Legislature(1993 - 1994)
03/07/1994 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
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historical documents without alteration or removal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providing that the use of historical documents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acted against for using historical documents;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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