Legislature(1993 - 1994)
02/09/1994 01:34 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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.
SENATOR TAYLOR returned HB 73 (ALASKA NATIVE CLAIMS SETTLEMENT ACT
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
definition.
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
work.
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.
SENATOR JACKO moved to pass HOUSE BILL NO. 73 (ALASKA NATIVE CLAIMS
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
budget.
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
work.
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
cost.
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
FY41.
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
homicides.
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
now?
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
system.
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
facilities.
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.
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