Legislature(1993 - 1994)

02/09/1994 01:34 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                        February 9, 1994                                       
                           1:35 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator George Jacko                                                          
 Senator Dave Donley                                                           
 Senator Suzanne Little                                                        
  MEMBERS ABSENT                                                               
 Senator Rick Halford, Vice-Chairman                                           
  OTHERS PRESENT                                                               
 Senator Loren Leman                                                           
  COMMITTEE CALENDAR                                                           
 HOUSE BILL NO. 73                                                             
 "An Act relating to state and local taxation and other state                  
 regulation as affected by the Alaska Native Claims Settlement Act,            
 as amended, and related federal statutes; and providing for an                
 effective date."                                                              
 SENATE BILL NO. 234                                                           
 "An Act relating to mandatory 99-year sentences, parole and                   
 furlough eligibility, service of sentence at correctional                     
 restitution centers, and good time credit for defendants with at              
 least three felony convictions when the current conviction and at             
 least one of the prior convictions is for a most serious felony."             
  PREVIOUS SENATE COMMITTEE ACTION                                             
 HB 73 -  See Community & Regional Affairs minutes dated                       
          3/9/93.  See Judiciary minutes dated 4/28/93.                        
 SB 234 - NO PREVIOUS ACTION.                                                  
  WITNESS REGISTER                                                             
 David Harding, Aide                                                           
 Representative Eileen MacLean                                                 
 State Capitol                                                                 
 Juneau, AK 99801-1182                                                         
   POSITION STATEMENT: Presented HB 73.                                        
 Portia Babcock, Aide                                                          
 Senator Loren Leman                                                           
 State Capitol                                                                 
 Juneau, AK 99801-1182                                                         
   POSITION STATEMENT: Reviewed SB 234.                                        
 Jerry Luckhaupt, Attorney                                                     
 Legislative Legal Counsel                                                     
 Goldstein Bldg.  #402                                                         
 Juneau, Alaska 99801                                                          
   POSITION STATEMENT: Drafted SB 234.                                         
 Edward E. McNally, Deputy Atty. General                                       
 Department of Law                                                             
 1031 W. 4th, Suite 520                                                        
 Anchorage, Alaska 99501-1975                                                  
   POSITION STATEMENT: Supports SB 234.                                        
 Diane Schenker, Special Assistant                                             
 Department of Corrections                                                     
 2200 E. 42nd Avenue                                                           
 Anchorage, Alaska 99508-5202                                                  
   POSITION STATEMENT: Testified on SB 234.                                    
  ACTION NARRATIVE                                                             
 TAPE 94-9, SIDE A                                                             
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:35 p.m.                                                            
 STATE TAX EXEMPTIONS) (ANCSA) to committee and asked DAVID HARDING            
 to review the bill.                                                           
 MR. HARDING explained HB 73 was introduced to bring state law into            
 compliance with federal law regarding the exemption from taxation             
 of property conveyed under the Alaska Native Claims Settlement Act.           
 He also explained several years ago federal law was changed to                
 continue a property tax exemption from federal, state, or local               
 taxation on ANCSA land until development occurs.                              
 MR. HARDING said, in the drafting process, the attorney noted other           
 sections of state law which needed to be updated to conform to the            
 amended federal law.  He described the changes as technical or                
 stylistic changes, and he explained the bill does not expand or               
 reduce any benefits or protection already mandated by federal law,            
 but simply cleans up the state law to assure that obsolete state              
 statutes do not lead to misinterpretation by those working with               
 Alaska tax laws.                                                              
 MR. HARDING said HB 73 has a zero fiscal note from the Department             
 of Revenue; it passed the House unanimously, and he reviewed the              
 prior history of the bill.                                                    
 Number 061                                                                    
 SENATOR TAYLOR was reminded of a foreclosure case on taxes being              
 assessed in Fairbanks on some property acquired by the native                 
 corporation there.  He said the corporation had protested the                 
 foreclosure on the property, saying the lands they had acquired had           
 come to them as an investment of proceeds of ANCSA, and were                  
 therefore exempt.  He wondered if such a case would be resolved by            
 HB 73.                                                                        
 MR. HARDING said the first question would be whether it was                   
 developed land, and SENATOR TAYLOR said it was developed commercial           
 property in Fairbanks.  MR. HARDING said it shouldn't be affected             
 by HB 73, since the legislation only covers undeveloped land, and             
 he referred to the definition in the bill that mirrors the federal            
 MR. HARDING explained it was possible for land to move into                   
 development status, become taxable, and later to move back to                 
 undeveloped status.  He gave several examples of how this would               
 SENATOR TAYLOR asked why there was a need for the legislation, and            
 MR. HARDING said there was concern that those who use the Alaska              
 tax laws might be making assumptions about Native land that would             
 not be correct.                                                               
 SENATOR TAYLOR asked if there were any on-going cases that would be           
 impacted by this legislation, and MR. HARDING said REPRESENTATIVE             
 MACLEAN has not heard of any cases during the three years he has              
 worked on the legislation.                                                    
 Number 108                                                                    
 SENATOR JACKO referred to page 3, lines 24 and 5 to ask about the             
 definition of Native, and MR. HARDING said it was the federal                 
 language in the United States Code.  SENATOR JACKO asked whether he           
 had the definition as specified in the statutes in the legislation.           
 SENATOR TAYLOR thought those two provisions had to do with the                
 transfer of shares upon death, and if the recipient was of a                  
 certain blood, then they would receive the share as well as the               
 right to vote the share.  He described another scenario in which              
 the person inheriting the share would not have the right to vote              
 the share.                                                                    
 SENATOR JACKO thought SENATOR TAYLOR was correct, but he wanted the           
 exact definition of the statute.  MR. HARDING could not find the              
 definitions in the United States Code.  SENATOR JACKO said he would           
 get the answer later.                                                         
 Number 154                                                                    
 SENATOR DONLEY questioned the technical changes, and MR. HARDING              
 said the bill was only technical changes to conform to the federal     l    
 law and state law.                                                            
 SETTLEMENT ACT STATE TAX EXEMPTIONS) from committee with individual           
 recommendations.  Without objections, so ordered.                             
 SENATOR TAYLOR introduced SB 234 (LIFE SENTENCE:SOME 3RD FELONY               
 OFFENDERS) to committee and invited PORTIA BABCOCK to review the              
 bill, sponsored by SENATOR LOREN LEMAN.                                       
 MS. BABCOCK said SB 234 was commonly known as "three strikes and              
 you're out."  She noted that DEPUTY ATTY. GENERAL EDWARD MCNALLY              
 from the Department of Law and JERRY LUCKHAUPT, the drafting                  
 attorney from Legislative Legal Counsel, would also be testifying             
 on SB 234.                                                                    
 MS. BABCOCK explained the court will be required to sentence a                
 defendant convicted of a most serious felony to a mandatory 99 year           
 prison term without the opportunity for parole, when the defendant            
 has been previously convicted of at least two other "most serious"            
 felonies.  According to recent U.S. studies, MS. BABCOCK cited                
 statistics showing recidivism as being extremely high for third               
 timers, with a projection of a 76% chance of additional criminal              
 behavior for habitual offenders.  She stated statistics today in              
 the United States show convicted felons serve an average of 25% of            
 their sentences; 60% of prison inmates have been behind bars                  
 before, and 44% were on probation or parole when rearrested.                  
 MS. BABCOCK continued her statistics by estimating that 6% of                 
 criminals in the United States have committed nearly 70% of the               
 violent crimes, and she claimed SB 234 would target most habitual             
 offenders, a small but deadly group of individuals.  By using                 
 statistics from Washington State, MS. BABCOCK estimated the fiscal            
 impact will be a .01% increase in the Department of Correction's              
 MS. BABCOCK said she was still collecting information from other              
 states on their habitual offender laws to work out what is                    
 comparable to SB 234, and she explained California presently has an           
 initiative in the process.  She also explained SENATOR LEMAN had              
 introduced the bill because he thought it was important a small               
 percentage of repeat offenders, and those with high recidivism                
 rates, should be put away.                                                    
 Number 219                                                                    
 SENATOR JACKO asked how much it would change the way the State                
 treats these offenders and whether the courts presently take into             
 consideration recidivism.                                                     
 MS. BABCOCK said she would refer his question to MR. MCNALLY, but             
 she thought priors would go into effect.                                      
 SENATOR JACKO asked if the courts were prevented from doing this              
 now, and MS. BABCOCK said it would be mandatory.                              
 SENATOR DONLEY asked if the bill would prohibit any good time                 
 deduction, and MS. BABCOCK said that it would.  SENATOR DONLEY                
 wanted to see the section of the bill prohibiting good time                   
 deductions, and MS. BABCOCK referred him to page 5, Section 9,                
 lines 10 through 11.                                                          
 SENATOR TAYLOR declared it was a death sentence.  MS. BABCOCK                 
 agreed, and said the only option would be clemency by the governor.           
 SENATOR DONLEY said he was trying to understand how it would                  
 dovetail with previous legislation dealing with mandatory                     
 sentencing, with no good time deduction.  SENATOR TAYLOR suggested            
 MR. MCNALLY or MR. CHENOWETH would be able to explain how it would            
 MS. BABCOCK asked MR. LUCKHAUPT, who drafted the bill, to come                
 forth to answer SENATOR DONLEY'S questions.                                   
 Number 260                                                                    
 SENATOR DONLEY referred to Section 9 in SB 234, which removed the             
 applicability of good time, but above Section 9, he found a listing           
 of two other statutes and wondered why the legislation was drafted            
 this way.                                                                     
 SENATOR LITTLE referred to the combined fiscal notes for the                  
 Department of Corrections and the Department of Law as being over             
 a $100 million.  MS. BABCOCK said she had been working with the               
 Department of Corrections since SENATOR LEMAN disagrees with the              
 amount of the fiscal notes.  She explained the persons who would be           
 incarcerated have all ready spent lengthy periods in prison, and              
 she thought being put away for life was less expensive than the               
 cost of numerous incarcerations by one person.                                
 MS. BABCOCK said the State of Washington has a much smaller                   
 forecast of their costs, and she was trying to workout their                  
 disagreement with Corrections.  SENATOR LITTLE reviewed some                  
 statistics from the report from the Department of Corrections on              
 the number of serious felonies, which would amount to about 200               
 offenders currently in prison.  She thought that would be a                   
 substantial cost.                                                             
 MS. BABCOCK said most of that cost would be further down the road,            
 because most of these offenders are all ready in the system.  She             
 predicted the percentage of increase would be a small impact on the           
 Number 312                                                                    
 SENATOR TAYLOR explained DIANE SCHENKER from the Department of                
 Corrections could address the fiscal notes much more accurately. A            
 general discussion centered around page 7 of the fiscal note which            
 showed total additional expenses of $100,438,205.  The explanation            
 suggested the expenses would be $2,183,439 for additional operating           
 and capital expenditures per year, every year from FY95 through               
 SENATOR DONLEY reviewed the process by which a offender receives a            
 mandated sentence of 99 years using the list of felonies and                  
 convictions given in the bill, and he questioned how these offenses           
 would be triggered.  MS. BABCOCK explained the defendant must have            
 two of the three most serious felonies, with the third one a most             
 serious felony, which leaves one of the three felonies a lesser               
 type of felony.                                                               
 SENATOR TAYLOR thanked MS. BABCOCK and called on the bill drafter,            
 JERRY LUCKHAUPT to answer questions from SENATOR DONLEY.                      
 SENATOR DONLEY referred to a previous meeting on first degree                 
 murder issues in which members were told of provisions to prevent             
 good time from applying to certain mandatory sentences for first              
 degree murder, to ask if he understood correctly.  MR. LUCKHAUPT              
 said it was his recollection that good time earned on the mandatory           
 99 year sentences is currently available, but wouldn't have much              
 impact on the time to serve.                                                  
 SENATOR DONLEY asked about the good time application for the                  
 minimum 20 year sentences, and MR. LUCKHAUPT said it was available            
 to the extent the judge decides not to make it available.  He                 
 explained the judge could limit the parole eligibility.                       
 SENATOR DONLEY repeated his question as to whether the good time              
 provision was applicable to the 20 year sentences, and MR.                    
 LUCKHAUPT thought it was currently available to all sentences                 
 basically in statute now.                                                     
 MR. LUCKHAUPT again explained the judge could limit the parole                
 eligibility but not the good time provision.                                  
 SENATOR DONLEY thanked MR. LUCKHAUPT for the confirmation of his              
 understanding about the good time provision, and referred to                  
 Section 8 in SB 234, where a separate sentence makes a specific               
 sentencing scheme not eligible to good time.                                  
 Number 360                                                                    
 MR. LUCKHAUPT explained there was a similar discussion in the House           
 when the bill was considered, and he said for a first murder the              
 sentence could be as low as 20 years, but they would be eligible              
 for the good time provision.  He further explained prisoners would            
 be eligible for parole after serving two thirds of their sentence.            
 SENATOR DONLEY was puzzled at the contradiction with previous                 
 testimony on the 20 year sentence.  SENATOR TAYLOR reminded SENATOR           
 DONLEY the judge could still limit the likelihood of discretionary            
 parole, but he questioned the mandatory parole at the end of                  
 fourteen years with the good time credit.                                     
 MR. LUCKHAUPT said it was confusing because the mandatory parole              
 works off the good time credit of one third of a twenty year                  
 sentence, and a person must be paroled, while the discretionary               
 parole that kicks in after one half of the sentence has been                  
 served.  At that point the offender can be released from prison.              
 MR. LUCKHAUPT explained the mandatory 99 year sentence for murder             
 were enacted two years ago, and provides a restriction on the                 
 eligibility for discretionary parole.  He said this was the only              
 distinction in the sentencing scheme at present, but the judge                
 always has the option of limiting parole.  He explained SB 234                
 would remove the eligibility of the habitual criminals for the good           
 behavior statutes.                                                            
 SENATOR TAYLOR quoted the legislation as using two serious felonies           
 and one "generic" felony for the 99 year sentence to be used, and             
 at least the last one would have to be a "most serious" class of              
 felony.  MR. LUCKHAUPT said his description was correct.                      
 Number 400                                                                    
 MR. LUCKHAUPT said he drafted the bill that way, but he described             
 the manner in which the State of Washington drafting theirs where             
 all three of the felonies had to be serious, most violent felonies.           
 He reviewed a United States Supreme Court decision from a habitual            
 criminal law from the State of Oklahoma which was struck down,                
 saying that sentence was not in relation to his current felony.               
 All of his seven felonies were non-violent offenses, and the court            
 said these offenses should not warrant a life sentence.  The felon            
 in question was not dangerous.  For that reason, MR. LUCKHAUPT                
 drafted SB 234 with this decision in mind, and he said all others             
 drafted in this manner had withstood constitutional challenge.                
 SENATOR TAYLOR asked for the number of states with habitual                   
 criminal statutes.                                                            
 MR. LUCKHAUPT explained he had not researched the number of states            
 that have this statute, but he referred to his days as a prosecutor           
 and being aware it was a fairly common provision in most states.              
 He said Alaska had a habitual criminal law until the new sentencing           
 code was adopted in 1978, and changed to presumptive sentencing               
 which could increase the sentence for each offense.                           
 MR. LUCKHAUPT said presumptive sentencing did not operate the same            
 as the habitual criminal law, and he reviewed what other states               
 have done in this respect.  He said the approach in SENATOR LEMAN'S           
 bill was the most common approach used at present.  SENATOR TAYLOR            
 confirmed most states were providing a sentencing option.                     
 MR. LUCKHAUPT explained the 99 year sentence was not a new concept,           
 and he said it was the buzz word in Washington D. C., but it is a             
 concept Alaska has not had for 10 or 15 years.                                
 SENATOR JACKO questioned a reference in statute relating to the use           
 of the words, knowingly directed, on the first line of page two of            
 the bill, and asked if a person under the influence of drugs and              
 alcohol could knowingly direct action.                                        
 Number 453                                                                    
 MR. LUCKHAUPT explained being under the influence of drugs and                
 alcohol usually reduces "intentional" down to a lesser state, but             
 he suggested SENATOR JACKO ask MR. MCNALLY about the difference.              
 He thought the state should still be able to obtain a conviction,             
 even under the influence of drugs and alcohol, but it would reduce            
 the crime from specific intent to a general intent crime.  He                 
 explained "knowingly" fit into both sequences since it contains               
 elements of both intentional and general.                                     
 SENATOR TAYLOR asked how he had chosen the 99 year figure, and MR.            
 LUCKHAUPT explained the sponsor was looking for a life in prison              
 law, but in Alaska there is no life in prison law.  The term of 99            
 years was decided by the legislature a number of years ago, and MR.           
 LUCKHAUPT said it was used to fit in the current drafting style.              
 SENATOR DONLEY referred to page 5, lines 10 through 11, to suggest            
 inserting the statute with the three categories of mandatory 99               
 years without parole section for the three types of homicide                  
 without good time deductions, and he explained his reasons.                   
 SENATOR LEMAN thought SENATOR DONLEY'S suggestion made sense, and             
 the concept of "no good time" was explained to SENATOR LITTLE.                
 SENATOR DONLEY thought it should be used for the ultra serious                
 MR. MCNALLY said he was appearing in his new role as Deputy                   
 Attorney General, and he said the Administration supports a three             
 strikes concept of life in prison, without parole eligibility, for            
 people who have been convicted of three serious, violent felonies.            
 He explained the Criminal Division in the Department of Law was               
 concerned about the kind of drafting it would take to achieve the             
 results the sponsor and supporters seek.  He offered to answer                
 questions about the legislation.                                              
 Number 509                                                                    
 SENATOR TAYLOR questioned when notification occurs, and he gave an            
 example of a person brought before the judge on the third felony.             
 He explained it was the judge's obligation to advise the person at            
 arraignment of the possible ramifications a conviction or a plea of           
 guilty on this charge would have.  He asked if, on every serious              
 felony, would the judge have to advise at the beginning.                      
 MR. MCNALLY gave some background information from the State of                
 Washington which makes it discretionary, and PRESIDENT CLINTON'S              
 federal bill which is silent on the question, as is SENATOR LEMAN'S           
 bill, SB 234.  He said REPRESENTATIVE BUNDE'S bill attempts to                
 address the question requiring the court to advise the defendant,             
 but he said the real question would be what is the consequences if            
 the court does not advise the defendant.  SENATOR TAYLOR said this            
 was his fear.                                                                 
 MR. MCNALLY said there was the question of how we go back in time             
 to someone who was convicted six years ago, or 20 years ago, and              
 are we opening a Pandora's Box, to create a statutory scheme where            
 no one would be eligible for the sentence until 20 or 30 years from           
 MR. MCNALLY explained the judges in Alaska already have a very                
 lengthy set of warnings and advice that is provided whenever anyone           
 comes before them.  As a procedural matter, he said it would be               
 simple to add a warning like this, but if it was incorporated in              
 the statute, it would mean the three strikes clock begins running             
 at the time of enactment rather than covering someone who is                  
 already a two time loser, and who is today behind bars in Alaska.             
 He continues the scenario by explaining this person will complete             
 his sentence seven years from now, and be released to commit a                
 third violent felony.                                                         
 MR. MCNALLY said these were questions not fully resolved by the               
 Criminal Division of the Department of Law.                                   
 SENATOR TAYLOR said he didn't want to go through the exercise of              
 drafting a law and returning home to find the first prosecution was           
 going to the supreme court.  He said he would prefer discussion and           
 research at this time rather than after the fact.                             
 MR. MCNALLY explained the formation of an internal district                   
 attorney's task force consisting of some of the most senior                   
 veterans of the criminal division, who have been prosecuting at               
 least 20 years apiece in Alaska, only on the "three strikes" bill.            
 He said they were concerned at the possible pitfalls and a supreme            
 court ruling three years from now, putting the problem back at the            
 starting gate.                                                                
 SENATOR TAYLOR said he didn't want an immediate effective date                
 following the legislation, which then starts the clock running at             
 that time and would preclude having the sentencing option available           
 for those most serious offenders getting out of jail over the next            
 period of time.                                                               
 MR. MCNALLY said he had a sense there would be a way to avoid                 
 starting the clock now, but he wasn't sure of a way to accomplish             
 it yet.  He assumed the sponsor wanted the legislation to go back             
 in time as well as forward in time.                                           
 MR. LEMAN remarked that was his intent and said he would look                 
 forward to working with the task force.  He hoped they would be               
 able to craft the legislation to make it apply both ways.                     
 Number 556                                                                    
 SENATOR TAYLOR asked MR. MCNALLY for his additional questions on              
 the legislation.                                                              
 MR. MCNALLY said the principal constitutional concern expressed by            
 the Department of Law is the phrase, "manifest injustice."  He                
 reviewed a case in Texas to point out the need to draft a law that            
 does not produce a manifestly unjust result.  He referred to the              
 presumptive sentencing scheme as passing constitutional muster in             
 Alaska because manifest injustices are addressed by the three judge           
 panel - the safety valve.  He said the principal concern of the               
 department was the need for a safety valve, and what it might be.             
 MR. MCNALLY proposed three safety valves for the committee to                 
 consider.  The first would be to provide prosecutorial discretion,            
 to permit the district attorney's office, under the Executive                 
 Branch and Alaska's unified Department of Law, to have the option             
 of seeking, or not seeking, the mandatory 99 years.  He explained             
 it would be similar to the aggravating factors in sentencing, and             
 he explained the judge does not find aggravators where the State              
 has not filed them.  In which case, the 99 life in prison without             
 parole would not be on the table unless the State filed it.                   
 MR. MCNALLY explained a second safety valve is the three judge                
 panel option, because the bill is mandatory and not presumptive in            
 nature, the three judge panel would not apply unless the bill                 
 specifically stated it would.  He further explained the problem in            
 legislating an escape valve such as the three judge panel, is that            
 it may effectively negate the intent of the legislature and of the            
 people in support of this legislation.  He said their concern was             
 all defendants would seek review by the three judge panel, would              
 get review.  He explained the three judge panel today routinely               
 declines to reduce a sentence, but with the finality of the                   
 sentence, a large number of defendants would seek review.  He                 
 didn't think it would be a very effective safety valve, given the             
 intent of the legislation.                                                    
 MR. MCNALLY thought the best option maybe one uniquely suited to              
 Alaska, is in operation in other states, but is a bit different               
 from both SENATOR LEMAN or REPRESENTATIVE BUNDE'S bills.  He                  
 attributed the notion to HARRY DAVIS, the district attorney in                
 Fairbanks for 15 years and one of the few prosecutors who has used            
 it.  He said MR. DAVIS had experience with Alaska's old habitual              
 offender law that was referenced earlier.  He said it would create            
 a whole new crime, which would be the crime of "Three Strikes."               
 MR. MCNALLY said, instead of waiting for the third conviction where           
 the new sentencing scheme occurs, on the third prosecution, the               
 state would have to file an additional charge, not only charging an           
 offender with the third crime, but also charging the offender with            
 a "Three Strikes."                                                            
 MR. MCNALLY said it would be a fairly quick proceeding ...                    
 TAPE 94-9, SIDE B                                                             
 Number 001                                                                    
 ... and prove up the prior convictions, and he said it would be the           
 equivalent to the current scheme in most states that have a death             
 penalty, with a two part trial that would lead to the 99 year                 
 sentence without parole.  He explained it could be the Alaskan                
 equivalent to the death penalty, and he elaborated on the aspects             
 of the idea.  This was his third safety valve.                                
 SENATOR TAYLOR reviewed the last idea, saying it would be back to             
 prosecutorial discretion with more of an automatic resolution on              
 the third conviction.  MR. MCNALLY said he was correct.                       
 SENATOR TAYLOR reviewed a 1978 intensive survey by the Alaska                 
 Judicial Council on sentencing practices in the State, and was part           
 of the motivating factors for the mandatory sentencing which                  
 indicated a level of racial bias in the sentencing process.  About            
 that time, he said approximately 99% of the sentencing in this                
 State was being done with plea bargains through district attorneys,           
 and ratified by the judges.  SENATOR TAYLOR said he still had some            
 concerns about the plea bargaining process, but he praised AV GROSS           
 for halting the overt practice, although he knows it is still used            
 under the guise of charge bargaining.                                         
 SENATOR TAYLOR said he wanted a meaningful safety valve, and an               
 effective one, which has a focus on sentences that are going to               
 continue to pass muster with both the Alaska State Supreme Court,             
 the Ninth Circuit, and any other court that might be used.                    
 SENATOR TAYLOR said the committee will be very interested in the              
 report from MR. MCNALLY and the task force.  He asked JERRY                   
 LUCKHAUPT to help with the task force, also.  SENATOR TAYLOR said             
 he didn't want it to be a hollow act.                                         
 SENATOR DONLEY quoted MR. MCNALLY as supporting the "three strikes            
 you're out" for violent felonies, and described the breakdown of              
 the felonies with only two as violent crimes.  He suggested this              
 was a bit different from MR. MCNALLY'S third proposal.                        
 MR. MCNALLY thought SENATOR DONLEY was talking about parameters,              
 and he thought it was too soon to tell what all of the analysis               
 would produce.  He thought the question of degree of felonies in              
 the three strikes was one of the major questions on the table, and            
 he didn't think the Administration was at this point in a position            
 to address the felony question.                                               
 MR. MCNALLY thought the two other issues that should be on the                
 table is, first, whether the three crimes have to be sequential,              
 and he reviewed the federal bill and REPRESENTATIVE BUNDE'S bill in           
 this regard.                                                                  
 Number 062                                                                    
 SENATOR TAYLOR said he would appreciate the task force working on             
 the subject to be able to make certain it doesn't matter how or               
 when the three felonies occur.  He said he has seen too many people           
 released on conditions awaiting appeal, or released on conditions             
 awaiting sentencing, and committing another major crime while                 
 waiting.  SENATOR TAYLOR continued to express concern about the               
 delays in the appeal process.                                                 
 MR. MCNALLY concluded the questions from the Department of Law, and           
 said they would be working with the sponsor.  He said the Governor            
 and the Attorney General shared SENATOR TAYLOR'S concerns about               
 prosecutorial discretion and plea bargaining.                                 
 MR. MCNALLY reviewed his previous testimony before the Judiciary              
 Committee concerning capital punishment, and he said one of the               
 points made was that in 38 other states, as well as in the federal            
 government, the prosecutors have considerable leeway.  For example,           
 he used DOUG GUSTAFSON, who plead guilty to all accounts in federal           
 court, received life imprison without parole, to protect his sister           
 and to escape the death penalty.  He explained this negotiated                
 settlement is prevalent throughout the nation, and he thought, if             
 Alaska is not going to have a death penalty statute soon, the three           
 strikes could become the moral equivalent of the death penalty with           
 the worst felons.  He explained how the three strikes could work in           
 this kind of plea bargaining in Alaska, resulting in cost savings             
 to the Department of Corrections and to the whole Criminal Justice            
 Number 102                                                                    
 SENATOR DONLEY was interested in having MR. MCNALLY'S task force              
 examine how the conspiracy statute interplays with the provisions             
 on page 4, lines 8 through 13.  MR. MCNALLY said it was something             
 being considered, and he explained in substantive crimes the                  
 legislature might want to consider conspiracy, attempts, or                   
 solicitation to commit acts be included in the list to be counted             
 as one of the three strikes.  The committee members discussed                 
 conspiracy, consecutive sentences, and the options provided to the            
 judges.  MR. MCNALLY considered the Smithart Case in this context,            
 although the murderer was sentenced to 99 years.                              
 MR. MCNALLY suggested SENATOR TAYLOR would not want to create                 
 periods of appeal where, for two years, there is a bubble of                  
 protection that is not counted in additional crimes.  SENATOR                 
 TAYLOR agreed it was his concern and also agreed with SENATOR                 
 DONLEY'S concerns about the conspiracy aspects, too.                          
 SENATOR LITTLE asked to hear DIANE SCHENKER, from the Department of           
 Corrections, and SENATOR TAYLOR recognized it was a good idea to              
 look at the fiscal notes.  MS. SCHENKER said she would answer                 
 questions on the correction's fiscal note.                                    
 SENATOR LITTLE said she was very concerned about the requirements             
 the committee seems to be making of the Department of Corrections             
 without putting forth additional capital for operations.  She                 
 referred to the fiscal note explanation, page 4, item 8, to the               
 existing conditions in the system with current overcrowding.                  
 SENATOR LITTLE asked MS. SCHENKER if the legislation would require            
 construction of a new facility.                                               
 Number 146                                                                    
 MS. SCHENKER relayed the concerns of the Department of Corrections            
 there would be an accumulative effect from the individual crime               
 bills with the department not being able to predict the impact of             
 a bill, such as the conspiracy bill as well as the three strikes              
 bill.  She said the Department of Corrections has always found it             
 difficult to predict when these bills would result in the                     
 construction of an entirely new facilities.  MS. SCHENKER claimed,            
 if all of the crime legislation became law, the department would              
 need a large number of beds.  At present, she explained Corrections           
 was more than 200 prisoners over capacity, plus there was a waiting           
 list of over 700 people for minor crimes.                                     
 MS. SCHENKER stressed the Department of Corrections supports the              
 concept of three strikes, but she maintained the legislators need             
 a clear understanding it would be expensive.  She defended the                
 department's assumptions in the fiscal note as very conservative,             
 but she said these assumptions would change if not all three of the           
 felonies had to be "most serious."  She said if one of the felonies           
 doesn't, it would make their estimate more conservative.                      
 SENATOR DONLEY expressed appreciation for MS. SCHENKER'S testimony            
 and his concern for the accumulative effect of the legislation.  He           
 referred to a recent bulletin from Corrections, which said there              
 were no beds available.                                                       
 MS. SCHENKER said he was correct, and she described Corrections as            
 working on a daily basis with prosecutors, judges, and others to              
 juggle the overcrowding.  She described it as being in crisis,                
 looking for solutions, but not having extra room.                             
 SENATOR DONLEY quoted people as explaining the non-dangerous                  
 prisoners should be moved out into community facilities, but he               
 said these were not people he wanted to see in halfway houses.                
 SENATOR DONLEY thought there was a real need for a new facility or            
 some arrangement with another state, to house our criminals.  He              
 suggested the accumulative effect of all of the crime legislation             
 would seriously justify additional facilities, which he supported.            
 Number 194                                                                    
 SENATOR LEMAN asked MS. SCHENKER whether the approximately 3                  
 thousand incarcerated were physically dangerous, and he suggested             
 the woman who stole the Girl Scout money would not fit in this                
 category.  He wondered if any of those kind could be put in less              
 expensive beds.                                                               
 MS. SCHENKER agreed they were not all physically dangerous and said           
 presently there were over 300 people in halfway house community               
 beds, soft beds.  She described restitution centers but said most             
 of the current prisoners had some violence in their past.                     
 MS. SCHENKER explained the constant reevaluation and classification           
 of the prisoner, which has resulted in legislators who are                    
 uncomfortable with the level of classification.  MS. SCHENKER said            
 Corrections has identified those who need the lowest security,                
 making lower cost beds.                                                       
 SENATOR TAYLOR expressed concern, on page 7, the $100 million total           
 was considered too conservative by the Department of Corrections.             
 MS. SCHENKER defended the fiscal note explaining the Department of            
 Corrections spent a great deal of time on the issue, meeting with             
 the Judicial Council, and availing themselves of every piece of               
 criminal justice information available in the State.  Using that              
 information, she said she had made conservative assumptions.  She             
 said her only error was her assumption that all three felonies had            
 to be "most serious."                                                         
 MS. SCHENKER said contracting the new beds would be less than the             
 capital expense, and she discussed the impact of the number of                
 crime bills passed.  She added into the equation the increase in              
 population plus the unknown number from the legislation, would make           
 necessary a master plan for the Department of Corrections every               
 time any three digit number of prisoners was added.                           
 MS. SCHENKER projected the cost of another Spring Creek at $100               
 thousand per bed including the cost of the core operations, but               
 thought there could be some savings through expansion of existing             
 SENATOR TAYLOR picked up on the total additional expense of over              
 $100 million, and MS. SCHENKER described the impact would be over             
 a 41 year period.  She said the concerns of the Department of                 
 Corrections was the impact on the department after the fiscal note            
 has run out when there would be more prisoners than resources.                
 They discussed the impact of plea bargaining on the costs.                    
 Number 276                                                                    
 SENATOR DONLEY thought it was impossible for Correction to secure             
 a fair fiscal note until the department knows the parameters of the           
 variables identified by MR. MCNALLY.  He hoped the Finance                    
 Committee would deal realistically with the figures, because he               
 didn't want to see violent felons let loose because new laws did              
 not provide additional facilities.  SENATOR DONLEY said he                    
 supported money for building new facilities in either the budget or           
 the capital bill.                                                             
 SENATOR LEMAN said he didn't want a college campus type of a                  
 facility, and there was a general discussion on using remote sites            
 such as Attu.  SENATOR TAYLOR suggested the legislators would let             
 Mother Nature carry out the death sentence.                                   
 SENATOR TAYLOR said SB 234 would be held until MR. MCNALLY and his            
 task force can conclude their work.  He had asked their work to be            
 expedited and returned to committee.  SENATOR TAYLOR suggested MR.            
 MCNALLY work with Corrections on the fiscal note.                             
 There being no further business to come before the committee, the             
 meeting was adjourned at 2:55 p.m. by SENATOR TAYLOR.                         

Document Name Date/Time Subjects