no way to send it forward for collections on
[permanent fund dividends (PFDs)], or any way at this
point, because of the computer problems, to even send
it forward to the [Department of Law (DOL)] for any
form of collections.
CHAIR ROKEBERG remarked that the DOL now has a collections unit
and it is just getting geared up. He asked whether the APSC
could access that system.
MR. STAMBAUGH said that was not possible due to the ACS's
current computer system. He posited that once the ACS gets its
new computer system in place, the collection of surcharges
should increase and the ability to track those monies should
improve.
CHAIR ROKEBERG mentioned that since currently there is only one
surcharge, if any other surcharge is adopted, it will increase
the level of complexity.
MR. STAMBAUGH concurred, and said that it would then be very
difficult, with the ACS's current computer system, to separate
the funds in any fashion.
Number 1870
CHAIR ROKEBERG asked Mr. Smith to give the committee an idea of
what he thinks fines are all about.
MR. SMITH said:
I believe, like any discipline, it is a punishment ...
to make a person decide that that is not behavior they
should engage in, in the future. You run the gamut -
or continuum, if you will - of a verbal warning by a
police officer for violating the speed limit, to
getting a citation, to perhaps going to jail. All
predicated and dedicated to the proposition that with
the appropriate level, you will not engage in this
activity again.
CHAIR ROKEBERG, for comparison's sake, asked what a surcharge
does. Does it "just raise the fine?"
MR. SMITH concurred that that is basically what it does,
without, however, specifically saying that the fine is being
raised. He acknowledged that simply raising the fines would be
another approach; then the legislature could simply appropriate
part of that money back to whatever program it desired to fund.
"The surcharge is another way to get there," he added.
REPRESENTATIVE JAMES, referring to when the fines and surcharges
are paid, asked whether the surcharges were accounted for
separately on the receipt.
MR. SMITH said ideally, that's supposed to be what's occurring,
although it may not actually be happening on a regular basis, as
a practical matter, due to problems at the collection point. He
mentioned that he has heard of offenders who, although they
agree to pay the fine, refuse to pay the surcharge; he opined
that that should "not clear that particular offense," but he is
not entirely sure whether payment of the surcharge is pursued in
those cases.
Number 1960
REPRESENTATIVE JAMES said, "I'm aghast that any agency of the
state would collect money and not [issue] ... a receipt that
[shows] what it's for," regardless of whether the amount owed is
fully paid. She opined that the opportunity to tally [those
funds] should be available somewhere, since people receive
receipts for what they pay.
MR. SMITH said he assumes that people do get receipts.
CHAIR ROKEBERG suggested that perhaps this line of questioning
would be more properly directed at the ACS representative. He
mentioned that an article he'd read indicated that the state of
Georgia is $3.2 million behind in its collections [of
surcharges]. He opined that much of the problem, which many
states are experiencing, probably stems from the fact that many
offenders cannot pay all of their fines and surcharges at once
and so that leads to problems with tracking and collection.
REPRESENTATIVE MEYER asked how many fines actually get paid, and
whether HB 396 would allow the state to garnish offenders'
permanent fund dividends (PFDs) in order to collect the
surcharge.
MR. SMITH pointed out that the problem with collecting
surcharges by garnishing PFDs is that "we can't go after
somebody unless we're sure they didn't pay" the surcharge.
REPRESENTATIVE MEYER noted that HB 396 is also known as the
Justin Wollam Act, and said he believes that the Anchorage
Police Department (APD) and Mothers Against Drunk Driving (MADD)
would like to see the [surcharge] implemented. He opined that
collection of the surcharge should not be too difficult, and
said he hopes that they can work through any collection
problems.
Number 2064
TIM ROGERS, Legislative Program Coordinator, Municipality of
Anchorage (MOA), said that although the MOA certainly
appreciates the intent of HB 396 and understands that there are
members of the APD who strongly support it, the MOA does have
some concerns regarding local control. He pointed out that
currently, DUI [driving under the influence] offenders are
arrested by Municipality of Anchorage Police Department
employees, and are prosecuted with municipal prosecutors under
municipal codes. However, according to HB 396, the surcharge
collected by such municipal cases must be paid to the state,
without any guarantee that those funds would go back to the MOA
for the acquisition of equipment. He said that the MOA believes
it would be much better if "this issue" was left up to the local
municipalities that have taken the burden off of the state in
terms of prosecuting DUI offenders.
REPRESENTATIVE JAMES said she likes that idea.
REPRESENTATIVE MEYER said he does too. He asked whether any
enabling legislation would be needed in order to make that
option available to municipalities.
MR. ROGERS said he did not think that enabling legislation would
be necessary, but added that the issue ought to be researched
more thoroughly.
REPRESENTATIVE JAMES said that although she likes that idea, it
only solves that aspect of the problem for Anchorage and similar
municipalities, and does not address any of the other issues
pertaining to surcharges in general.
REPRESENTATIVE MEYER said he would like to know how many DUI
cases come from the Anchorage and Fairbanks areas, adding that
he would think it would be about 75 or 80 percent of all such
cases.
REPRESENTATIVE JAMES indicated that Representative Meyer's
estimate gives her a little more comfort regarding having a
local surcharge as opposed to a statewide surcharge.
Number 2207
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that any rudimentary accounting software would be
able to keep track of how much money has been paid versus how
much money is owed, as well as who owes money and who doesn't.
The trouble is that the ACS doesn't have accounting software;
what the ACS utilizes is an antiquated computer system that was
[designed] to do case statistics. He said that the ACS has
"tried to cobble it to together as best we can to do some type
of accounting, however, our current system cannot keep track of
who has paid a surcharge [and] who has not paid a surcharge."
Because of these limitations, he explained, the ACS cannot
transfer to the Department of Law for collections any
information regarding surcharges still owed because the ACS
cannot tell whether any given individual has not yet paid a
surcharge.
MR. WOOLIVER said that statute does give the state the authority
to go after PFDs for surcharges owed, but that cannot be done at
this time because of the aforementioned problems. He noted that
the ACS has received funds for a new computer system that will
allow the ACS to separately track "as many surcharges as you
have the imagination to come up with," and will allow the ACS to
transfer information to the DOL for the purpose of collecting
money owed from PFDs. However, because this new computer system
is not yet in place, there is a stumbling block both to
maintaining separate accounting for various types of surcharges
and to collecting the surcharges currently in place.
REPRESENTATIVE JAMES asked how long it will take [to get the new
system running].
Number 2273
MR. WOOLIVER said:
We have a vendor; we went through a lengthy
procurement process. Starting, hopefully, in June
we'll have all the software built with the vendor.
It's going to be in a trial program in Palmer ...;
that program lasts about three months, where we work
out all of the bugs. And then hopefully by the fall
or early winter, we'll start expanding it around the
state. We'll start with Anchorage, assuming that
everything is working along, and by this winter,
anyway, we should have that system working, at least
in Anchorage. And then we have a timeline of two
years to try [to] expand it, one court at a time,
around the state until all our courts are online with
our new computer system. That's our current timeline;
we have the funding to do it, and we start, hopefully,
... this summer.
CHAIR ROKEBERG, after noting that [the ACS] had recently
received $2 million for that project, asked whether [the ACS]
anticipates needing more funds to complete it.
MR. WOOLIVER said he did not believe that [the ACS] would need
additional funds for that.
CHAIR ROKEBERG mentioned that the ACS is "kind of the lynchpin
of the entire system," and so the aforementioned new computer
system is necessary in order to be able to focus on collections.
He surmised that even if this legislation, or any other
legislation pertaining to surcharges, is adopted, the ACS is
currently unable to efficiently collect or track such funds.
MR. WOOLIVER concurred, but offered that that situation should
change by this winter, at least in the Palmer and Anchorage
areas, if the pilot programs are successful.
TAPE 02-40, SIDE B
Number 2371
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, in response to a question, explained that the problems
created by the ACS's antiquated computer system have been there
since the first "surcharge bill" was enacted. He opined that
the problem of being unable to differentiate among varieties of
surcharges will remain even when the new system is in place. He
noted that [all across the country], surcharges have become a
favorite way to "pile a little cost on."
CHAIR ROKEBERG asked how surcharges should be accounted for
[with regard to collecting, tracking, and distributing].
MR. LUCKHAUPT observed that that issue is rather difficult to
address because surcharges involve the concept of dedicated
funds, which are not allowed by the Alaska State Constitution.
He then listed some examples of the kinds of surcharges and
assessments that other states have, adding that surcharges range
from paying into victim's compensation funds to "surcharges for
brain injuries." He observed that the courts [in those states]
are not able to keep track of all those different surcharges,
nor are they able to collect either the surcharges or the fines,
which provide basic support for the criminal justice system, are
the general deterrents to criminal action, and are the
punishments for the criminal offenses.
CHAIR ROKEBERG mentioned having read an article indicating that
victims are being awarded funds before those funds are even
collected, "so they're running a deficit in their crime victim's
compensation accounts."
MR. LUCKHAUPT concurred. He noted that there has been mention
of having the monies from the surcharge proposed in HB 396
distributed automatically on a per capita basis, though that,
too, involves the concept of dedicated funds, which, again, are
not allowed. He also noted that even if the monies from this
surcharge are incorporated into the existing "law enforcement
training surcharge fund," the legislature would still have to
appropriate those monies out of that fund; those monies could
not just automatically go out to the municipalities because,
again, that would involve creating a dedicated fund.
Number 2145
MATT WILLIAMS, Officer, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), testified via teleconference.
He remarked that the APD is also in favor of local control, as
suggested by Mr. Rogers, since the vast majority of [DUIs] are
charged under the municipal code and prosecuted with municipal
prosecutors. He explained, however, that the Anchorage police
chief, Walt Monegan, unlike Mr. Rogers, is under the impression
that enabling legislation would be needed in order to give
municipalities the ability to establish a surcharge for the
purpose of purchasing law enforcement equipment. He said that
the APD is in favor of having the APSC be responsible for
allocating the monies collected via HB 396.
MR. WILLIAMS pointed out that although quite a bit of the
discussion thus far has focused on training and the role of the
APSC, HB 396 does not have anything to do with training:
instead, HB 396 focuses on collecting funds to purchase
equipment that would assist law enforcement agencies in fighting
alcohol-related crime. He opined that in addition to assisting
law enforcement officers, a lot of the equipment that would be
purchased with HB 396's surcharge monies could also shorten the
time and frequency, and therefore the expense, of going to
trial, because better evidence will be collected. With regard
to the amount of the surcharge proposed in HB 396, he offered
that the APD does not feel that $100 is too much. People who go
out drinking often spend $100 very quickly, he observed;
therefore, if people can afford to spend $100 on alcohol, they
can afford the surcharge, and if for some reason they can't,
there is the option of performing community work service. He
asked the committee to continue its work on HB 396 so that the
bill can become an effective law.
CHAIR ROKEBERG announced that HB 396 would be held over.
HB 463 - INFORMED JURY
Number 2001
CHAIR ROKEBERG announced that the last order of business would
be HOUSE BILL NO. 463, "An Act relating to juries; and providing
for an effective date."
Number 1982
REPRESENTATIVE COGHILL, speaking as the sponsor, explained that
HB 463 addresses the role of the jury and what has come to be
known as "jury nullification." He relayed that Section 3 of the
[Alaska Statehood Act] says, "The constitution of the State of
Alaska shall always be republican in form and shall not be
repugnant to the Constitution of the United States and the
principles of the Declaration of Independence"; that the
Constitution of the United States starts out with the words, "We
the People"; and that the Declaration of Independence states,
"[all men ...] are endowed by their Creator with certain
unalienable Rights," which, he inferred, included forming
governments "for justice and for the various other things that
were declared." He opined that in order to bring [about] a
republican form of government, "we want a constitution, and we
want the people to have the right to maintain their government,"
adding that there were several ways to accomplish that: "we do
it by voting; we do it through referendums; [and] we do it
through this legislative body, the judicial body - through the
three branches of government."
REPRESENTATIVE COGHILL then remarked, "We also have the people
having the right to, really, judge the law, if you think about
it." Quoting from the Declaration of Independence, he said:
"... Men, deriving their just powers from the consent of the
governed, ... it is the Right of the People to alter or abolish
it...." He observed that "the way we stay engaged, quite often,
is through the jury process." He said that via HB 463, he is
asking that Alaska consider the proposition that the jury is the
exclusive judge of the facts, that a jury may determine not to
apply the law to the defendant under the condition that the
jurors feel the law "is unjustly applied," that the defendant
has the right to inform the jury of that particular right, and
that - per statute - the court allow the defendant to do so. He
noted that HB 463 has some safeguards built in: for example,
the state may rebut the evidence, it only applies to an action
tried [by] a jury, and a juror can't be excused if he/she is
willing to exercise his/her "powers." Representative Coghill
said that HB 463 is coming from [his] deep-seated belief that
"our constitution" needs continual maintenance and protection.
Number 1816
CHARLES KEY, Executive Director, Fully Informed Jury Association
(FIJA), testified via teleconference in support of HB 463.
After mentioning that he was an Oklahoma State Representative
from 1986 to 1998, he noted that he'd proposed similar
legislation in Oklahoma. He said that HB 463 is important
because it allows the citizens on a jury panel to fully exercise
and understand their role and responsibility when serving. He
remarked that the history of jurors' rights is very well
established and [those rights have] been affirmed by federal and
state courts time and time again in various decisions and
statements.
MR. KEY said:
The benefits of the jury being able to know and use
this right and this power has many other residual
benefits, which would include allowing legislators ...
to know what the community ... thinks about certain
laws from time to time. Some historical examples of
that would include the fugitive slave laws in the
early 1800s, and other laws related to slavery; it was
juries - mostly white Americans - that continued to
bring in "not guilty" verdicts regarding people that
were actually guilty of breaking the law and harboring
runaway fugitive slaves. Some other examples would be
Prohibition, and we could point [to] others in which
the conscience of the community, the conscience of the
citizenry, was brought to bear on the system to bring
about important changes. I would urge you to support
this legislation; I think it would be very beneficial
and pay great residual benefits to the state of
Alaska. And, hopefully, it will have an affect on the
rest of the nation.
Number 1656
LARRY PRATT, Executive Director, Gun Owners of America,
testified via teleconference in support of HB 463. He described
the case of a man who defended himself from four armed
attackers, with a gun he did not have permit for. He was
convicted, after which three of the jurors went to the defense
attorney and relayed that they felt they were forced into
handing down a conviction because the judge commanded the jury
to follow his [instructions] regarding the law. Had those
jurors been informed about [jury nullification], he surmised,
they would have been able to make a decision based on their
conscience.
Number 1520
NANCY LORD JOHNSON, M.D., J.D.; Member, Board of Directors,
Fully Informed Jury Association (FIJA), testified via
teleconference in support of HB 463. After noting that she is a
private attorney in Pahrump, Nevada, she said she finds HB 463
to be an excellent bill. She elaborated:
It addresses the problem faced in courts today when
jurors are deprived of their traditional right to
prevent the oppression by the government, even when
they learn of this right from outside sources. The
general trend has been to inform jurors they have a
duty to follow the court's instruction, and leave them
to learn [of] their right to jury nullification to
informal or unofficial sources; this has been
documented in numerous cases. Unfortunately, over the
past few years, there have been several attempts
around the country to prosecute persons for even
distributing this truthful information on the jury's
historic right, and this legislation would put an end
to that, at least in Alaska.
There was a case in Colorado where a juror was
prosecuted, allegedly for failing to volunteer her
potential bias against a particular law, and she was
charged with that; well, the real reason is that she
gave jury information to her fellow jurors. In
another case that I tried in Pennsylvania, the foreman
attempted to get a juror off the jury because he
claimed that she indicated she would not follow the
law - when, in fact, she had a problem with the
government's facts, which was her duty as a juror.
We have a lot of unfair laws about firearms. Now,
what is a firearm? A firearm should be a gun that
shoots, but people have been prosecuted for "kits" and
for other guns that couldn't be fired, and the
deficiencies get instructed away by the prosecution.
I tried a hemp case several years ago where people
were prosecuted for planting seeds that were just bird
food; the inability to reproduce was defined as
inability to sprout, and that distinction was, again,
instructed away, and they were only saved from
conviction because one of the jurors happened to be a
biologist.
Number 1462
MS. JOHNSON continued:
I do a lot of work with the [Food and Drug
Administration (FDA)], and we get charges of
unapproved new drugs when people are selling vitamins.
There was also a case in Texas where a doctor was
prosecuted for innovative products that had saved the
lives of children with brain tumors. And then we have
conspiracy - as (indisc.) once wrote, "the darling of
the prosecutor's nursery".... And in all of those
cases jurors had a gut sense - they found it on their
own factual findings - that the person had done
nothing morally or legally wrong, but the instructions
get so technical that only a very highly skilled trial
attorney and strong-willed jurors can fight the
judicial pressure to convict.
It sometimes becomes, almost, directing a verdict of
conviction. This bill would make that impossible.
The power of the jury to nullify is well recognized;
it's been established for centuries. Three states -
Georgia, Maryland, and Indiana - specifically mention
this power and allow the lawyers to argue that the
juror can judge the law as well as the facts, and this
has not resulted in any disruption of their court
proceedings.
The bill would remove Alaska from the number of
jurisdictions that do not permit specific jury
instructions regarding nullification. And I think
it's a very good bill and would benefit Alaska
enormously. This is a power that has been recognized
uniformly throughout the country, and while it's been
questioned, there is no means to compel a juror to
convict. This would only make the rule clear. The
jurors would be told exactly what their rights and
powers are, and it would eliminate the confusion and
some of the litigation we've had concerning the
historic role of juries.
Number 1331
DAVID C. BRODY, J.D., Ph.D.; Associate Professor and
Coordinator, Criminal Justice Program, Department of Political
Science, Washington State University Spokane, testified via
teleconference in support of HB 463. He said:
Through my graduate school training and my work as a
professor, I've done a great deal of research, both
legally and social-scientifically, regarding the issue
of jury nullification. And I don't belong to any
organization; I'm just going to ... speak about what
my research has shown and what the general research
has shown regarding the effects of such a bill as is
being considered today. Without getting into whether
or not it's legally appropriate to instruct juries
regarding nullification - because I think it is
mandated, but regardless of that point - I think that
almost every one would agree that there are times when
we want juries to nullify. There are appropriate
times where laws aren't fair when applied and are
inappropriate, or prosecutors have overcharged. And
in those instances, which are quite rare, we want the
jury to do the right thing and say, "Not guilty."
As it stands now, we're rolling the dice hoping that,
in such cases, [the] jurors know that they have that
right - that they'll figure it out themselves. And
the reality of the situation is, they don't know that.
I've conducted research in New York state, where we
did a survey of residents regarding whether or not
they knew of jury nullification. And it wasn't worded
that inartistically, but that's essentially what it
came down to. And the vast majority of people had no
idea what jury nullification is: they had no idea
that they could find someone not guilty for various
reasons or no reason whatsoever.
Number 1098
MR. BRODY continued:
So, when we put jurors in a situation where we want
them to do something, without telling them what to do,
we're essentially causing them a great deal of
frustration and defeating the purposes of what the
jury system is all about. The jury system is
[designed] to put the individual citizen in a position
to judge his peers and to be the conscience of the
community, and to be able to do that, they have to
know exactly what they can do. In reality, just
because jurors are told that they have the power to
nullify, it's very, very, very rare that they're going
to do it. There aren't too many people that support
murderers or rapists and things of that nature, where
they're going to find, because they feel like it.
It's not going to happen. And it's especially not
going happen when you have unanimous-verdict
requirements, where you have to have 12 jurors agree
on acquittal.
In my opinion, if you have 12 people agree that a law
is unjust, that is the conscience of the community,
and that should tell the legislature - or, more
specifically, the prosecutor - something. An
important aspect of this, which a lot of people have
concerns over, is you'll end up with jurors that will
let drug defendants off or abortion protestors off or
things of that nature, just because they don't feel
[the] laws are just. Well, we have jury selection
processes that deal with that: prosecutors have a
duty to "voir dire the jury" and find out whether
someone is in favor of marijuana being legalized, or
something of that nature. And if they find that out,
I'm sure they will use a preemptory challenge or
challenge for cause to remove that juror. So, the
concern that runaway juries with specific agendas will
take place, I find [that to be] kind of a specious
argument because the people with true agendas can be
weeded out through the jury selection process.
MR. BRODY, in summation, said of HB 463:
There is very little risk of harm involved in it. It
will only affect a minority of cases, and it won't
lead to an abundant number of acquittals; it won't
lead to anarchy. There is very little harm that can
be done, but for individual people and individual
cases, it can be the difference between being free and
being in prison. And the last item I mention is kind
of political-scientific. It is: giving juries this
power and letting them know they have this power is a
good message to society and the community, and it
gives people an increased sense of trust in the
government - an increased sense of trust in the court
system. [It] makes them feel part of it, which
increases social capital, which can increase the
community ... development and make society a much more
healthy place for people to live. Thank you.
Number 1054
REPRESENTATIVE JAMES asked why jury nullification was
suppressed.
MR. BRODY said that there are a lot of theories regarding that
phenomenon. He offered that the cynic would say that judges and
lawyers didn't trust individuals and thus wanted to keep the
power in their own hands; they didn't want outsiders to have
this power. Essentially, nullification instructions were
required up until the late 1800s, when, in the case of Sparf and
Hansen v. U.S. [156 U.S. 51 (1895)], the [U.S.] Supreme Court
said that jurors do not have the right to nullify. Up until
then, they did, he explained. He noted that the leading case
nowadays is the [1972] case, U.S. v. Dougherty, and essentially
the argument used is that [jury nullification] will lead to
anarchy, that juries will be acquitting defendants left and
right because they feel like it, and won't be reigned in. No
research has ever shown that would ever occur, he argued, adding
that in Maryland and Indiana, where jurors have been instructed
consistently about the right of jury nullification, with the
exception of "post Final Four riots" such practice has not
created a problem.
CHAIR ROKEBERG noted that according to information in members'
packets, 23 states have jury nullification provisions in their
constitutions specifically related to libel/sedition cases. He
asked Mr. Brody to comment.
MR. BRODY said that those provisions in those constitutions are
specifically limited to libel and sedition cases. He noted,
however, that some constitutions have general jury nullification
provisions; for example, the Maryland constitution requires that
jurors be the judge of both law and fact. He did acknowledge,
however, that in the 1980s, the Maryland supreme court
essentially got rid of that provision by saying that it only
applied to cases in which the supreme court hadn't previously
decided what the law is. States have not applied [jury
nullification provisions] to criminal prosecutions, he observed,
and in states where those provisions are part of the
constitution, jurors' ability to [engage in jury nullification]
has been reduced over time.
Number 0779
JACK POLSTER, Member, Fully Informed Jury Association (FIJA),
testified via teleconference in support of HB 463. He said he
would suggest that jurors have both the right and the power to
nullify law, but that they have simply not been made aware of
that fact in the recent past. He noted that formerly, churches
and private schools routinely informed the citizen of the right
and the obligation to nullify. Back then, he observed, society
considered it an obligation to "apply nullification to
conscience when appropriate." According to his understanding of
the Sparf [and Hansen] decision, he said, it was determined that
the court no longer had the obligation to inform jurors that
they had the right to nullify law; instead, jurors were
effectively told that they were expected to come to court as
informed jurors, already aware of their rights. He posited that
it is still questionable whether the courts have determined that
the right to nullify does not exist.
MR. POLSTER relayed that he occasionally goes to the courthouse
when jurors have been called to serve, and hands out brochures
to them before they have been impaneled; these brochures are put
out by FIJA and provide basically the same information being
presented to the committee regarding jury nullification. He
noted others [in the community] routinely handout these
brochures, and they do it politely and without obstructing
traffic. He said he has noticed that after being handed a
brochure, many people are "put out" because they have never been
informed about jury nullification; the schools have failed in
that regard. He remarked that this failure on the part of
government schools to provide this information is something that
he would expect. The purpose of FIJA, he explained, is to
provide information about the right to nullify and its
importance; in addition to providing brochures, FIJA also
conducts speaking engagements for small groups.
MR. POLSTER provided the following example of jury
nullification:
Way back when, a large group got together and
convinced Congress that drinking of alcohol -
actually, it was the selling, manufacturing, and
distributing of alcohol - was inappropriate. After a
while, the feds became so unsuccessful in their
convictions - because of the fact that jurors,
conscious or unconsciously, were aware of the
possibility of jury nullification, [and] were sitting
on juries and saw that their friends and relatives
were in effect selling, manufacturing, [and]
distributing in violation of the law and yet they were
not truly a threat to the community. And they chose
to acquit on that basis. And effectively the feds had
to come back to the states and beg to get that monkey
off their back, which eventually occurred, as you
know. I'm not a drinker, I don't approve of it, [and]
I'm rather neutral on the issue, but I am very
definitely in favor of the concept of jury
nullification appropriately applied.
CHAIR ROKEBERG asked Mr. Polster whether there was a particular
incident that generated his interest in this subject.
MR. POLSTER said: "No, I've never been in court; I am a member
of the Libertarian Party, [and] I would think the purpose of
government is to protect rights rather than grant privilege...."
Number 0507
RUDY VETTER testified via teleconference in support of HB 463.
He said that he agrees 100 percent with everything Ms. Johnson
and Mr. Key said about jury nullification. He remarked that
back when everyone was told that the law was the divine right of
kings, the Magna Carta gave the people of the world the freedom
to contradict [laws] that constitute a breach of conscience.
Number 0414
FRANK TURNEY, Member, Fully Informed Jury Association (FIJA),
testified via teleconference in support of HB 463. After
thanking Representatives Coghill and Hayes for bring HB 463
forth, he mentioned that he'd provided the committee with a web
site [address] by which to retrieve an essay by Lysander Spooner
- "Trial by Jury" - and remarked that Mr. Spooner is one of the
great historians with regard to the role of the jury. He also
noted that he'd sent the committee some quotations from the
Founding Fathers and the courts regarding the role of the jury.
He acknowledged that the Fairbanks city founders had introduced
and passed a resolution similar to HB 463 a number of years ago
regarding the rights of the jury, although the Fairbanks [North
Star] Borough assembly failed - by three votes - to pass a
similar resolution.
MR. TURNEY mentioned that to William Penn one could attribute
many of the freedoms enjoyed today: freedom of speech, freedom
of assembly, freedom of religion, and freedom of the press. He
acknowledged and thanked Mr. Key and Ms. Johnson for their
testimony regarding jury nullification. Mr. Turney said that in
addition to supporting HB 463, he is in support of any
legislation that calls for informing the jury of its true
rights, powers, and responsibilities. He opined that what is
needed is a re-education of the citizens with regard to this
issue. Referring to [subsection] (f), which says, "A potential
juror may not be excused or disqualified from serving on a jury
because the juror expresses a willingness to exercise a power
granted to the jury under this section", he indicated that this
[subsection] in particular is badly needed. He mentioned that
he hoped the committee would pass HB 463.
Number 0190
SENATOR DAVE DONLEY, Alaska State Legislature, testified in
support of HB 463. He opined that as society gets more complex,
it seems as though governments are more often telling American
citizens what to do rather than the other way around. He
expressed concern that the judicial branch, over the years, is
driving a wedge between [current practice] and the true meaning
and original purpose of the jury system.
CHAIR ROKEBERG asked Senator Donley what value the legislature
has, then, with regard to turning over to the public the
determination of criminal matters.
SENATOR DONLEY said:
I believe in the theory of jury nullification. I do
believe that when government goes too far, I believe
[that] the jury should have the option to make that
decision. I believe it's the ultimate safeguard
between a tyrannical government and justice and
fairness within the judicial system. I'm also very
concerned about the development where lawyers, more
and more, become like a ruling oligarchy in our
society in that they control the courts and the courts
really have been more and more acting without limits
or bounds that were originally intended under the
United States Constitution. And as they absorb more
and more of the power to themselves, they've tried to
reduce the role of the jury more and more and increase
the role of lawyers and judges. And I find that very
concerning, and I think that a fully informed jury is
just a very small, but meaningful, step towards
creating a better balance in that system.
CHAIR ROKEBERG said: "So you don't think we're ceding any of
our legislative authority by doing this, because the usurpation
of our authority by the courts is more egregious than giving the
average citizen - as a juror - the right to nullify a law. Is
that correct?"
SENATOR DONLEY said: "Especially in this state ... where we
don't elect our judges and we don't confirm our judges." He
opined that states which do elect their judges [and/or] confirm
their judges - as is done at the federal level - have an
additional check and balance in place.
TAPE 02-41, SIDE A
Number 0001
SENATOR DONLEY mentioned that he thinks this leads to difficulty
in achieving a separation of powers with the judiciary. He
opined, however, that the issue is not so much one of separation
of powers as it is one of the powers of the citizens versus
their government. He said he believed that [having] a fully
informed jury is a very reasonable proposal and allows citizens
to have a final say in what is fair.
REPRESENTATIVE JAMES mentioned that it appears as though one of
the court system's concerns is that costs will go up because,
since the public will be aware of nullification, no one will be
willing to plea bargain, and so everything will have to go all
the way through the court system.
SENATOR DONLEY said:
Obviously, the courts have the best of all worlds now:
... they get to determine what their powers are. And
the lawyers: you know, we all have a license to
practice law, and that gets us past the bar and makes
us, ... within the judicial system ..., more
influential than the average citizen. And I'm very
concerned about that. And I can see where the judges
and the lawyers don't want their power taken away from
them, but I really believe that this is a democracy
and not an oligarchy, and it shouldn't be an oligarchy
run by just lawyers: it should be run by the people.
... I think this is a fair proposal. ... When you go
back over the history of time, ... the juries have
become almost the opposite of what they're intended to
be in the first place. ...
When the juries were first created in the English
system, they were typically people who knew something
about the case - they were people who were witnesses,
they were people who knew the parties in the case -
that's how they were selected. And over time, as the
judiciary wanted to exert its power more and more over
the citizens, that whole philosophy changed. And now,
my goodness, if you know anything about the case, that
becomes grounds for you not being allowed to even sit
on the case or to be a citizen that participates in
the jury process. It's come full circle from where it
was originally intended to be, and I don't necessarily
support that.
SENATOR DONLEY concluded:
I think there are reasonable controls over who should
sit on juries and [to] prevent conflicts of interest
and ensure fairness; at the same time, if you look
systemically back over time, you can see how we got
here. And I don't think it's [necessarily] the best
solution ... to keep the jury from knowing relevant,
appropriate facts. And it seems lawyers more and more
want to manipulate the system to do that, and I just
simply disagree with it. I support the legislation.
Number 0280
KEANE-ALEXANDER CRAWFORD testified via teleconference in support
of HB 463. He said:
First, and I mean this with absolute deference and the
utmost respect, the legislature doesn't make law and
really can't make law, any more than a gold miner
makes gold. All laws are, already - and
Representative Coghill mentioned it and it's mentioned
throughout our Declaration if Independence - the laws
of nature and nature's god already exist. And all I
can ask you as the legislature to do is to choose to
recognize that law. This bill really isn't going to
give anybody any rights if it passes; all it's going
to do is recognize the right that does exist, has
existed, and will always exist 'til the end of time
while there's people on this earth. ... It's the last
barrier the citizen has.... And trial by jury is very
important, and [HB 463] won't really do everything -
there's lots of little ... [problems to solve] - but
it's good, and I like it, and I'd really appreciate it
if the legislature took their time to recognize this
right. Thank you.
Number 0420
MARY JANE OWENS testified via teleconference in support of HB
463. She said simply that it is bound to be a benefit to the
citizenship and to the [legislature] in being able to evaluate
"what you're doing." "You can't really say you have a
government by the people when the people are not allowed their
voice in such a basic matter," she added.
Number 0480
PATRICIA MICHL, J.D.; Member Board of Directors, Fully Informed
Jury Association (FIJA), testified via teleconference in support
of HB 463. She commended Representative Coghill [for sponsoring
HB 463], said she fully supported it, and urged the committee to
do so as well. She said:
First of all, I'd like to point out that in our
country today, many people feel disenfranchised and
disconnected from their government. This legislation
will help citizens feel prouder to be citizens and to
serve on juries. This legislation preserves the
integrity of the jury system, which has been eroded -
as has been pointed out numerous times in this
testimony today. Specifically, in subsection (f), we
refer to the fact that a potential juror cannot be
disqualified or excused because of their willingness
to exercise this power.
Right now what we're doing is we are taking people off
juries because they exhibit a willingness to judge the
law, or a propensity to judge the law or be critical
of the law; we're actually losing our very best and
most conscientious jurors because of the present voir
dire practices, and subsection (f) would eliminate
that. Also, regarding the judge, I think there's been
some concern expressed by the committee about the role
of the judge [and] the legislature. This statute does
not allow the jury to repeal laws; it merely allows
the jury to sit in judgment of one defendant on one
case. But, of course, if you have a series of
acquittals or hung juries in a particular area of the
law, then we have a very institutionalized message
being sent you, the legislators, so you can take
appropriate action on that law.
And also I'd like to point out that we already have
jury nullification codified in almost every state:
our self-defense laws, right now, are actually jury
nullification. They're saying that, yes, there was a
crime committed, technically, but there was a very
good reason for that crime being committed and,
therefore, the defendant should be blameless. We also
have the privilege of necessity; we have the battered
woman's syndrome - that usually is where a battered
person has assaulted the abuser or killed the abuser,
and the person is allowed to make arguments to the
jury regarding the reasons for doing that - and that
is really jury nullification. So it's nothing new.
Number 0667
MS. MICHL concluded:
And in the state of Washington we have, actually, a
nullification statute that allows ... - for many
reasons, like I think there are approximately 12
reasons stated in the statute - for prosecutors not to
prosecute a case even though the statutory elements
have been met. So the prosecutors are allowed to
exercise mercy, and I feel the jurors should be
allowed to exercise mercy also. The jury is really
the forth branch of government. It's one of the very
important safeguards that we have regarding our laws,
and I urge you to support this measure. Thank you.
CHAIR ROKEBERG asked Ms. Michl to comment on the U.S. Supreme
Court's current position in light of the Sparf and Hansen and
Dougherty decisions.
MS. MICHL said:
I believe in Sparf and Hansen the Supreme Court said
that the jury has the power to nullify the law, but
not the right; in other words ... they shouldn't be
told about it, but they always have the power to do
that. And then [in] Dougherty, the U.S. Supreme Court
said ..., "We don't need to inform the jury about
their right or their power to judge the law because
they already know about it; it's just inherent in the
process of being part of the jury." And of course
this is very fallacious reasoning, and this is not
really good law; it's not healthy for our country.
CHAIR ROKEBERG asked if there have since been other such cases
before the Supreme Court.
MS. MICHL said that there have been other cases, among them a
federal case that came out of New York, but acknowledged that
"none of them have been positive cases - they've been bad cases
- that's why we're urging you to turn the corner here." She
explained that the New York case involved the court's invading
the privacy and the sanctity of the jury room, and actually
yanking a juror off the jury because he declared in the jury
room, during the deliberations, that he was not going to apply
the law because he didn't believe the law was a just law. And
the court actually took this person off the jury - in the case
of U.S. v. Thomas - and the jury came in with a verdict with
only [11] jurors. She noted that there was also a case in
California - People v. Williams - in which the verdict was
delivered with only 11 jurors because of one juror's willingness
- and expressing that willingness - to judge the law. She
opined that these are examples of very bad tendencies, which HB
463 would correct - at least in Alaska.
Number 0900
THOMAS STAHL, Member, Board of Directors, Fully Informed Jury
Association (FIJA), testified via teleconference in support of
HB 463. He first clarified that "Sparf [and Hansen] is the
United States Supreme Court's last word, the Dougherty case was
a DC Circuit case, and the U.S. [v.] Thomas is a Second Circuit
case." Thus, the U.S. [Supreme] Court's last official word is
Sparf and Hansen, 1895. He then mentioned that he is a retired
attorney who formerly practiced in Massachusetts, where he first
became involved with FIJA during the time of the Roberta Shaffer
(ph) trial. He recounted that Ms. Shaffer killed an attacker
and was charged with first degree murder, but the jury convicted
her of second degree murder. The trial judge, however, forbade
Ms. Shaffer from raising a self-defense argument, and this
judge's decision was upheld during the appeal process. Because
of this decision, Ms. Shaffer "went away for 20 years" for
something that she would probably never have even been charged
with in Alaska or Washington. He said that after seeing the
conscience of the community violated in that manner he became
involved with the FIJA.
MR. STAHL said HB 463 stands for the proposition that defendants
get to tell their whole story - not that defendants shouldn't be
convicted after they tell their whole story, he admitted, but
they should at least have that right; the jurors should come
away from the process feeling like they have at least heard the
whole story and like their verdict really represents their true
decision. He opined that HB 463 accomplishes those goals, and
that passing it will serve to validate the [judicial] system.
He posited that jurors' interpretation of the law is probably
closer to what the legislature's intent is than what the
judiciary interprets it to be.
Number 1077
MR. STAHL pointed out that there are still a lot of jury
nullification provisions in the state constitutions. There are
four explicit ones in Maryland, Indiana, Georgia, and Oregon
that say that the jury should determine the law in all criminal
cases. Granted, he added, the courts do not apply those
provisions, but they are still on the books. He noted that
there are 20 other states that have declared that the jury shall
judge the law in "seditious libel" cases, which are free-speech
cases or First Amendment cases, in which someone is criticizing
the government. He relayed that with regard to seditious libel
cases, the constitutions of Delaware, North Dakota, Kentucky,
Pennsylvania, and Texas have an additional phrase which says,
"as in all other cases." He surmised this to mean that the jury
would judge the law in seditious libel cases, as in all other
cases. He added that Tennessee's constitution uses the phrase,
"as in other criminal cases."
MR. STAHL opined that the language in the aforementioned
constitutions is a strong indication that jury nullification had
a very high value among early Americans. He offered that by
just taking the words in those constitutions "on their face,"
jury nullification still exists as a right, and the judicial
interpretations are wrong. He said that HB 463 provides
Alaska's legislature with the chance to fulfill the original
intent of the framers of several constitutions, which was that
juries should judge both law and fact.
MR. STAHL, on the issue of whether HB 463 will increase costs,
offered that it will save a lot of money because "prosecutors
will quickly learn that they shouldn't even bring cases [to
trial] that the community does not support." He opined that had
jury nullification been explicitly provided for in Massachusetts
in 1975, Ms. Shaffer would never have even been charged when she
defended herself and her small children against "a psychopath
with a knife." He said that HB 463 will also save money because
there will be fewer appeals from defendants, since they will
have had their full say during the original jury trial,
including offering their own instructions to the jury.
CHAIR ROKEBERG instructed teleconference participants to fax any
written testimony to the committee. [Per these instructions,
Patrick Dalton, Sharon V. Dalton, and Seymour Mills provided
written testimony.]
Number 1248
SIDNEY K. BILLINGSLEA, Attorney; President, Board of Governors,
Alaska Academy of Trial [Lawyers] (AATL), testified via
teleconference in opposition to HB 463. She said:
The way the law presently works, the way the system
presently works, is that the police arrest somebody -
they charge somebody with a crime that's in the
statute books. The district attorney's office screens
what the police officers propose to them, and they
elect which charges to bring against an individual,
from the statute book. The defense really is in a
reactionary posture at that point. If the defendant
chooses to try the case, the jury, then, is legally
the judge of the facts and whether the facts meet the
laws - the same laws that you all are down there
working on creating. If the facts meet the laws, as
charged, the person is generally convicted; if they
don't, then the person is generally acquitted or
convicted of a lesser included offense. We already
have a mechanism for convicting somebody who's accused
of a lesser included offense [rather] than the one
that they were brought to court on, and that provides
some safeguard.
What this [proposed] law generally does is codify jury
nullification, which essentially makes a trial a
popularity contest. It eliminates the rule of law,
and it adds a chaotic element to equal protection for
every individual under the Constitution - which equal
protection is a constitutional right. It permits
verdicts based on subjective reasons which ignore the
law, and in Alaska especially, which is such a small
state with such small towns and villages, that could
be a disaster where individuals are well known. In
other words, they could be judged on merits or
demerits that have nothing to do with the fact
situation that brought them before the jury in the
first place.
When I heard the word that jurors should be allowed to
discriminate about whether or not they should apply
the law or not, it rang a bell to me - a different
kind of bell, though, than the Senator.
Discrimination is one reason why we have laws; it's
the one reason why we have a constitution. People,
[as] individuals, are protected by our constitutional
laws and our criminal laws from ... the tyranny of the
majority. This sort of - especially, again, in small
towns - ... would erase that. Another thing that this
particular proposal does is it sets up a cognitive
dissonance where lawyers and judges who are sworn to
uphold the law of the constitution are also ordered,
at the same time, to tell jurors that they can ignore
the law or the constitution if they feel like it's the
right thing to do at that particular time.
Number 1402
MS. BILLINGSLEA continued:
Subsection (c) and (d) is sort of the free-for-all
area of this [proposed] law. It subverts the Alaska
Rules of Evidence, most specifically rules 401, 402,
403, and 404, which have to do with the admission of
relevant evidence before a jury. ... I can see
instances or hypothecate instances where a jury trial
could turn into something that looked like the Jerry
Springer Show - on both sides: the defense gets to
talk about all the things that he has done that merit
the jury's consideration for, like, a vote, and the
prosecution then gets to back up the dump truck and
bring in all the things that are not so pleasant. And
pretty soon the jury, hypothetically, has forgotten
why they're there in the first place, which is to
determine whether one galvanizing incident is a crime
or not a crime.
What I can see is that's setting up the opportunity
for a lot more hung juries, because people will [then
be] permitted to nullify a verdict and, with a lot
more hung juries, that means a lot more retrials and
that means a lot more prosecution resources going to
retrials as opposed to initiation of prosecutions. I
think where people need to change the law is
legislatively [and] I think where people need to vote
is in the voting booth - and not in the jury room. If
there's a problem with statutes, we have, again, such
a small state and such a small legislature that they
are capable of being fairly responsive, on fairly
short turnaround time, to problems that are perceived
in the jury system. So, I really don't support - I
can't support - jury nullification in this [manner].
Number 1509
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
DOL is opposed to HB 463 for a number of reasons. She
elaborated:
As legislators, you are elected by all the people of
the state to make laws that create an orderly society
for us all. You do so after considering legislation
in public hearings, and debating and compromising and
coming to a reasonable and just conclusion. After you
do that, you expect that people who are responsible
for enforcing the laws and judging the facts will do
so according to your enactments. I would note that I
have heard, occasionally, discouraging comments in
these halls about judges who (indisc.) [might] not be
applying the law as you wrote it and intended it.
After all the work and debate and thought over what
our laws should be, I don't understand why you would
want to pass a bill that authorizes a jury to
disregard the law in every case, and even encourages
it to do so.
If this bill were passed ... - and I'm talking about
criminal cases because in criminal cases you have to
have a unanimous verdict in order to convict a person
- one person [on a jury], believing that domestic
violence is really an issue that should be addressed
at home, could prevent the verdict of conviction in a
serious assault case. One person, believing that
because a drunk driver did not cause damage to an
individual or physical damage when he or she drove
drunk for the third time, could ... prevent a verdict
of guilty for a felony, or could decide that it ought
to be a misdemeanor and, therefore, come back with a
misdemeanor verdict or no crime at all. Or one person
on a jury, believing that consensual sex between two
people is not an issue that the state should be
interested in, could refuse to return a guilty verdict
when [an] adult engages in, quote, "consensual sex"
with a fifteen-year-old or a thirteen-year-old or a
ten-year-old. Also, one person, believing that the
best approach to the drug problem in this state is to
legalize drugs, could refuse to return a verdict of
guilty in any drug case.
Number 1602
MS. CARPENETI continued:
These are just some examples. ... The examples given
[regarding] murder cases and cases like that are not
as troublesome as cases where the law is not as easy
to enforce and to apply. Everybody agrees that you
shouldn't kill somebody else, [whereas] you have
adopted laws that say the third time drunk driving
should be a felony because of the disaster of drunk
drivers on our roads. And those are the cases that go
to trial that will be problematic in this area. The
people of Alaska entrust you to enact laws based on
your experience and the knowledge of the public
[issues] facing the state. You do so after public
hearings, debate, negotiations, and compromise. To
then allow and even encourage a single person, in the
secrecy of the jury room, to decide that he or she
disagrees with you and doesn't want to apply the laws
as instructed, is a very bad idea.
If people don't agree with the law, there is orderly
procedure to attempt to change it, and one of the
hallmarks of civilized society is that we have
procedures like this one here, where everybody gets
[a] chance to participate publicly before we enact
laws. To undermine the law by allowing one person to
disagree in the secrecy of a jury room would create
chaos.
REPRESENTATIVE JAMES, referring to the examples Ms. Carpeneti
spoke of, asked, "Don't you think that those tendencies would be
found out in the jury selection?" She recounted that her
husband had been called to serve on the jury in a domestic
violence case; when asked how he felt about [domestic violence],
his reply that he did not think it was right for a man to hit a
woman - anytime, anywhere, for any reason - resulted in his
being discharged from the jury. She opined that the questions
asked of prospective jury members are very revealing.
MS. CARPENETI pointed out that the way HB 463 is drafted, jurors
could not be excused if they express the opinion that "they
would like to exercise their rights under this [proposed] law."
REPRESENTATIVE JAMES argued that "that's not the only question
they're going to ask them; they're going to ask them another
list [of questions], and everyone has a right to discharge
people based on a lot of different things."
Number 1727
MS. CARPENETI, in response, again pointed out that HB 463 says,
"A potential juror may not be excused or disqualified from
serving on a jury because the [juror] expresses a willingness to
exercise a power granted to the jury under this section" - that
power being the ability to nullify the law that the legislature
has adopted. In response to a question, she said that under HB
463, a juror could still be excused with a preemptory challenge,
but the types of preemptory challenges that could then be used
would be very limited. In response to another question, she
indicated that HB 463 raises concerns that "in tough cases," one
juror could "return a hung verdict" because of the requirement
that everyone on a jury must be convinced beyond a reasonable
doubt that the defendant violated the law - as enacted by the
legislature through the legislative process. She opined that
[the provisions of HB 463] would counteract "all the good work
that is done in these halls."
REPRESENTATIVE JAMES asked, "Isn't it true that that can happen
now if there is some flaw or some little loophole in the case,
that somebody could just refuse to go along with that issue,
whether or not they were doing it on their own? What would keep
them from doing it now?"
MS. CARPENETI said that juries do nullify prosecutions
occasionally: [jurors] take an oath, before they hear evidence,
that they will follow the law as the court instructs, but there
are times when jurors go outside of that oath and return a
verdict according to procedures or laws other than what they are
instructed [on]. "It's not a perfect system, but it's the best
that we know yet," she added.
REPRESENTATIVE JAMES referred to a piece of legislation that was
heard on the House floor earlier that day, and opined that if
the provisions of HB 463 were in place, then a jury could decide
on the applicability of any broad provisions encompassed in the
aforementioned legislation. She offered that legislation would
not have to contain such specific definitions if jury
nullification provisions were adopted.
CHAIR ROKEBERG said he was not in favor passing "sloppier law"
just because the jury could be called upon to "figure it out."
REPRESENTATIVE COGHILL offered that [HB 463] highlights the
classic struggle that occurs among the three branches of
government as each seeks to fulfill its constitutional duties;
each branch of government will always argue that it does not
want to give up its power to either of the other two branches.
He pointed out, however, that regardless of this inherent
struggle, all government originates with the people, and thus it
is wrong to hold a condescending view towards the people who
serve on juries. He remarked that [via HB 463], he is merely
standing up for the rights of the jury, and does not presume
that a jury "is going to get it all right ... every time," any
more than any branch of government will. He opined that juries
have become blind operatives of the court, and that HB 463 seeks
to reverse that trend.
Number 2007
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that he just wanted to comment on remarks made
earlier that [implied] judges are opposed to legislation such as
HB 463 because they fear it "undermines their ever-expanding,
illegitimate role in society." He pointed out, first of all,
that the ACS has not taken a position on HB 463 and, second,
that a person is charged with a crime because he/she is alleged
to have violated one of the statutes that the legislature has
passed, not a statute that judges have passed. Thus, if a jury
decides that it is unfair, for example, to convict somebody of a
felony just because it's his/her third DWI (driving while
intoxicated) but no one was actually hurt, it may undermine the
power of one branch of government, but it won't be the judicial
branch: it will be the legislative branch's power that is
undermined.
MR. WOOLIVER, referring to comments regarding the ACS's fiscal
note, clarified:
We're not asking for any money for this; we're not
alleging a flood of new jury trials. Our fiscal note
merely states the obvious, which is, under this law,
there would be an incentive to go to a jury with a
case where you would otherwise plead guilty because
you did violate the law - but now you'll have the
opportunity to argue that, in your case, the law is
unfair. That's an incentive to go to a jury trial;
our [fiscal] note merely reflects the fact that we may
see more jury trials because of that, but we are not
asking for any money in our fiscal note.
CHAIR ROKEBERG announced that HB 463 would be held over.
ADJOURNMENT
Number 2100
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:30 p.m.
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