Legislature(1993 - 1994)

03/07/1994 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
               HOUSE JUDICIARY STANDING COMMITTEE                              
                          March 7, 1994                                        
                            1:15 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice-Chair                                             
  Rep. Pete Kott                                                               
  Rep. Gail Phillips                                                           
  Rep. Cliff Davidson (1:45 p.m.)                                              
  Rep. Jim Nordlund  (1:50 p.m.)                                               
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Rep. Joe Green                                                               
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  HB 334:   "An Act relating to criminal sentencing; and                       
            relating to mandatory life imprisonment, parole,                   
            good time credit, pardon, commutation of sentence,                 
            reprieve, furlough, and service of sentence at a                   
            correctional restitution center for offenders with                 
            at least three serious felony convictions."                        
                                                                               
            MOVED FROM COMMITTEE                                               
                                                                               
  HB 339:   "An Act relating to the use in public schools of                   
            historical documents without alteration or removal                 
            of religious or secular references when the                        
            references are a part of the text of the document;                 
            providing that the use of historical documents                     
            does not constitute the advocation of partisan,                    
            sectarian, or denominational doctrine; and                         
            providing that public school teachers and                          
            administrators may not be disciplined or otherwise                 
            acted against for using historical documents;                      
            requiring the Department of Education to                           
            distribute copies of the law; and providing for an                 
            effective date."                                                   
                                                                               
            MOVED FROM COMMITTEE                                               
                                                                               
  HB 439:   "An Act enacting the Uniform Fraudulent Transfer                   
            Act."                                                              
                                                                               
            MOVED FROM COMMITTEE                                               
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  REP. CON BUNDE                                                               
  Alaska State Legislature                                                     
  Alaska State Capitol, Room 112C                                              
  Juneau, AK  99801-1182                                                       
  Phone: 465-4843                                                              
  POSITION STATEMENT:  PRIME SPONSOR OF HB 334                                 
                                                                               
  JERRY LUCKHAUPT                                                              
  Legislative Legal Counsel                                                    
  Division of Legal Services                                                   
  Legislative Affairs Agency                                                   
  Room 401, Goldstein Building                                                 
  130 Seward St.                                                               
  Juneau, AK  99801                                                            
  Phone: 465-2450                                                              
  POSITION STATEMENT:  TESTIFIED IN SUPPORT OF HB 334                          
                                                                               
  DEAN GUANELI, Chief                                                          
  Assistant Attorney General                                                   
  Legal Services Section, Criminal Division                                    
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, AK  99811                                                            
  Phone: 465-3428                                                              
  POSITION STATEMENT:  PRESENTED TESTIMONY REGARDING HB 334                    
                                                                               
  DIANE SCHENKER, Special Assistant                                            
  Department of Corrections                                                    
  2200 E. 42nd Avenue                                                          
  Anchorage, AK  99508-5202                                                    
  Phone:  561-4426                                                             
  POSITION STATEMENT:  TESTIFIED REGARDING HB 334                              
                                                                               
  BRANT McGEE, Director                                                        
  Office of Public Advocacy                                                    
  Department of Administration                                                 
  900 W. 5th St., Suite 525                                                    
  Anchorage, AK 99501-2090                                                     
  Phone: 274-1684                                                              
  POSITION STATEMENT:  TESTIFIED IN OPPOSITION TO HB 334                       
                       (Spoke via offnet)                                      
                                                                               
  BARB BRINK                                                                   
  Public Defender Agency                                                       
  Department of Administration                                                 
  900 W. 5th St., Suite 200                                                    
  Anchorage, AK 99501-2090                                                     
  Phone: 264-4400                                                              
  POSITION STATEMENT:  TESTIFIED IN OPPOSITION TO HB 334                       
                       (Spoke via offnet)                                      
                                                                               
  EDWARD E. McNALLY, Acting Deputy Attorney                                    
  General - Criminal Division                                                  
  Department of Law                                                            
  310 K Street, Suite 520                                                      
  Anchorage, AK  99501                                                         
  Phone:  (907) 269-6300                                                       
  POSITION STATEMENT:  TESTIFIED IN SUPPORT OF HB 334                          
                       (Spoke via offnet)                                      
                                                                               
  SHEILA PETERSON                                                              
  Department of Education                                                      
  801 W. 10th Ave., Suite 200                                                  
  Juneau, AK  99801                                                            
  Phone: 465-2803                                                              
  POSITION STATEMENT:  TESTIFIED REGARDING HB 339                              
                                                                               
  JANICE GREGG LEVY, Assistant Attorney General                                
  Civil Division                                                               
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, AK  99811-0300                                                       
  Phone: 465-3603                                                              
  POSITION STATEMENT:  TESTIFIED REGARDING HB 339                              
                                                                               
  VERNON MARSHALL                                                              
  National Education Association - AK                                          
  114 2nd St.                                                                  
  Juneau, AK  99801                                                            
  Phone:  586-3090                                                             
  POSITION STATEMENT:  TESTIFIED IN OPPOSITION TO HB 339                       
                                                                               
  MICHAEL FORD                                                                 
  Legislative Legal Counsel                                                    
  Division of Legal Services                                                   
  Legislative Affairs Agency                                                   
  Goldstein Building, Room 404                                                 
  130 Seward Street                                                            
  Juneau, AK  99801                                                            
  Phone:  465-2450                                                             
  POSITION STATEMENT:  TESTIFIED REGARDING HB 339                              
                                                                               
  MARY ELLEN BEARDSLEY                                                         
  Department of Law                                                            
  1031 W. 4th Avenue, No. 200                                                  
  Anchorage, AK  99501                                                         
  Phone:  269-5213                                                             
  POSITION STATEMENT:  PRESENTED TESTIMONY REGARDING HB 439                    
                       (Spoke via teleconference)                              
                                                                               
  JERRY KURTZ                                                                  
  Uniform Law Commission                                                       
  Pease & Kurtz                                                                
  1050 Beech Lane                                                              
  Anchorage, AK  99501                                                         
  Phone: 258-6051                                                              
  POSITION STATEMENT:  TESTIFIED IN FAVOR OF HB 439                            
                       (Spoke via teleconference)                              
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB 334                                                                
  SHORT TITLE: 99 YR PENALTY-3RD SERIOUS FELONY OFFENDER                       
  SPONSOR(S): REPRESENTATIVE(S) BUNDE,Olberg                                   
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2014    (H)   PREFILE RELEASED                                 
  01/10/94      2014    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2015    (H)   JUDICIARY, FINANCE                               
  02/28/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 339                                                                
  SHORT TITLE: NO CENSORSHIP: AMERICAN HISTORY DOCUMENTS                       
  SPONSOR(S): REPRESENTATIVE(S) KOTT,Sanders                                   
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  01/03/94      2016    (H)   PREFILE RELEASED                                 
  01/10/94      2016    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/10/94      2016    (H)   HES, JUDICIARY                                   
  01/12/94      2043    (H)   COSPONSOR(S): SANDERS                            
  02/16/94              (H)   HES AT 03:00 PM CAPITOL 106                      
  02/16/94              (H)   MINUTE(HES)                                      
  02/17/94      2436    (H)   HES RPT  2DP 1DNP 3NR                            
  02/17/94      2437    (H)   DP:  KOTT, VEZEY                                 
  02/17/94      2437    (H)   DNP: TOOHEY                                      
  02/17/94      2437    (H)   NR:  BRICE, BUNDE, G. DAVIS                      
  02/17/94      2437    (H)   -ZERO FISCAL NOTE (DOE) 2/17/94                  
  03/07/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 439                                                                
  SHORT TITLE: UNIFORM FRAUDULENT TRANSFER ACT                                 
  SPONSOR(S): JUDICIARY                                                        
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  02/04/94      2256    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/04/94      2256    (H)   LABOR & COMMERCE, JUDICIARY                      
  03/01/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  03/01/94              (H)   MINUTE(L&C)                                      
  03/02/94      2575    (H)   L&C RPT  5DP                                     
  03/02/94      2575    (H)   DP: PORTER,GREEN,WILLIAMS,                       
                              MULDER,HUDSON                                    
  03/02/94      2575    (H)   -ZERO FISCAL NOTE (LAW) 3/2/94                   
  03/04/94              (H)   JUD AT 02:00 PM CAPITOL 120                      
  03/04/94              (H)   MINUTE(JUD)                                      
  03/07/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 94-33, SIDE A                                                           
  Number 000                                                                   
                                                                               
  The House Judiciary Standing Committee was called to order                   
  at 1:42 p.m. on March 7, 1994.  A quorum was present.                        
  Chairman Porter announced that the committee would take up                   
  HB 334 first.                                                                
  HB 334 - 99 YEAR PENALTY - 3RD SERIOUS FELONY OFFENDER                       
                                                                               
  Number 000                                                                   
                                                                               
  CHAIRMAN PORTER noted that in a prior meeting the committee                  
  had received an overview of HB 334 from its sponsor, REP.                    
  CON BUNDE, who was also present at this meeting of March 7,                  
  1994.  Chairman Porter invited Rep. Bunde to provide a                       
  summary of the overview as a basis to begin the meeting.                     
                                                                               
  Number 034                                                                   
                                                                               
  REP. CON BUNDE summarized by saying that HB 334, "requires a                 
  99 year mandatory sentence for someone who is convicted of a                 
  Class A or unclassified felony, after having two previous                    
  convictions for previous felonies.  There are some                           
  amendments that I think you have in your packets.  Rather                    
  than deal with the unamended bill, it would be my                            
  suggestion, if you concur, that we amend the - have a                        
  Judiciary CS and then we'd be dealing with just that."                       
                                                                               
  CHAIRMAN PORTER checked to confirm that EDWARD McNALLY, BARB                 
  BRINK and BRANT McGEE were on the teleconference line and                    
  able to hear the meeting from Anchorage; each responded                      
  affirmatively.                                                               
                                                                               
  REP. BUNDE invited DEAN GUANELI and JERRY LUCKHAUPT, who                     
  drafted the amendments, to join him in presenting the                        
  amendments to HB 334.                                                        
                                                                               
  CHAIRMAN PORTER suggested that the first amendment, J.1, be                  
  designated Amendment 1.                                                      
                                                                               
  Number 119                                                                   
                                                                               
  JERRY LUCKHAUPT, Legislative Counsel for the Division of                     
  Legal Services, Legislative Affairs Agency, introduced                       
  himself and presented Amendment J.1.  He said, "Amendment                    
  J.1 corrects a little problem which the Department of Law                    
  noticed in the draft.  Currently we provide that for certain                 
  cases [indisc. -words drowned out by paper shuffling].                       
  Three years ago when the legislature adopted the 99 year                     
  mandatory prison term for certain first degree murders - for                 
  example, murders of cops, torture murders, things like that                  
  - there was some concern that that mandatory 99 year prison                  
  sentence provision could be read as to exclude the court                     
  imposing consecutive sentences for other crimes that were                    
  being tried at the same time or maybe imposed at the same                    
  time.  And so, the legislature, three years ago, put in the                  
  last sentence that you see in this amendment, saying that                    
  nothing in AS 12.55.125(a), which is the 99 year prison                      
  sentence term, limits the court's ability to impose                          
  consecutive sentences.  All we're doing is expanding that                    
  provision to cover this situation.  We're imposing 99 year                   
  mandatory sentences."                                                        
                                                                               
  MR. LUCKHAUPT termed the amendment a technical and not very                  
  controversial document clarifying the law and preventing                     
  some litigation from occurring in the future regarding                       
  whether or not other sentences could be imposed                              
  consecutively.                                                               
                                                                               
  CHAIRMAN PORTER asked for the draft number under review.                     
                                                                               
  MR. LUCKHAUPT replied, "We're working from the CS ____,                      
  that's dated 2/26/94."                                                       
                                                                               
  CHAIRMAN PORTER and committee members confirmed the position                 
  of the text under discussion.                                                
                                                                               
  Number 179                                                                   
                                                                               
  REP. KOTT moved Amendment 1.  There being no further                         
  discussion or objection, Amendment 1 was adopted by the                      
  committee.                                                                   
                                                                               
  Number 186                                                                   
                                                                               
  MR. LUCKHAUPT presented Amendment J.2.  He said, "Amendment                  
  J.2 is a housekeeping measure.  In an earlier draft of this                  
  bill there was some concern that we might need to specify                    
  that we aren't interfering with the governor's pardon power.                 
  This language goes into a provision that says that these 99                  
  year prison sentences that someone receives under the                        
  section may not be reduced, may not otherwise be reduced.                    
  There was concern at one point that we need to specify that                  
  we aren't interfering with the governor's pardon power, and                  
  that's what this provision says, 33.20.070.                                  
                                                                               
  "The governor's pardon power derives under the constitution                  
  and I see no reason why we need this section in there.  We                   
  also have removed the sections where we were limiting -                      
  well, we were requiring the governor to notify the                           
  legislature; that was in an earlier draft in this bill,                      
  whenever he might grant a pardon or commutation of sentence                  
  for one of these people that received a 99 year mandatory                    
  sentence.  We've removed those provisions from the bill.  I                  
  see no reason to keep this language in the bill.  There's no                 
  reason why we need to say that, we hadn't said that, in                      
  other situations, where the legislature has provided that                    
  sentences may not be reduced.  There's no reason to make a                   
  special occasion here and cause some ambiguity."                             
                                                                               
  MR. LUCKHAUPT further characterized Amendment 2 as a "purely                 
  drafting style type amendment."                                              
                                                                               
  REP. JAMES moved Amendment 2.                                                
                                                                               
  CHAIRMAN PORTER added that he agreed with Mr. Luckhaupt,                     
  "especially hearing the idea that we have not had this                       
  provision in other laws where we have set mandatory                          
  sentencing and extended terms.  While this language may not                  
  serve a disservice to this statute, having it here might                     
  serve a disservice to other statutes where it is not                         
  included - having it pointed out here - so, I would support                  
  Amendment 2."                                                                
                                                                               
  There being no other discussion or objection, Amendment 2                    
  was adopted by the committee.                                                
                                                                               
  Number 240                                                                   
                                                                               
  MR. LUCKHAUPT reviewed Amendment 3.  He said, "Amendment J.3                 
  is an amendment that seeks to equalize the treatment of                      
  offenders, of murderers, that receive mandatory 99 year                      
  prison sentences under current law, with habitual criminals                  
  that will receive a 99 year mandatory sentence of                            
  imprisonment under this law.  It does two things:  (1) it                    
  takes away the `good time' that murderers who receive a                      
  mandatory 99 year sentence of imprisonment receive.                          
  Currently, someone that receives a mandatory 99 year term of                 
  imprisonment for murder is able to earn `good time;'                         
  basically, one-third of their sentence can be cut off, so                    
  that a mandatory 99 year sentence of imprisonment for a                      
  murderer comes out to a 66 year sentence.                                    
                                                                               
  "Under this draft, the people receiving the mandatory 99                     
  year terms of imprisonment as habitual criminals are not                     
  eligible for `good time.'  So, it doesn't seem to make a                     
  whole lot of sense to allow `good time' for murderers who                    
  receive 99 year sentences and not in this case.  So, this                    
  amendment takes away `good time' availability for those                      
  people sentenced to a mandatory term of imprisonment for 99                  
  years for murder, just like we do for habitual criminals,                    
  from the date that this law would take effect.                               
                                                                               
  "But also, with that sort of club, so to speak, we're also                   
  providing a little bit of mercy at the same time, in that,                   
  murderers that are sentenced to a mandatory term of 99 years                 
  currently have the ability to file for a motion for sentence                 
  reduction with the court after they serve half their                         
  sentence, and have their sentence reduced at that time.  The                 
  court would take into account the circumstances.                             
                                                                               
  "I believe one of the reasons the legislature did that three                 
  years ago for these murderers was that after the murderer                    
  has served 49-1/2 years, he may be rather old, and the costs                 
  to the state start going up if the murderer is somewhere in                  
  his 60's or 70's - and the person may not be the same danger                 
  to society as they once were.  We're adding that provision                   
  onto this bill, that these habitual criminals that receive a                 
  mandatory 99 year sentence would be eligible to go to court,                 
  just like the murderers who receive a mandatory 99 year                      
  sentence, after they serve half their sentence, which would                  
  be 49-1/2 years, and ask the court for a sentence reduction                  
  at that time.                                                                
                                                                               
  "This amendment amends, in our view, Alaska Rule of Criminal                 
  Procedure 35, so it would take a two-thirds vote to pass.                    
  So, the first part of the amendment deals with the                           
  amendments to the title, and under decisions of the Alaska                   
  Supreme Court, we have to flag those court rule changes in                   
  the title of the bill and provide a special section                          
  explaining what we're attempting to do.  All we're doing is                  
  equalizing the procedure in this amendment as to `good time'                 
  between these two classes of offenders who receive mandatory                 
  99 year sentences, and their ability to seek a sentence                      
  reduction after they serve half their sentences."                            
                                                                               
  Number 318                                                                   
                                                                               
  REP. KOTT moved Amendment 3.                                                 
                                                                               
  Number 321                                                                   
                                                                               
  CHAIRMAN PORTER said, "If we are taking away, with one                       
  hand... the `good time' credits that would have accrued, but                 
  giving the ability for a review when half the sentence is                    
  [complete], that's in effect what exists now for the 99 year                 
  murder situation."                                                           
                                                                               
  MR. LUCKHAUPT replied, "Not exactly.  Under the current                      
  situation with murderers and cop killers who receive a                       
  mandatory 99 year sentence, they are eligible for `good                      
  time.' They are also eligible after they serve one-half of                   
  their sentence without calculating `good time,' so that's                    
  49-1/2 years they are eligible to ask the court for sentence                 
  reduction.  The habitual criminal bill, HB 334, wants to                     
  take away `good time' for these people who receive these                     
  mandatory 99 year sentences, and so..."                                      
                                                                               
  CHAIRMAN PORTER said, "And that's requiring the court rule                   
  change..."                                                                   
                                                                               
  MR. LUCKHAUPT stated, "Right.  And so, we're balancing out                   
  what the bill is attempting to do with current law dealing                   
  with the earning of `good time' for murderers who receive                    
  mandatory 99 year sentences, and taking the benefit of                       
  current law that goes to murderers and being able to seek a                  
  sentence reduction and applying that to the bill."                           
                                                                               
  Number 353                                                                   
                                                                               
  REP. PHILLIPS commented, "I need this clarified.  If a                       
  person serves time, and gets off time early for `good time,'                 
  they have to still serve 66 years?  Or two-thirds of the                     
  sentence?"                                                                   
                                                                               
  Number 357                                                                   
                                                                               
  MR. LUCKHAUPT explained, "Under current law, dealing with                    
  those individuals that receive a mandatory 99 year sentence                  
  for certain types of murder, they are eligible for `good                     
  time.'  The `good time' amounts to one-third of their                        
  sentence, and the way the Department of Corrections                          
  calculates that, they just take it right off the top.  So                    
  the person would be serving a term of imprisonment of 66                     
  years, the way I understand it."                                             
                                                                               
  REP. PHILLIPS stated, "Then why don't we do away with the                    
  half time thing and just leave them all at 66 years?  That's                 
  when it will really have sunk in their heads that they have                  
  done something wrong."                                                       
                                                                               
  Number 369                                                                   
                                                                               
  REP. BUNDE responded that this was an attempt to address                     
  both a humanitarian and a fiscal problem.  He noted the                      
  example of a person convicted at the age of 30; by the time                  
  he is 75 the cost of keeping him in prison is greater and at                 
  the same time he is unlikely to be physically capable of                     
  posing the same danger to society that he had previously                     
  posed.                                                                       
                                                                               
  REP. PHILLIPS [?] said, "That's an assumption."                              
                                                                               
  Number 379                                                                   
                                                                               
  CHAIRMAN PORTER stated, "To respond to your question, some                   
  of the people that I could see being convicted under this -                  
  which used to be the old habitual criminal - may want to be                  
  reviewed half way through to see whether it would be                         
  appropriate to let them out.  Others may want to be                          
  reviewed, but no way would I or anybody else in their right                  
  mind recommend that they should get out, as opposed to `good                 
  time' which is out."                                                         
                                                                               
  MR. LUCKHAUPT commented, "That is exactly correct.  The                      
  court, in considering a motion for sentence reduction, could                 
  always decide not to grant it, or could reduce the sentence                  
  by 20 years, or something, and still make the person serve                   
  an additional ten or 15 years.  The court does not have to                   
  immediately let the person out.  It's not an all or nothing                  
  shot, there.  But the court has the authority under Rule 35                  
  to consider any reduction in sentence."                                      
                                                                               
  Number 399                                                                   
                                                                               
  REP. NORDLUND said, "I'm just wondering, as a matter of                      
  policy, when we eliminate `good time,' what kind of effect                   
  that will have on the Department of Corrections?  Will that                  
  make it more difficult to manage prisoners, if there is no                   
  incentive for them to be good?  I assume that's the reason                   
  for `good time.'"                                                            
                                                                               
  REP. BUNDE responded, "`Good time, as you pointed out, is                    
  automatic out.  The review for sentence reduction reviews                    
  your performance while you've been in jail.  It still gives                  
  the carrot to behave yourself but it isn't an automatic                      
  out."                                                                        
                                                                               
  CHAIRMAN PORTER invited DIANE SCHENKER of the Department of                  
  Corrections to comment.                                                      
                                                                               
  Number 407                                                                   
                                                                               
  DIANE SCHENKER stated, "I am Diane Schenker from the                         
  Department of Corrections.  The department believes, having                  
  guessed that the average life span of an adult male is going                 
  to be 73-1/2 years, and given the age that offenders are                     
  going to come in for these offenses, that a 66 or a 50 year                  
  term is not going to be a great motive for anyone to behave                  
  particularly in and of itself, whether they are going to be                  
  reviewed with what is probably a fairly remote possibility                   
  of a sentence reduction or whether they are going to have 33                 
  years lopped off that they probably wouldn't have lived to                   
  serve anyway, it's our position that they basically are                      
  going to be in for life; and while that does create some                     
  management problems, as we do have people serving those                      
  kinds of sentences now, 300 and 400 year sentences, as long                  
  as we have something to hang over a prisoner's head, we can                  
  manage the prisoner.                                                         
                                                                               
  "When people see in our budget that we've got GED or work                    
  programs at Spring Creek where a lot of people are doing                     
  life sentences, sometimes they wonder why we would waste                     
  those kinds of resources, because the person is never going                  
  to get out - but, if you give the prisoner something to do                   
  that you can take away, sometimes you can get some much more                 
  cost effective control over an inmate than just using brute                  
  force.                                                                       
                                                                               
  "We would really like to emphasize that with this kind of                    
  sentence we probably need those programs more than ever, and                 
  that's not part of our fiscal note, because it really isn't                  
  an issue in the bill, but that's how we try to control...                    
  [In terms of] the `good time' as opposed to the sentence                     
  reduction, the department doesn't have a strong position                     
  that either one of them would be of particularly more                        
  motivation than the other."                                                  
                                                                               
  Number 454                                                                   
                                                                               
  There being no further discussion or objection, Amendment 3                  
  was adopted by the committee.                                                
                                                                               
  Number 457                                                                   
                                                                               
  MR. LUCKHAUPT discussed Amendment 4.  He said, "Amendment                    
  J.4 recognizes the conspiracy bill that was recently signed                  
  by Governor Hickel... we have to start including it in the                   
  drafting of bills now that we know that it is going to take                  
  effect at some definite time in the future."  He explained                   
  how the amendment integrates conspiracy crimes into the same                 
  category of sentencing law as presently obtains with serious                 
  inchoate crimes.  Mr. Luckhaupt defined inchoate in this                     
  context as `a term that deals with a crime that can be                       
  completed without the ultimate crime actually being                          
  completed."  Thus, the bill puts conspiracy on the same                      
  level as attempt and solicitation.                                           
                                                                               
  Number 491                                                                   
                                                                               
  REP. KOTT moved Amendment 4.  There being no further                         
  discussion or objection, Amendment 4 was adopted by the                      
  committee.                                                                   
                                                                               
  The meeting continued with testimony from BRANT McGEE.                       
                                                                               
  Number 504                                                                   
                                                                               
  BRANT McGEE, Office of Public Advocacy, Department of                        
  Administration, testified in opposition to HB 334 via offnet                 
  from Anchorage.  [Teleconferenced testimony sometimes                        
  difficult to hear clearly.]  "I have a few brief comments                    
  I'd like to address to HB 334.  The first is that I ask that                 
  the legislature recognize that this bill represents a                        
  radical departure from previous legislative thinking with                    
  respect to particular crimes.  Let me give you just two                      
  examples:                                                                    
                                                                               
  "The legislature has previously determined the maximum term                  
  for a Class A felony to be 20 years.  Under certain                          
  circumstances Class A felonies under this bill will be a                     
  mandatory 99 years, some five-fold increase in the severity                  
  of the sanction imposed by law for the same crime.  My                       
  second example that it punishes unintentional crime with                     
  life without parole.  To give you some examples:  if someone                 
  had a prior felony record, including a B felony as listed in                 
  the current version of the bill, and then he was charged                     
  with a vehicular manslaughter or a vehicular second degree                   
  murder, and was convicted, they would receive a mandatory 99                 
  years no possibility of parole.  For vehicular homicide.                     
  Homicide is currently punished at approximately one-fifth                    
  that severity.  I would again ask that you take a careful                    
  look at the kinds of crimes you are now classifying as                       
  worthy of lifetime incarceration.                                            
                                                                               
  "The second thing I would ask you to look at is whether or                   
  not the current presumptive sentencing scheme as it relates                  
  to Class A or unclassified offenders has failed.  I think                    
  that you have to make that conclusion in order to pass that                  
  bill.  For example, I would want to know [indisc.] what                      
  percentage of those unclassified, Class A offenders re-                      
  offend upon release from their term, what is the nature of                   
  the re-offense, what is the recidivism rate for released                     
  murderers who have two prior serious felonies, prior to                      
  their sentencing for homicide.                                               
                                                                               
  "The reasons I think the answers to those questions are                      
  critical to a decision on this matter is that you are                        
  proposing to spend vast sums of money, that is, to commit                    
  your children and grandchildren to spend vast sums of money,                 
  to incarcerate individuals.  I think in order to do that you                 
  have to conclude the current sanctions available under the                   
  law for unclassified and Class A offenders, are inadequate.                  
                                                                               
  "I've been around a presumptive sentencing law for 14 years                  
  now, and I have never yet heard a prosecutor or, frankly,                    
  anyone else, complain, about the length of the sentences                     
  available to the judge upon sentencing third offenders.  The                 
  presumptive terms for those are 15 years for a Class A                       
  felony; 25 years for an unclassified felony.  Those are                      
  merely the presumptive terms.  What they don't include are                   
  the strong chance of aggravating sanctions made available                    
  for sentencing, or consecutive sentencing for other crimes                   
  committed during the same course of conduct.  Consecutive                    
  sentencing is common for people who commit serious felonies                  
  during the same course of conduct.                                           
                                                                               
  "In other words, I think that before you take this fiscal                    
  bite, and make your fiscal commitment, you need to have some                 
  evidence that what we're doing now with serious repeat                       
  felony offenders, is inadequate.  I've yet to hear the                       
  evidence.  Thank you very much."                                             
                                                                               
  Number 570                                                                   
                                                                               
  REP. BUNDE said,  "Just a comment.  One, this bill does                      
  include latitude for prosecutorial discretion, so that these                 
  inadvertent crimes that we're talking about - the example of                 
  the vehicular homicide - wouldn't necessarily be tried under                 
  this statute.  And, as was pointed out, a third serious                      
  felony would be a 15 year minimum sentence.  Take off one-                   
  third for `good time,' and now we begin to see the revolving                 
  door."                                                                       
                                                                               
  Number 582                                                                   
                                                                               
  BARB BRINK, Public Defender Agency, Department of                            
  Administration, presented testimony in opposition to HB 334                  
  via teleconference from Anchorage.  She challenged the                       
  factual premise of HB 334 and posited an outcome which could                 
  include: (a) disparities and unjust severity in sentencing;                  
  (b) oppressive costs to the state of Alaska; (c)                             
  disincentives for positive behavior among incarcerated                       
  offenders; (d) coercive prosecution; and (e) loss of civil                   
  rights for Alaska citizens.  Ms. Brink described the                         
  beneficial effects of presumptive sentencing now in force                    
  and outlined the significant length of sentences without                     
  parole already in existence for third offenders of Class A                   
  and unclassified felonies.                                                   
                                                                               
  MS. BRINK stated, "We seem to be operating under the factual                 
  premise that somehow dangerous people are getting out of                     
  jail too soon, and this is the problem we need to address.                   
  I dispute that premise."  She continued, "I have not heard                   
  any evidence to support that claim.  Before we take all of                   
  these steps to change radically the system that was                          
  carefully devised to improve uniformity in sentencing and to                 
  eliminate unjust severity, I think we should have hard proof                 
  that the system that we have in order is not working.  My                    
  experience as a public defender for almost 12 years is that                  
  the system is indeed working."                                               
                                                                               
  Regarding presumptive sentencing, MS. BRINK noted, "No                       
  unclassified or Class A felon that's a third offender who                    
  gets 25 or 15 years is eligible for parole.  We have truth                   
  in sentencing for this state, and the sentences are already                  
  extreme."                                                                    
                                                                               
  MS. BRINK discussed the costs attendant to implementing the                  
  legislation.  She said, "Current figures project                             
  approximately $41,000 a year on the prisoner.  If we are                     
  going to add 15-30 prisoners a year, and add jail time                       
  sentences for the rest of their lives, it will be an                         
  incredible cost, and we must ask, what is our goal here?                     
  Are there people who are getting out too early?  There are                   
  not.  There are also going to be increased litigation costs,                 
  particularly in my agency, the Public Defender Agency, and                   
  the prosecutor.  Cases charged under this section in which                   
  the prosecutor exercises his discretion are much more likely                 
  to result in trial; you are now taking cases and giving them                 
  the most onerous penalty available in the state.  There will                 
  be increased investigation, increased motion practice, we                    
  are much less likely to reach a resolution on these cases                    
  which will result in more jury trials.  That will be an                      
  added burden on the system that we cannot ignore.  There                     
  will also be increased collateral effect...."                                
                                                                               
  MS. BRINK emphasized that competent representation of                        
  alleged third time offenders would now require a tremendous                  
  increase in time and costs, which would be further increased                 
  and complicated if any prior convictions had occurred out-                   
  of-state; out-of-state records and court decisions would                     
  need to be thoroughly reviewed by Alaska courts.                             
                                                                               
  MS. BRINK also addressed the negative impact of removing                     
  "good time" incentives for good behavior in prison.  She                     
  said, "I would disagree that `good time,' or the idea of                     
  having a sentence review in 15 years, has the same impact on                 
  a prisoner..."  She noted that immediate sanctions "are a                    
  much more effective tool to encourage positive behavior than                 
  telling somebody, well, behave yourself for 49 years, and                    
  then, maybe, the judge might cut you some slack."                            
                                                                               
  MS. BRINK praised Alaska's current sentencing scheme for                     
  habitual offenders which had been instituted by past                         
  legislation attempting to redress disparities in sentencing.                 
  She stated, "Alaska has some experience with an habitual                     
  offender law.  In fact, we know from Judicial Council                        
  studies that Alaska's sentencing system previously was full                  
  of disparities, full of injustice.  That was why the                         
  legislature took out on the task of imposing the presumptive                 
  sentencing scheme.  The goal was uniformity in sentencing.                   
  The goal was to reduce disparity....  We will once again                     
  lose that uniformity and that fairness that we tried so hard                 
  to achieve with presumptive sentencing."  She reiterated, "I                 
  have heard no heard no evidence that the presumptive                         
  sentencing scheme is not working."                                           
                                                                               
  MS. BRINK warned of potential loss of civil liberties,                       
  including the right to a fair hearing, for citizens of                       
  Alaska.  She said, "I object very strongly to any kind of                    
  bill that gives a prosecutor a coercive tool to try to force                 
  people into giving up their rights."  She cautioned that                     
  possession of such a coercive tool, the specter of 99 year                   
  prison terms without parole, could engender unethical                        
  practices among prosecutors in the absence of substantial                    
  evidence.  Ms. Brink concluded by urging opposition to HB
  334.                                                                         
                                                                               
  Number 687                                                                   
                                                                               
  EDWARD E. McNALLY, Acting Deputy Attorney, Criminal                          
  Division, Department of Law, testified via offnet in support                 
  of HB 334. Mr. McNally championed the bill as being,                         
  primarily, an appropriate response to the "changing                          
  criterion of community condemnation" and to the public's                     
  perception of what is required for justice to be achieved.                   
  He espoused the bill secondarily as an effective public                      
  safety measure with little or no inherent risk of abusive                    
  applications.  Mr. McNally asserted that the bill avoided                    
  pitfalls of other anti-crime legislation by maintaining an                   
  integrity of purpose while retaining the flexibility of, for                 
  example, prosecutorial discretion, thus protecting citizens                  
  from the "Washington State... kind of mechanical, almost                     
  mathematical machine that simply grinds up defendants who                    
  meet the right boxes on chart."                                              
                                                                               
  MR. McNALLY remarked, "I think that the Department of Law is                 
  very grateful, and the Criminal Division is particularly                     
  grateful, to the sponsor who has worked closely with us in                   
  trying to hammer out a three-strikes bill that is unique to                  
  Alaska, that works with Alaska's, not only its legislative                   
  statutes but also its practices in this state."                              
                                                                               
  MR. McNALLY responded to the concerns of Mr. McGee and Ms.                   
  Brink and asserted that the bill was not a departure from                    
  previous legislative efforts, but rather was "...a natural                   
  extension of the progress the legislature has recently made                  
  in addressing just sentences for the crimes that Alaskans                    
  are rightfully most concerned about.  We've heard some of                    
  the others who have testified characterize why presumptive                   
  sentencing came about.  I know that there are participants                   
  in today's hearing who were practicing when presumptive                      
  sentencing came about, or who were part of the legislature.                  
  My understanding has been that, frankly put, many in the                     
  legislature and many of the citizenry were dismayed with the                 
  sentences that were being handed down by the courts - not                    
  only with the severity issues that Ms. Brink raised, but                     
  also the simple fact that the sentences were not severe                      
  enough to address the issue of justice."                                     
                                                                               
  MR. McNALLY cited the case of CHICO RODRIGUEZ, who was                       
  convicted of sexual offenses against 11 Alaska children, as                  
  an example of sentencing under current law which may be                      
  calamitous for victims.  Mr. McNally described the evolution                 
  of Mr. Rodriguez's sentence reduction:  "This is a man who                   
  was convicted of child sexual molestation... ultimately he                   
  was convicted of offenses against 11 Alaska children.  He                    
  was sentenced initially to 133 years, then it was reduced to                 
  83 years, then it was reduced to 48 years; most recently, it                 
  was reduced to 24 years, and we'll be having the man who was                 
  convicted in 1983, where his victims believed he would be in                 
  jail potentially for the rest of their lives - now they                      
  learn that he may be released on mandatory parole in as                      
  little as four years from now."                                              
                                                                               
  MR. McNALLY did note, however, that the three-strikes law                    
  would not have applied in the Rodriguez case because the                     
  offender was prosecuted for all of the offenses at the same                  
  time.                                                                        
                                                                               
  Number 750                                                                   
                                                                               
  MR. McNALLY analyzed and praised prosecutorial discretion                    
  and noted that, given its potential to protect defendants                    
  from machine-like sentencing, it is also spoken of favorably                 
  in the defense realm on many occasions                                       
                                                                               
  MR. McNALLY remarked, "I'd also like to respond to Mr.                       
  McGee's sense that the focus of these hearings ought to be                   
  whether there is evidence of recidivism and whether people                   
  have re-offended after the release...."  He explained that                   
  the issue of public safety was not the sole occasion for HB
  334, saying, "The reason for this legislation is also for                    
  justice.  And when I refer to justice in this context, I'm                   
  talking about the changing criterion of community                            
  condemnation."                                                               
                                                                               
  Noting that the results of a referendum in Washington - the                  
  state closest to Alaska - had shown that "76% of the men and                 
  women who voted... believed that community condemnation                      
  means `three strikes and you're out,'" MR. McNALLY stated                    
  that "there's no indication in many conversations with both                  
  sponsors and citizenry... that their focus is on simply                      
  public safety.  The primary focus appears in fact to be                      
  justice.'                                                                    
                                                                               
  MR. McNALLY agreed substantial legal work was involved in                    
  "any sentencing that involves such high stakes, and on                       
  behalf of the prosecution I would say, simply, we welcome                    
  that litigation.  We already litigate aggressively and                       
  extensively, sentences in capital-type cases, in murder                      
  cases, and other serious cases... all of those sentences are                 
  appealed already, and I guess, the real point is, sentencing                 
  litigation is pretty extensive as it is now."                                
                                                                               
  MR. McNALLY refuted the suggestion that prosecutorial                        
  discretion could become "a tool to reach resolution where                    
  perhaps the prosecution doesn't have sufficient evidence."                   
  Emphasizing this point, he said again that prosecutorial                     
  discretion would not become "a tool in order to allow us to                  
  browbeat out sentences in cases where the evidence doesn't                   
  convict, on merit, a conviction.  Our standard of proof is                   
  proof beyond a reasonable doubt."                                            
                                                                               
  Number 806                                                                   
                                                                               
  REP. DAVIDSON said, "Mr. McNally, the approach of which you                  
  speak, it seems to me, is a jam! slam! bam! approach to                      
  filling up the correctional pipeline.  You've picked out a                   
  couple of almost hideous examples it seems, but should we                    
  pass this legislation on the basis of one or two - are they                  
  exceptional, unique - examples?  I'm not sure.  My question                  
  is, it sounds like your part of the task of getting people                   
  who are dangerous to society behind bars or away from people                 
  who don't want to be around people like that, is laudatory.                  
                                                                               
  "However, it seems to me that there are other parts to the                   
  puzzle here.  One is, of course, what do you see the result                  
  of the budgets necessary to pass this kind of legislation?                   
  We know that we're already facing increased prison                           
  populations, and when you take away the flexibility or the                   
  discretion of the judge, or in this instance the prosecutor,                 
  where would you be if in fact you were sitting in a                          
  different seat in the process?                                               
                                                                               
  "Secondly, could you give us the numbers that people keep                    
  saying that there simply is no evidence to indicate that the                 
  problem is as great as this bill would address?"                             
                                                                               
  Number 833                                                                   
                                                                               
  MR. McNALLY responded that he had heard that approximately 6                 
  to 12 Alaskans per year might be involved, but he could not                  
  confirm this figure and asked for clarification or                           
  correction from a member of the Department of Corrections.                   
                                                                               
  Number 855                                                                   
                                                                               
  MS. SCHENKER of the Department of Corrections referred                       
  committee members to the fiscal note submitted by her                        
  department.  She explained the complications of the                          
  different formulae employed by Corrections in arriving at                    
  numbers of prisoners to be impacted by HB 334.  The                          
  approximate number of Class B felony offenders appeared to                   
  be 10.  However, the figure for all felons was higher.                       
  Applying the extensive formulae involved, Ms. Schenker                       
  concluded, "We estimate a total of, in the first version of                  
  the bill, 162,000 prisoner days, which would actually be 445                 
  prisoners, eventually, over the course of 46 years."                         
                                                                               
  MS. SCHENKER said that rough recalculations had been done                    
  for the second version of the bill, but they did take into                   
  account the effect of the amendments discussed on this date.                 
  She analyzed further the formulae of the fiscal note.                        
                                                                               
  TAPE 94-33, SIDE B                                                           
  Number 000                                                                   
                                                                               
  MS. SCHENKER said, "Without the Class B felonies it will be                  
  zero.  The only other thing I could add is that, with the                    
  addition of prosecutorial discretion, the intent is probably                 
  to help reduce some of the cost.  It does make it very                       
  difficult for our department to estimate the cost.  And, in                  
  fact, it can make the cost more immediate, because if the                    
  effect of the prosecutorial discretion is to use this as a                   
  tool in plea bargaining, then, rather than waiting for 20                    
  year sentences to turn into 45 year sentences, we may have a                 
  higher increase in less than Class A and unclassified                        
  felonies; in other words, when someone commits a most                        
  serious felony, if the prosecutorial discretion is used to                   
  bargain that down to a lower felony that doesn't fall under                  
  this sentencing scheme, then we may see an increase in those                 
  bargained down felonies in an immediate sense.  In other                     
  words, they would have gone to trial, but if you, when plea                  
  bargaining occurs, what happens to our population is, we                     
  might get more people with shorter lengths of time.  That                    
  makes it a more immediate impact.   We have no way to                        
  predict, because - even if anyone could predict it, policies                 
  change in the prosecutor's office and we can't ever be                       
  assured of what would happen in the future as far as how                     
  that works."                                                                 
                                                                               
  Number 048                                                                   
                                                                               
  CHAIRMAN PORTER stated, "Let me suggest one other one that                   
  might, at a minimum, offset that, if not make some more.  If                 
  you had somebody who was sentenced to the 46 rather than the                 
  20, considering the 85% recidivism rate of people at that                    
  level of criminal experience, you'd probably save yourself                   
  some that you were projecting anyway, because he's still                     
  there."                                                                      
                                                                               
  MS. SCHENKER responded, "Correct.  Also, again, at that                      
  higher age group, all of our numbers used are standard cost                  
  per day, which means that the overhead for medical cost is                   
  just the average medical, but, right now, less than 1                        
  percent of our prison population is over the age of 65.                      
  And, obviously, in a very long time, but in an inevitable                    
  long period of time, a much larger percent will be over that                 
  age.  Also, some experience from other states suggests that                  
  if it's up to the inmate to ask for the sentence reduction,                  
  a person who has been institutionalized for 30 or 40 years,                  
  and who is experiencing some medical problems, may or may                    
  not want to be asking for that sentence reduction because                    
  the person may or may not feel, whether it's a correct                       
  perception or not, that they'll receive the kind of                          
  institutionalized care that they need at that point.  So                     
  that's another concern.                                                      
                                                                               
  Number 086                                                                   
                                                                               
  REP. JAMES stated, "I'm surprised at the small number of                     
  people that would fall into this category.  I thought there                  
  would be more than that.  I am amazed.  I suppose that every                 
  time that you have someone doing a real serious crime out                    
  there, and you put them away, then you know they're not                      
  going to do that again, so there's going to be maybe - maybe                 
  - some reduction in the crime that happens out there.  But I                 
  really am amazed that the number is so small of the people                   
  that fall into this category."                                               
                                                                               
  Number 104                                                                   
                                                                               
  MS. SCHENKER said, "We asked for help from the Judicial                      
  Council and we actually did a file review ourselves, and                     
  actually we were a little surprised [indisc.].  [There was                   
  a] much, much higher number of repeat felons, but when you                   
  isolate it down to the specific violent felonies that the                    
  sponsor included in the bill, it really does go down to                      
  quite low [numbers]."                                                        
                                                                               
  Number 113                                                                   
                                                                               
  REP. JAMES commented, "From my perception of being out there                 
  in the general public, and what you hear, and what you read                  
  in the paper, and so forth, my perception is there would be                  
  more of these people.  Is it possible that the reason that                   
  there aren't any more of them is because some of them have                   
  already plea bargained down, and so they're being                            
  incarcerated for a lesser crime than they really were guilty                 
  of?"                                                                         
                                                                               
  MS. SCHENKER said, "It's entirely possible.  Again, any                      
  effect of plea bargaining is unmeasurable by our department                  
  because there's no way to get that information from any data                 
  that's available to us without individual file reviews that                  
  we would have to get from the Department of Law, so we have                  
  no way of knowing that.  I'm sorry."                                         
                                                                               
  Number 133                                                                   
                                                                               
  REP. NORDLUND stated, "I guess I agree with Rep. James that                  
  maybe there aren't that many people that this applies to,                    
  that maybe there's this public perception that is somewhat                   
  mistaken that people after they've committed a couple of                     
  serious felonies can commit a third and still not serve                      
  significant time, and that maybe this bill is attempting to                  
  solve a problem that doesn't really exist.  But I have a                     
  question, or a request for Diane and the Department of                       
  Correction; I'd be curious to see what the nature of the                     
  crimes have been of the people who this would apply to.                      
  What was the first, second and third felony that they                        
  committed?  In other words, to take real life examples, as                   
  opposed to sensational examples, that Mr. McNally used, that                 
  actually wouldn't even apply under this bill."                               
                                                                               
  [UNIDENTIFIED VOICE] stated, "Those are pretty real life,                    
  though.  You can't separate real life from..."                               
                                                                               
  REP. NORDLUND said, "Okay, that was an improper use of                       
  terms.  Not real life examples, but, more average examples,                  
  let me put it that way, of the kinds of series of crimes of                  
  which somebody would come in under this.  I am very                          
  sympathetic to the public's concern that there perhaps are                   
  people who have committed a third felony who are still out                   
  there continuing to commit those crimes, and I am very                       
  concerned that the public safety is being compromised in                     
  those situations.  But it's not hard to imagine a certain                    
  series of crimes here in which, [after] the third                            
  commission, you would not want to have that person put away                  
  for 99 years.  I look at manslaughter and assault and escape                 
  - there might be circumstances in those particular                           
  situations in which you would not want to have somebody have                 
  a 99 year sentence imposed upon them.  I would like to come                  
  up with, maybe, some examples where we wouldn't want to                      
  impose a 99 year sentence."                                                  
  Mr. McNally used an extreme example.                                         
                                                                               
  Number 185                                                                   
                                                                               
  MS. SCHENKER stated, "I can't respond completely.  I will                    
  say that one of the problems we had in compiling this data                   
  and one of the caveats I should make is that confusion as to                 
  concurrent convictions makes this data a little more                         
  inaccurate.  If the first two felonies could be taken from                   
  one event, and the third has to be after that conviction as                  
  a later felony, it is not possible for us, the way that we                   
  get our data off our computer, to really isolate those                       
  double convictions.  And so we may not have picked some of                   
  those up; in fact, we probably did not, and I am not sure                    
  that we will be able to.                                                     
                                                                               
  "In answer to your question, the only way that we can answer                 
  your question is to actually pull individual files and read                  
  them, and we just don't have the staff resources to do that.                 
  We did ten files, which is a very small, unscientific                        
  sample, for this -- fortunately, when we did the ten                         
  individual files it backed up what we'd kind of guessed from                 
  the data."                                                                   
                                                                               
  CHAIRMAN PORTER stated, "This requires that two or more                      
  convictions out of the same event would not be considered,                   
  is that not correct?"                                                        
                                                                               
  Number 222                                                                   
                                                                               
  MS. SCHENKER asked, "In any of the three strikes?"                           
                                                                               
  CHAIRMAN PORTER said, "That's right."                                        
                                                                               
  MS. SCHENKER responded and continued, "Okay.  And the other                  
  point that we did notice is that a lot of people -- one of                   
  the reasons the number might be smaller than some people                     
  imagine is that since the bill addresses very serious                        
  felonies in the first place, they got long sentences, then                   
  they did have a period of mandatory supervision, the SGT                     
  `good time' that we talked about, plus possibly any                          
  probation.  And so, when those people re-offend, it's much                   
  likelier that they are back in on a probation or parole                      
  violation, which does not, at least in our analysis, count                   
  as one of the three subsequent strikes, even though in fact                  
  it's not uncommon for a parole violation to be another                       
  felony.  But it's easier to violate someone's parole than to                 
  retry them for that felony, so, they may already have been                   
  returned for a significant period of time.  You could have                   
  got years and years of probation violations, and that could                  
  still only be their second.  So, I think, what we found of                   
  the few files we were able to review, was that sex offenders                 
  and drug crimes were the likelier to be repeated.  You                       
  didn't very often get somebody doing two different murders                   
  or certainly manslaughters on different occasions."                          
                                                                               
  [UNIDENTIFIED VOICE] said, "I can think of one or two..."                    
                                                                               
  MS. SCHENKER responded, "It can happen, but it's so rare,                    
  whereas the examples that we did find did involve sex                        
  offenses or drug crimes.  And most of the felons we found                    
  had thefts and misdemeanors and other crimes, that are not                   
  addressed in the bill, on their priors."                                     
                                                                               
  Number 213                                                                   
                                                                               
  CHAIRMAN PORTER, noting that no one else was scheduled to                    
  testify, asked for the wish for the committee.                               
                                                                               
  REP. BUNDE asked to do a brief wrap-up.                                      
                                                                               
  Number 261                                                                   
                                                                               
  REP. BUNDE advised the committee they would be receiving a                   
  more accurate and updated fiscal note reflecting changes.                    
  He went on to stress the disproportionate effect on society                  
  of the serious repeat felony offenders whose criminal acts                   
  constitute the focus of HB 334.  Discussing the figure of                    
  five to ten people per year, REP. BUNDE urged the committee                  
  to remember that "...these five to ten people... commit an                   
  amazing amount of mayhem and make victims out of society,                    
  trap people in their fear; even if they are not the actual                   
  victims, they're victims of a fearful society.  We've talked                 
  about money, and what it costs; what will it cost our kids                   
  if they are indeed victims of this admittedly minority,                      
  small group of people who are such fearful repeat offenders?                 
                                                                               
  "I don't have any sociological data.  I just have anecdotal                  
  stories that we've all heard at these various crime                          
  meetings.  The general public is very fearful of this small                  
  group of people, and they're asking for some action, and I                   
  certainly hope you give it to them."                                         
                                                                               
  Number 287                                                                   
                                                                               
  REP. NORDLUND said, "Unfortunately, I was not here for the                   
  first hearing on this bill.  I am a little torn on it right                  
  now.  I do support it, in some ways, and in other ways I                     
  feel perhaps the net we are casting here is a little bit too                 
  broad, particularly in the inclusion of Class A felonies.  I                 
  would like to have a little bit more time, just to feel more                 
  comfortable about the kinds of crimes here we're including.                  
  So, I would hope that we don't pass this out today."                         
                                                                               
  Number 200                                                                   
                                                                               
  REP. KOTT remarked, "I think we've heard quite a bit of                      
  testimony, and I, like the sponsor, at many of the crime                     
  summits, heard, anecdotally, that there are a number of                      
  problems out there, and really, we are dealing with a very                   
  small group of individuals, and I don't think the fiscal                     
  ramifications are going to be such that we won't be able to                  
  address it fiscally.  So, I would be in favor of moving this                 
  bill.  I don't think there are any constitutional                            
  consequences that we haven't already addressed.  Therefore,                  
  I would move that we move the bill out of committee."                        
                                                                               
  Number 311                                                                   
                                                                               
  REP. DAVIDSON said, "Anecdotal basis for public policy may                   
  be fine in some respects, but when we're talking about fear                  
  - I can understand people's fear - but I think we need to                    
  examine this piece of legislation a little more carefully                    
  and try to understand what it is about that fear that these                  
  individuals are generating; and, in fact, does this [bill]                   
  address the fears of people?"                                                
                                                                               
  REP. DAVIDSON stated that if "the people who are working                     
  most closely with these types of individuals... say the                      
  problem is certainly not as great as we may think, I don't                   
  want to be rushed into a public policy, because I don't                      
  think it's good public policy, then.  I would be in favor of                 
  holding off a little bit longer until we've gotten, in fact,                 
  past the anecdotal basis for passing this legislation                        
  [before moving it] on to the next committee, and try to come                 
  up with a more realistic fiscal note, as well as the facts                   
  that would address the problem that we face a little more                    
  accurately."                                                                 
                                                                               
  Number 343                                                                   
                                                                               
  REP. JAMES stated, "I will vote to move this out of                          
  committee today, but I would like to share some concerns                     
  that I have about the bill, and I have plenty of time to                     
  think about that between now and the time it gets on the                     
  floor."  Rep. James expressed concern that the magnitude of                  
  the sentencing imposed by HB 334 would precipitate a rise in                 
  plea bargaining, "and a lot more people will be having a                     
  lesser charge, just to be able to not have to go trial."                     
  She lauded the bill, however, for its response to the wishes                 
  of the people, saying, "I think that it does meet the needs                  
  of what the people are asking for, because the people are                    
  very concerned about crime."                                                 
                                                                               
  REP. JAMES suggested again that the low statistical count of                 
  pertinent offenders might be due to plea bargaining.  She                    
  cautioned, "I suspect that the things we read about in the                   
  paper may not correlate to the terms of penalty that are                     
  given.  So I am a little bit concerned about that."                          
                                                                               
  REP. JAMES also questioned the utility of imposing "a                        
  penalty that they... can't even ask for parole, until after                  
  [their] average life span has gone by; [it] seems to me to                   
  be another thing -- that maybe we're going to be spending a                  
  lot of money to incarcerate someone who, for any number of                   
  good reasons, might have been able to have gotten released,                  
  maybe by a complete change of heart or some other kinds of                   
  things that could have happened to them."                                    
                                                                               
  REP. JAMES concluded, "I have a little problem with the                      
  bill, but I am going to vote to move it out, because I think                 
  we've probably done everything to it that we can do at this                  
  point in time without including emotionalism."                               
                                                                               
  Number 380                                                                   
                                                                               
  CHAIRMAN PORTER stated that he too would be voting to move                   
  the bill out of committee.  Chairman Porter expressed                        
  surprise that testimony heard by the committee had not                       
  included what he recognized as a significant feature of HB
  334 - its deterrent effect.  He said, "That is, the ability                  
  to use this severe penalty as a deterrent for younger                        
  offenders who, for whatever reason, have had one or two                      
  crimes, and can be taken aside and read this statute, and                    
  say, `Do you know how close you are to going away for life?'                 
  I have seen people redirect their life from just that                        
  realization."                                                                
                                                                               
  CHAIRMAN PORTER noted as well, "I have seen people redirect                  
  their location back to whence they came when they found out                  
  that that statute was on the books in Alaska."                               
                                                                               
  CHAIRMAN PORTER praised inclusion of prosecutorial                           
  discretion in the bill.  He further commented that, "...the                  
  aggressive crimes have to be progressively more severe.  You                 
  can't go backwards and then back into a 99 year sentence."                   
                                                                               
  Number 406                                                                   
                                                                               
  REP. DAVIDSON said, "I'd just like to add that if we                         
  continue to give people who have to make the final decisions                 
  on these individuals fewer options, less flexibility, less                   
  discretion, and we're going to give them fewer resources                     
  with which to do the job - so often we've seen the result of                 
  putting something in a pipeline here and, in a few years we,                 
  lo and behold, we get to see the result of our actions...                    
  It just seems to me that we could get maybe some more input                  
  from the judicial system.  I would like to hear some more                    
  from those people on the front line, like yourself, as you                   
  used to be, as well as the public defenders who have been                    
  down into the nitty gritty of this problem.  I just have                     
  this feeling that we can do better with this piece of                        
  legislation, so I would urge us to examine it a little more                  
  thoroughly and hear the people out who have the most                         
  experience in dealing with these kinds of problems, and then                 
  see if we can't make some changes that would more                            
  realistically address the problem."                                          
                                                                               
  CHAIRMAN PORTER asked the committee for its wishes.                          
                                                                               
  REP. KOTT made a motion to move the bill out of committee.                   
                                                                               
  REP. DAVIDSON stated objection and a roll call vote was                      
  called.  Reps. Nordlund and Davidson voted "No" and Reps.                    
  Phillips, Kott, James and Porter voted "Yeah."  HB 334, as                   
  amended, with a fiscal note to be provided by the Department                 
  of Corrections, was therefore moved out of committee.                        
  HB 339 - NO CENSORSHIP:  AMERICAN HISTORY DOCUMENTS                          
                                                                               
  CHAIRMAN PORTER introduced discussion of HB 339, sponsored                   
  by Rep. Kott.                                                                
                                                                               
  Number 463                                                                   
                                                                               
  REP. PETE KOTT noted that committee members had copies of                    
  the sponsor statement and said he would cover a couple of                    
  the highlights.  He stated, "The proposed bill, relating to                  
  the use of historical documents in public schools, is really                 
  what I would call enabling legislation.  It is best                          
  described as an academic freedom measure as it clarifies                     
  original source documents of American history that can and                   
  should be used to teach our children about American history                  
  in our schools, regardless of content, even though many                      
  times content may be explicitly religious.  Basically, this                  
  is an option to allow teachers that are teaching history to                  
  use the original source documents to teach our students                      
  about their heritage.  Whether we like it or not, the early                  
  1700s and 1800s found that - there are religious ideas                       
  imbedded in many of the historical documents.  Some of those                 
  historical documents include Washington's farewell address,                  
  the Mayflower Compact.  So with that, Mr. Chairman, I would                  
  ask that we support this measure and allow those teachers                    
  that desire to use the historical documents be given them                    
  the ability to use them.  I'll entertain any questions."                     
                                                                               
  Number 492                                                                   
                                                                               
  SHEILA PETERSON, Special Assistant to Commissioner Covey,                    
  Department of Education, testified in support of HB 339.                     
  She said, "The Department of Education certainly is                          
  committed to academic freedom, and is opposed to any effort                  
  at censorship.  We support the free use of historical                        
  documents in the public schools.  In fact, it appears                        
  currently that that is the case.  No one has come to the                     
  department, expressed a concern that they have been denied                   
  or restricted in use of historical documents.                                
                                                                               
  "As HB 339 is currently written, however, the department                     
  does have some concerns.  I'd like to briefly discuss those                  
  with you today.  On page 2, line 9, paragraph (c), it states                 
  that `The teacher or the administrator cannot be disciplined                 
  for using a historical document.'  In a way this risks the                   
  allowing of blanket immunity.  The inappropriate use of a                    
  document or any teaching material should be open to                          
  disciplined or other appropriate actions.  A similar concern                 
  is on page 2, line 6, which says that `The use of a                          
  historical document does not constitute the avocation of a                   
  partisan, sectarian denominational doctrine.'  Possibly                      
  certain use of a historical document, if it's used                           
  inappropriately, may be advocating a denominational                          
  doctrine.                                                                    
                                                                               
  "Also on page 2, line 4, states that `A historical document                  
  may not be altered to remove religious or secular                            
  references.'  Possibly this will in effect restrict the use                  
  of historical documents if it means that the document cannot                 
  be altered or abbreviated in any fashion.  A fifth grade                     
  teacher may wish to use a document that they would like to                   
  abbreviate to allow that student to follow what is being                     
  said, but because this language says that they may not                       
  remove any religious or secular reference, it may in fact                    
  have just the opposite effect of what we really would like                   
  to see.  We would like to see the use of historical                          
  documents used freely within our public schools.                             
                                                                               
  "To reassure teachers that there is no concern, possibly the                 
  committee would like to consider a cleaner and simpler                       
  approach to this problem if there in fact is a problem.                      
  Section 14.03.090 currently states that `partisan and                        
  sectarian or denominational doctrines may not be advocated                   
  in a public school,' and if they are, that the school may                    
  not receive public money.  [We recommend] possibly just                      
  amending that sentence to say something to the effect that                   
  `this section does not prohibit the use or the appropriate                   
  use of historical documents with religious references.'                      
  Maybe this amendment, a simple approach, a cleaner approach,                 
  with taking away the possible blanket immunity that is                       
  currently in HB 339.                                                         
                                                                               
  "So I guess the Department of Education would like to have                   
  you consider possibly changing the bill and just taking a                    
  simple and cleaner approach to this problem, if in fact you                  
  determine there is a problem."                                               
                                                                               
  REP. NORDLUND inquired if Ms. Peterson had seen the CS being                 
  considered by the committee that very day and suggested that                 
  it might be the cleaner, simpler approach to which she was                   
  referring.  She replied that she had not, and a copy was                     
  provided for her review.                                                     
                                                                               
  MS. PETERSON said, "The Department of Education would                        
  appreciate this committee substitute.  We do agree with it."                 
                                                                               
  Number 572                                                                   
                                                                               
  REP. PHILLIPS stated, "In the Judiciary committee                            
  substitute, it states that `nothing prohibits the use of                     
  historical documents that contain religious references.'  I                  
  wonder how that relates to the original bill, which says                     
  `the avocation of partisan, sectarian or denominational                      
  doctrine.'"                                                                  
                                                                               
  CHAIRMAN PORTER noted, "The beginning of this section                        
  already does that."                                                          
                                                                               
  Number 581                                                                   
                                                                               
  JAN LEVY, Assistant Attorney General, Department of Law,                     
  commented as requested on HB 339.  He said, "The department                  
  didn't see that in current law there would be any legal                      
  impediment at the present time to use historical documents                   
  with religious references.  So, at the outset, that's the                    
  opinion of the department.  If there is concern from                         
  districts or teachers, I think the clarification that Sheila                 
  was describing and that apparently is represented in the                     
  committee substitute would do the job.  At a glance at this,                 
  I don't think the department would have any legal concerns                   
  at all about this amendment.                                                 
                                                                               
  "It had a couple of concerns about 339 as we looked at it                    
  that really reiterate what Sheila had to say.  Specifically,                 
  in the statement made in (b) on page 2, [that] is actually                   
  kind of a legal conclusion that a court might not even                       
  necessarily agree with, and so, as Sheila had mentioned,                     
  there certainly could be use of a document that contained                    
  religious references that could, if used incorrectly, be                     
  advocating some partisan or sectarian or denominational                      
  doctrine.  And also the same concern regarding the rather                    
  sweeping statement in (c), that there could be no discipline                 
  for any use of any document.  And I think those are really                   
  the main issues that were of concern to the Department of                    
  Law."                                                                        
                                                                               
  Number 618                                                                   
                                                                               
  REP. DAVIDSON remarked, "Ms. Levy.  Basically, it sounds to                  
  me what you've said is that this legislation is not                          
  necessary.  Is that correct?"                                                
                                                                               
  Number 662                                                                   
                                                                               
  MS. LEVY replied, "The department didn't see that there was                  
  a need for it, although we're not aware of concerns being                    
  raised."                                                                     
                                                                               
  REP. DAVIDSON said, "So why are we in this exercise?"                        
                                                                               
  CHAIRMAN PORTER answered, "To find out whether we have any                   
  concerns expressed or not."                                                  
                                                                               
  Number 629                                                                   
                                                                               
  REP. JAMES said, "I wanted to ask a legal question.  The                     
  concern that you just stated about `the public school                        
  teacher or administrator who uses a historical document may                  
  not be disciplined or otherwise acted against for using the                  
  document' - didn't you say, and I would agree with you, that                 
  it's not necessarily to be using the document, it is how it                  
  is used, and what kind of an advocacy might be given from                    
  the document?  So, if that were the thing - which it does                    
  say that they can't advocate anything - if they used a                       
  historical document, and they advocated something from that                  
  document, wouldn't the charge to that teacher then be the                    
  advocacy more than it would be the using the document?  I                    
  don't see that using the document by itself, here, would be                  
  a problem that would encourage them to do it incorrectly."                   
                                                                               
  MS. LEVY said, "I don't think use of the document does                       
  either, I would agree with you.  But (b) seems to say that                   
  use of a historical document does not constitute advocation,                 
  and so, it seems to encompass any use."                                      
                                                                               
  [UNIDENTIFIED VOICE] stated, "That's the big loophole."                      
                                                                               
  MS. JAMES stated, "And I understand that, and I would agree                  
  that that is a loophole, and would not necessarily                           
  constitute - if we had that in there.  I don't have - this                   
  substitute doesn't have a page 2, is that correct?  I would                  
  like to respond to Rep. Davidson's concern.  Many times if                   
  you don't have protection of something within the law,                       
  people assume that it is not there, and historically,                        
  historical documents with religious input are not used, for                  
  that reason, because they are not sure they can, because it                  
  doesn't say they can or can't."                                              
                                                                               
  Number 658                                                                   
                                                                               
  REP. DAVIDSON said, "Here we have an expert on the law... my                 
  feeling is that we are constantly being charged with putting                 
  on the books unnecessary laws, and so, I just didn't want                    
  this to be an example of that."                                              
                                                                               
  Number 662                                                                   
                                                                               
  MS. LEVY stated, "Unless there are some other issues that                    
  were meant to be addressed by this bill that I'm not aware                   
  of, the amendment that was suggested to 14.03.090, while one                 
  could argue it's not necessary, it certainly would remove                    
  the question as to whether or not that use is permitted; it                  
  would resolve that."                                                         
                                                                               
  Number 673                                                                   
                                                                               
  VERNON MARSHALL, Executive Director, National Education                      
  Association - Alaska (NEA-AK), testified in opposition to HB
  339.  Mr. Marshall had not received a copy of the CS until a                 
  few moments before speaking.  He offered the following                       
  comments:                                                                    
                                                                               
  "We have spent some time, both in the HESS Committee and                     
  since that meeting, analyzing HB 339.  Some of the points                    
  that we're concerned about were raised by the Department of                  
  Law.  Our first question is, is the bill really needed?  Has                 
  anyone said that the Constitution of the United States, the                  
  Constitution of the State of Alaska, or the Pledge of                        
  Allegiance cannot be used in school?  HB 339 would not                       
  require the use of any historical document, but would be                     
  permissive; therefore, is the bill really necessary?  We                     
  raised that question.                                                        
                                                                               
  "Second, HB 339 states that any historical document may be                   
  used in whole or in part, but may not be altered to remove                   
  religious or secular references when such references are                     
  part of the document's text.  The bill addresses references                  
  only when they are part of the text of a historical                          
  document.  Presumably, every part of a document is either                    
  religious or it is secular, one or the other.  HB 339 would                  
  appear to prohibit the use of a document if the                              
  administrator or the instructor alters or allows alteration                  
  of the document to remove religious or secular references.                   
                                                                               
  "Another point that we noted is as a practical matter that                   
  the effect on text book use and purchases could be                           
  devastating.  A teacher could not assign part of the                         
  Emancipation Proclamation or the Gettysburg Address or the                   
  Declaration of Independence for discussion or memorization.                  
  A court decision such as the Dread Scott decision or Brown                   
  v. The Board of Education could not be studied at any level                  
  unless the entire decision, without abridgement, were used                   
  in the curriculum.  Even in law school, case books, abridged                 
  court decisions for pedagogical purposes, are allowed to be                  
  taught.  Surely abridgements are pedagogically appropriate                   
  at the elementary and secondary school levels.                               
                                                                               
  "Fourth, assuming such restrictions on educators and                         
  programs were desirable, there is also another matter that                   
  is very practical and very real.  We're not like California                  
  or Texas or New York.  We're a relatively small market as                    
  far as text books are concerned, and if we demanded that                     
  text book publishers revise their products to include the                    
  unabridged text of historical documents, again, this could                   
  be very restrictive on Alaska's public schools.                              
                                                                               
  "Fifth, the goal is probably to encourage the use of                         
  historical documents including religious references.  But HB
  339, if enacted, could be counterproductive.  By restricting                 
  educators and by requiring that any historical documents                     
  that are used be used in their unaltered or unabridged                       
  state, HB 339 would discourage, not encourage, the use of                    
  documents in curricula.  I think the department [of                          
  Education] made reference to that.                                           
                                                                               
  "A sixth point:  Have educators deleted these references                     
  from curricula?  We have no information to indicate that any                 
  religious or secular material has been deleted from                          
  curricula.  Has anyone seriously proposed - I know, in the                   
  Pledge of Allegiance, I believe that's guaranteed under the                  
  U.S. Code,  I don't know of anyone that has even proposed                    
  amending the U.S. Code, to remove `God' from the Pledge of                   
  Allegiance.                                                                  
                                                                               
  "A seventh point is the statement that a public teacher who                  
  uses a historical document may not be disciplined or                         
  otherwise acted against for using the document.  If enacted                  
  into law, this could lead to an unintended result.  Suppose                  
  a teacher were to use the Declaration of Independence in an                  
  algebra class for no proper purpose in that particular math                  
  setting.  Does HB 339 mean that an algebra teacher could                     
  ignore the duty to teach that subject and avoid discipline                   
  so long as she or he talks about historical documents?                       
                                                                               
  "Eighth, in every state or federal court decision, and all                   
  other documents published by a state or the federal                          
  government, are these particular documents worthy of                         
  treatment as historical documents?  Because on page 2, on                    
  line 14, we include as historical documents state or federal                 
  enactments; on line 16 we include state or federal court                     
  decisions; and on line 17 we include documents published by                  
  the state and federal government.  There are thousands, or                   
  possibly millions of documents which... if [the legislature]                 
  enacts HB 339, would be elevated to a very sanctified level                  
  authorizing the use of the materials by teachers and                         
  administrators with impunity - even if they were not                         
  suitable for the grade level and subject matter - as long as                 
  they were used without alteration or abridgement.  Again, I                  
  can only refer to a lot of court cases that are referred to                  
  on line 16.  Many court cases include grizzly matter that I                  
  do not know that a teacher would necessarily want to teach,                  
  or use that entire document in a classroom, when they could                  
  probably use or most likely use an abridged form of that                     
  decision.                                                                    
                                                                               
  "A ninth point is that we feel that educators ought to                       
  decide relative to the proper use of a historical document;                  
  and again, that the educators should be required to read the                 
  material, develop a lesson plan, and apply that document                     
  relative to that lesson plan and that course of instruction.                 
  Again, if the intent of the bill is to prohibit the                          
  alteration of a document by the omission of any reference,                   
  whether religious or secular, we are probably making an                      
  effort here, I would assume, to be even-handed.  We looked                   
  at some Supreme Court enactments, and the most recent is the                 
  court decisions out of the State of Louisiana, where they                    
  did pass legislation to require even-handed treatment                        
  relative to creation science and evolution.  And, again,                     
  that particular provision was struck down.  In this                          
  particular case, in an effort to be even-handed, we could be                 
  opening our schools up to possible litigation, should a                      
  parent or group of parents attempt to challenge a form of                    
  teaching that would be allowed under this particular bill,                   
  or the use of documents that would be allowed under this                     
  particular bill.                                                             
  "We oppose the legislation.  We would encourage the                          
  committee to also oppose the legislation, and would be glad                  
  to respond to any questions if you have them."                               
                                                                               
  REP. NORDLUND said, "Vernon, I'm just wondering if you had a                 
  chance to look at that CS that's on our desk."                               
                                                                               
  MR. MARSHALL responded, "Well, again, I guess the underlined                 
  sentence is the addition - on the surface, I share the                       
  department's concern.  I think it's much better than what's                  
  included in the House bill.  Again, though, we feel that                     
  there's not a problem, and we have not been made aware of                    
  any problem relative to an administrator and/or teacher who                  
  has been prohibited from using religious references, whether                 
  they be in the constitution of our country, the state of                     
  Alaska, the Pledge of Allegiance, whatever; we just don't                    
  think it's needed.  But, again, we'd be more than happy if                   
  someone can indicate to us where there is a problem, and                     
  we'd be glad to take a look at it."                                          
                                                                               
  Number 805                                                                   
                                                                               
  REP. NORDLUND stated, "As far as you know in classrooms, if,                 
  let's say if you have a high school history class on                         
  religions, is it okay for the teachers to refer to the                       
  Bible, and make reference to the Koran or any other [text]?"                 
                                                                               
  Number 810                                                                   
                                                                               
  MR. MARSHALL replied, "Yes.  In both history and literature,                 
  it's done.  I noticed in the sponsor's materials, in fact,                   
  there's a court decision that has protected that particular                  
  use of religious references - so long as we're not into a                    
  position of actually in a sense advocating a particular                      
  faith, whether it be advocated through the Koran or the                      
  Bible or whatever.  That is pretty much prohibited and                       
  protected by the U.S. Constitution."                                         
                                                                               
  Number 819                                                                   
                                                                               
  REP. PHILLIPS said,  "I would like at some point in time for                 
  the sponsor to share some of his concerns as far as the                      
  necessity for something like this."                                          
                                                                               
  Number 823                                                                   
                                                                               
  REP. KOTT responded, "This was not an idea that came out of                  
  thin air.  During the interim period a couple of teachers                    
  asked me about this, and they were concerned that the                        
  language in the statute, of advocating religious teachings,                  
  basically prevented them from using historical documents in                  
  teaching history that contained religious activities.  I                     
  think there's two letters of support from a school board                     
  member, as well as a former teacher - or maybe he's                          
  currently a teacher - that also suggest that there is                        
  potentially a problem, and that this should be resolved.                     
  Certainly, I think the bill does that.                                       
                                                                               
  "I don't know/believe that we're going to demand text books'                 
  authors to provide the full document if they so deemed not                   
  to provide it.  We are in fact giving teachers and                           
  administrators the option of using part of a document;                       
  either they can use the whole thing or part of it, based on                  
  their own discretion.  We're not telling them, here's a                      
  court case, you have to present the entire court case.  You,                 
  as a teacher, an administrator, based on your discretion,                    
  will select what portions of that is more appropriate.  If                   
  there is language in there that is not appropriate for                       
  teaching seventh graders, I would submit that the teacher                    
  would not use it."                                                           
                                                                               
  Number 851                                                                   
                                                                               
  MIKE FORD, Legislative Legal Counsel, Legislative Affairs                    
  Agency, commented on HB 339.  He said, "I really don't have                  
  anything to add.  I think the concerns of the Department of                  
  Law and the Department of Education - I don't know that I                    
  would quite go as far as they go, thinking that there is a                   
  going to be a tremendous backlash of our teachers exploding                  
  with rampant advocacy of some sectarian or religious belief.                 
  Certainly the department already has broad authority to                      
  control public schools, and they already have curriculum                     
  guidelines.                                                                  
                                                                               
  "As I would look at this, it's simply an effort to achieve a                 
  neutrality level.  If you have a document that qualifies as                  
  an historical document, then you can use that.  I understand                 
  their concerns that some of the provisions may in fact                       
  create a broader exception than you'd like to; you could                     
  tighten that up if that was your concern.  As far as not                     
  being disciplined because they used a document, it's simply                  
  because we already have a provision of law saying you cannot                 
  have partisan, sectarian or denominational doctrine.  That                   
  provision is already in our law, so we have to add a                         
  provision to this bill which deals with that issue, and                      
  that's simply to say that using a historical document                        
  doesn't constitute that.  So, in an effort to get around                     
  that prohibition, we've added that provision to this bill.                   
  I don't think it was intended to allow for some blanket                      
  exemption or for advocacy of some [kind]."                                   
                                                                               
  Number 874                                                                   
                                                                               
  CHAIRMAN PORTER said, "I see, in some of the documents                       
  except the bill, it says `American history documents,' but                   
  in the bill itself, it just says `historical documents,'                     
  which, obviously, is a much broader scope than American                      
  history.  Is there some reason why we can't use `American                    
  history'?"                                                                   
                                                                               
  Number 880                                                                   
                                                                               
  MR. FORD replied, "No, there's been some conversation about                  
  the definition of `historical document.'  I think you should                 
  note that the way the definition is crafted, it simply says                  
  it includes these documents.  And, of course, under our law,                 
  that means includes but not limited to, so it certainly                      
  would include American historical documents; maybe a lot of                  
  other things that are not in here.  So I don't think the                     
  definition is intended to limit us.  It is intended to just                  
  list things that are definitely included..."                                 
                                                                               
  TAPE 94-34, SIDE A                                                           
  Number 000                                                                   
                                                                               
  [Brief discussion continued from previous tape; text missing                 
  due to tape ending.]                                                         
                                                                               
  MR. FORD continued, "I think probably a better approach is,                  
  if you were concerned about, if you wanted to limit it to                    
  American documents, you could do that.  If you were                          
  concerned about it being included, I would simply suggest                    
  you add that to the list and make sure that those are                        
  included.  I can't really tell you if the Mayflower Compact                  
  is considered an American document or not.  I'm trying to                    
  remember my high school history."                                            
                                                                               
  CHAIRMAN PORTER stated, "That wasn't my reason for asking                    
  the question.  I just noted that many of the documents                       
  supporting the bill say `American history' but it doesn't                    
  say that in the bill, so..."                                                 
                                                                               
  CHAIRMAN PORTER asked if there were further questions,                       
  asking, "What is the wish of the committee?"                                 
                                                                               
  REP. NORDLUND said, "Mr. Chairman, are we entertaining the                   
  CS or the original version?"                                                 
                                                                               
  CHAIRMAN PORTER replied, "We are, at this point, considering                 
  the original version of the bill."                                           
                                                                               
  Number 030                                                                   
                                                                               
  REP. KOTT responded to a request for a clarification of his                  
  feelings regarding the two versions.  He said,                               
  "Realistically, I think the bill is a little tighter as it                   
  addresses the [inaud. due to paper shuffling].  I don't want                 
  to give teachers or administrators the blanket authority to                  
  use any kind of document.  We could perhaps say the King                     
  James version could be used as an historical document, but I                 
  don't think that's the intent.  That's the reason for at                     
  least identifying some of these documents that we're talking                 
  about.  We're not talking about Bibles or anything of that                   
  nature, and I prefer that we support the original bill, or                   
  make some inclusion into the committee substitute."                          
                                                                               
  CHAIRMAN PORTER said, "So that we can, would you move the                    
  bill, then, and we'll..."                                                    
                                                                               
  Number 069                                                                   
                                                                               
  REP. KOTT moved HB 339.                                                      
                                                                               
  Number 070                                                                   
                                                                               
  CHAIRMAN PORTER stated, "We have a motion to move HB 339.                    
  Under discussion, I would have to say that I would oppose                    
  the passage or movement of HB 339 as it is now.  I addressed                 
  my concerns with the two specific things that were                           
  referenced by the Department of Education and the Department                 
  of Law in (b) and in (c); (d), while I recognize that some                   
  people believe saying `historical documents include' and                     
  then listing those, leaves it open for others, but several                   
  other references I've seen used say `includes but is not                     
  limited to.'  I don't know if that's important or not, but                   
  it asks the question, and I hate passing things that ask                     
  more questions than they answer.                                             
                                                                               
  "If I have - and this is why this sequence was developed -                   
  if I am in any way correct in what it is that this bill was                  
  trying to get at, this one line on the CS seems to cover it.                 
  I guess I'm just saying for discussion that I would not                      
  support this, but I probably would support the CS."                          
                                                                               
  Number 102                                                                   
                                                                               
  REP. JAMES remarked that she felt that the CS accomplished                   
  the sponsor's purpose, but expressed support for the                         
  original version of the bill, as well, asking for some time                  
  to address the concerns that had been raised that day in the                 
  hearing.  Rep. James, noting that she had been in the Alaska                 
  longer than most of those present, presented counterpoint                    
  from her experiences to challenge testimony that had                         
  suggested the legislation was unnecessary.                                   
                                                                               
  REP. JAMES said, "I've seen a trend, and talked to various                   
  people over the years, that [people] are so fearful of using                 
  anything that has any religious content in it at all that                    
  what we have actually done in our schools is created a                       
  nonreligion which is another religion.  I believe that we                    
  need to balance the issue here... and I think that this will                 
  do that, and give some teachers some comfort in being able                   
  to do some of the things that they have up until now been                    
  believing that they could not, and/or were told by their                     
  school boards or school districts or administrators that                     
  they could not.  We need to at least go that far.                            
                                                                               
  "Some of these other things that we heard in the testimony                   
  here today... I think could be tightened up and fixed to                     
  address their concerns, and also make me feel more                           
  comfortable with having a little more substantive."                          
                                                                               
  Number 146                                                                   
                                                                               
  REP. NORDLUND stated, "I am going to oppose the original                     
  version of the bill here in the committee, and if it ever                    
  makes it to the floor, primarily because of the arguments                    
  from the Department of Education, as well as from the NEA,                   
  which leaves us with the CS; if we decide to adopt that one,                 
  then I think we're in a situation in which I don't think the                 
  CS really accomplishes anything.  Now, if there are fears                    
  that some day, maybe there might be these restrictions about                 
  using historical documents with religious references in                      
  them, then I could change my mind.  I guess I am saying I'm                  
  open-minded to the second version.  I'll be voting with the                  
  Chairman on the original bill, but probably would at least                   
  vote to pass out the other version of the bill."                             
                                                                               
  Number 172                                                                   
                                                                               
  REP. PHILLIPS said, "I have a little problem, in the                         
  original bill, with limiting the documentation to `American                  
  history' because, as you teach world history, as you teach                   
  literature, as you teach any number of subjects - languages,                 
  etc. - you are going far beyond American history.  I just                    
  have a problem with that limited scope in the original                       
  bill."                                                                       
                                                                               
  Number 181                                                                   
                                                                               
  REP. KOTT stated, "Mr. Chairman, I am going to withdraw my                   
  motion to move and make a motion to adopt the committee                      
  substitute."                                                                 
                                                                               
  CHAIRMAN PORTER said, "We have a motion to adopt the                         
  committee substitute.  Is there further discussion?  Is                      
  there objection to the adoption of the committee substitute                  
  dated 3/7/94, 393/J?  No objection?  We have before us CS                    
  for HB 339 Judiciary.  Further discussion?  Is there a                       
  motion to adopt the...?"                                                     
                                                                               
                                                                               
  REP. JAMES stated, "Motion to move out with individual                       
  recommendations."                                                            
                                                                               
  CHAIRMAN PORTER asked, "Is there a fiscal note?  Is there                    
  further discussion of the motion to move?  I am seeing none.                 
  Is there objection?  Bill is passed."                                        
  HB 439 - UNIFORM FRAUDULENT TRANSFER ACT                                     
                                                                               
  Number 226                                                                   
                                                                               
  CHAIRMAN PORTER asked if MARY ELLEN BEARDSLEY and JERRY                      
  KURTZ were on line via teleconference.  Ms. Beardsley                        
  confirmed that she was present on line.  Chairman Porter                     
  said, "Well, we have Mary Ellen at least.  I would like                      
  to now, if we could, quickly, take up the Fraudulent                         
  Transfers Act, HB 439.  We have, at least first, Mary Ellen                  
  Beardsley from the Department of Law to tell us about the                    
  act and maybe we have Jerry Kurtz and maybe we don't.  Mary                  
  Ellen, welcome and please tell us about the bill."                           
                                                                               
  Number 230                                                                   
                                                                               
  MARY ELLEN BEARDSLEY, Department of Law, spoke via                           
  teleconference from Anchorage.  She said, "I would like to                   
  defer to Mr. Kurtz, who is here.  Let him do his                             
  presentation first, and then I will speak after him."                        
                                                                               
  Number 231                                                                   
                                                                               
  JERRY KURTZ, Uniform Law Commission, testified via                           
  teleconference from Anchorage.  [Testimony is difficult to                   
  hear due to chronic foreground noise.]  He said, "Because I                  
  don't know many of the people on the committee, I will very                  
  briefly give you some [indisc.] background and try and keep                  
  my remarks [indisc.] fairly limited.  I hope that when I do                  
  so you will ask any questions that you have [indisc.]....                    
                                                                               
  "I am also [indisc.].  I have practiced law in Alaska for                    
  about 30 years, or more, and in the last 25 years I have                     
  primarily worked in commercial and business problems.  I am                  
  here representing the Uniform Law Commission of the United                   
  States, and I am a representative on that commission                         
  appointed by the Governor of Alaska, and have been since                     
  1989.  Prior to that time I was with the Alaska [indisc.]                    
  Commission for about eight years, and in both of these                       
  positions I have worked primarily with efforts to improve                    
  laws rather than to push them in favor of one direction of                   
  another.                                                                     
                                                                               
  "I am strongly in favor of HB 439 because I think it would                   
  be a substantial improvement in Alaska law.  At this point                   
  it's worth briefly explaining what we're talking about.                      
  Fraudulent conveyances are not necessarily criminally                        
  fraudulent conveyances.  In fact, it is a term of ours that                  
  usually does not involve criminal actions.  But the                          
  fraudulent conveyance is a transfer of money, a substantial                  
  proportion of [indisc.] property, or an item of [indisc.]                    
  property, that is deliberately made to deprive [indisc.]                     
  creditors of the property.  Or it's made under circumstances                 
  where most people would think it was only fair to let                        
  creditors have the property.                                                 
                                                                               
  "Typical fraudulent conveyance occurs when someone has                       
  borrowed a great deal of money or promised to do something                   
  under a contract, and realizes that they aren't going to                     
  make it [indisc.].  People who relied upon that person's                     
  [indisc. -financial?] statement or their [indisc.] as                        
  property owners, when they entered the agreement, or loaned                  
  the money, suddenly find that there is no property there.                    
  Now, Alaska's law in this area is very, very old, indeed.                    
  It goes back to the Statute of Elizabeth, which was a                        
  statute in England and..."                                                   
                                                                               
  CHAIRMAN PORTER interjected, "Jay, we're about 15 minutes                    
  past the end of the committee time, and I've got a couple of                 
  people who can stay for about five minutes, but otherwise,                   
  they've got to scoot.  Could we get the executive summary?"                  
                                                                               
  MR. KURTZ said, "The executive summary is that it is                         
  strongly in the interest of this state, [indisc.] most of                    
  us, to try to promote a fair commercial climate, a business                  
  climate and a more constructive legal climate.  This bill                    
  will help do that.  It's substantially the law now of every                  
  state west of the Mississippi except Louisiana, Iowa,                        
  Kansas, Wyoming and Alaska.  In other words, we're not only                  
  not in coordination with those states, we are grossly behind                 
  them.  26 states adopted the old Uniform Act which went into                 
  effect in 1918.  32 states [indisc.] have adopted this new                   
  version, which was first [indisc.] in 1984.  Alaska is still                 
  operating under the law of Elizabeth.  It will, I think,                     
  help everybody except the deadbeat who is really trying to                   
  hide stuff, to not only know what the law is, but to enforce                 
  agreements that are [indisc.] agreements."                                   
                                                                               
  CHAIRMAN PORTER stated, "Jerry, thank you very much.  What                   
  is the wish of the committee?"                                               
                                                                               
  Number 322                                                                   
                                                                               
  REP. PHILLIPS commented, "Mr. Chairman, anything that moves                  
  us out of the Elizabethan age... I'd move that we move the                   
  bill out of committee with individual recommendations."                      
                                                                               
  CHAIRMAN PORTER said, "We have a motion to move.  Is there                   
  discussion?"                                                                 
                                                                               
  REP. JAMES stated, "Let's move this bill out of here, it's a                 
  good bill."                                                                  
                                                                               
  CHAIRMAN PORTER asked, "Is there objection?"  There being no                 
  objection, HB 439 was moved out of committee.                                
  ADJOURNMENT                                                                  
                                                                               
  [No time of adjournment was noted.]                                          

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