HOUSE FINANCE COMMITTEE April 21, 1995 8:30 A.M. TAPE HFC 95-90, Side 1, #000 - end. TAPE HFC 95-90, Side 2, #000 - end. CALL TO ORDER Co-Chair Mark Hanley called the House Finance Committee meeting to order at 8:40 a.m. PRESENT Co-Chair Hanley Co-Chair Foster Representative Martin Representative Brown Representative Navarre Representative Grussendorf Representative Therriault Representative Kelly Representative Kohring Representatives Parnell, and Mulder were absent from the meeting. ALSO PRESENT Representative Con Bunde; Laurie H. Otto, Deputy Attorney General, Criminal Division, Department of Law; Jerry Luckhaupt, Legislative Legal Counsel, Legislative Affairs Agency; Barbara Brink, Public Defender Agency, Department of Administration. SUMMARY HB 38 An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to mandatory life imprisonment, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35. CSHB 38 (JUD) was reported out of Committee with and with four fiscal impact notes; one by the Alaska Court System; one by the Department of Law; and two by the Department of Administration, dated 3/22/95; and with two zero fiscal notes; one by 1 the Department of Corrections; and one by the Department of Public Safety. HOUSE BILL NO. 38 "An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to mandatory life imprisonment, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35." REPRESENTATIVE CON BUNDE, SPONSOR spoke on behalf of HB 38. He explained that the legislation provides a definite term of imprisonment of 40 to 99 years for a specific group of offenders who have two separate prior class A or unclassified felony convictions. Under the legislation discretionary parole and good time sentence reductions are not available to these offenders. However, HB 38 allows those sentenced to a definite term of 40 to 99 years to ask the court for a reduction in sentence after they have served the greater of one half of the definite term or 30 years. He maintained that the proposed legislation gives prosecutors some discretion in the decision to pursue third strike sentencing. He observed that the provision will allow the prosecutor some flexibility to proceed with the normal presumptive sentencing provisions when necessary. He acknowledged that there are costs associated with keeping a person incarcerated for an extended period of time. He asserted that the legislation was drafted to keep the costs to a minimum. He emphasized that strong punishments can deter crime. He maintained that the legislation can help make the state a safer place to live. In response to a question by Representative Grussendorf, Representative Bunde clarified that convictions in other states would be counted if the conviction qualifies under the offenses listed and was in the recent past. LAURIE OTTO, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW responded to a question by Representative Therriault. She explained that multiple instances of lesser offenses would not kick an offender to a higher felony count. She referred to page 7, lines 1 - 3, which defines "most serious felony" as any unclassified or class A felony, or an attempt or conspiracy to commit those crimes. She observed that a person charged with attempting to commit a 2 class A felony, which is a class B felony, could trigger the provisions of the legislation. Representative Grussendorf observed that the Department of Law will have the discretion to seek sentencing. Ms. Otto pointed out that attorneys' ability to exercise discretion differs. She felt that the provision for discretion is an improvement to prior legislation. Representative Brown asked the definition of criminal solicitation under AS 11.31.110. Ms. Otto explained that criminal solicitation refers to the act of trying to get a person to commit a crime. In response to a question by Representative Brown, Representative Bunde noted that the legislation differs from prior legislation (HB 334, introduced in the 18th Legislature) by changing the mandatory sentence from 30 to 99 years, to 40 to 99 years. He observed that the average sentence currently served for a third felony conviction is 12.5 years. Ms. Otto added that the elimination of good time accounts for the difference of time served. She pointed out that good time allows supervision after release and helps to control behavior during custody. Representative Brown referred to HB 219. Mr. Bunde clarified that parole of terminally ill prisoners under the provisions of HB 219 would supercede the provisions of mandatory sentencing under HB 38. Ms. Otto explained that a prisoner can apply for modification of sentencing after one half of the sentence or 30 years, whichever is greater, is served. In response to a question by Representative Navarre, Ms. Otto explained that an amendment to guarantee that provisions of medical parole would supercede mandatory three strike sentencing cannot be included in HB 38 since HB 219 has not passed the legislature. She thought that the provisions of medical release would apply. JERRY LUCKHAUPT, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS AGENCY stated that HB 219 was drafted with the intent to apply not withstanding any other provision of law. He agreed that it would be impossible to draft to a bill that had not passed. Representative Grussendorf noted that most offenders sentenced under the legislation would be in their later years. Representative Brown observed that the legislation will be costly. She asked if the Department of Law feels the 3 legislation is necessary. Ms. Otto prefaced her statements by stressing that the current legislation is successful in narrowing the focus of offenses and requiring sequential convictions. She emphasized that the legislation will eliminate plea bargaining for the offenses outlined. She stressed the cost of taking these cases to trial. She provided members with charts detailing serious felonies referred for prosecution, misdemeanors referred for prosecution, the number of trials and the amount of prosecutors from 1989 to 1995 (Attachment 1). She summarized that the use of plea bargaining has enabled the Department to keep pace with substantial increases in serious felonies and misdemeanors referred to prosecution without an increase in prosecutors. She maintained that the Department cannot handle the increase in trial time without increased resources. Ms. Otto stated that if there are additional resources to put in to prosecution that she would choose to use the money to try first degree robbery and first degree sexual assault cases; and competently handle these cases instead of channeling scarce resources into getting those that are already receiving long sentences, longer sentences and being forced to take these cases to trial. In response to a question by Representative Martin, Ms. Otto observed that the ban on plea bargaining was officially lifted over a year ago. She noted that plea bargaining has increased in the past four years. Representative Martin expressed concern that plea bargaining is undermining justice and encouraging more crime. Ms. Otto briefly reviewed the recent use of plea bargaining. She observed that the ban placed by former Attorney General Av Gross was eliminated under Governor Hickel. She stressed that state revenues are declining. She observed the cost of providing public defenders and advocates, and court costs associated with taking cases to trial. She agreed with Representative Martin that the legislation will provide an incentive to plea bargain lesser charges. She observed that offenders will fight to prevent convictions on their second strike. Ms. Otto agreed that these serious offenders need to be in jail for a long time. She stressed that money is the issue. Representative Bunde disagreed that plea bargaining will increase. He stated that offenders will opt to have their cases tried in hopes of convincing a jury. He maintained that criminals commit crime knowing that they can plea bargain to a lesser crime. Co-Chair Hanley observed that offenders may try to plea under an unclassified or class A felony charge. 4 Representative Therriault summarized that the Department's position is that the legislation represents a good idea, but questions whether the state can afford the cost. He expressed concern that state revenues cannot support the cost of the legislation. Representative Bunde questioned the accuracy of the fiscal notes. He observed that there will be no cost to the corrections system for the first twelve and a half years. He emphasized that the old system does not work. He maintained that it costs more money to allow criminals to be on the street. He estimated that 5 to 6 people would fall under the purview of the legislation. Representative Therriault pointed out that there is a potential huge impact to the criminal system at the end of twelve and a half years. He stressed the need to balance support of the legislation with fiscal reality. Representative Martin suggested that the "greatest security in the world is to be an Alaskan prisoner". He observed that prisoners have great medical benefits, three meals, recreational benefits, housing, clothing and shelter. He asserted that the real cost is the "revolving door" and crime on the street. BARBARA BRINK, DEPUTY PUBLIC DEFENDER, ALASKA PUBLIC DEFENDER'S AGENCY, ANCHORAGE testified via the teleconference network. She stressed there is no possibility of parole or good time allowed under the legislation. She observed that HB 38 creates the most severe penalty available in the state. She maintained that the legislation will result in increased litigation. She observed that anyone charged with a third strike will definitely go to trial. She emphasized that these cases will require the most skilled and experienced litigators and most expensive attorneys. She stated that the legislation will have an immediate impact. She noted that the Alaska Judicial Council estimated that between 10 and 34 cases could be charged. She observed that the Department of Law estimated 10 to 15 cases a year could be charged under this section. She suggested that the effect would be the same as 10 to 15 additional homicide cases a year. (Tape Change, HFC 95-90, Side 2) He added that prior convictions will also have to be litigated to assure the validity of the two prior strikes. She emphasized that some prior strikes could have occurred in other states. She added that offenders will demand trials on their first two strikes as well. She emphasized 5 that 94 percent of current felony cases are resolved without trial. She maintained that plea bargaining allows the system to operate. She asserted that the system will collapse without plea bargaining. Ms. Brink referred to experiences of other states that have initiated similar legislation. She maintained that every state that has enacted third offense legislation has consistently underestimated the impact on their criminal justice system. She stated that in California one year after a three strikes bill was adopted, less than 14 percent of their felony cases are plea bargained. There is a backlog in California of 740,000 cases. She stressed that there has not been any evidence demonstrating a decrease in the crime rate. Violent crimes have increased in California. She asserted that more cases will be filed as a result of the legislation. Ms. Brink observed that the rate of violent crime fell 22 percent between 1980 and 1992, based on statistics by the Federal Bureau of Investigations and the Bureau of Justice. The rate is lower today than in 1993. In Alaska the violent crime rate is approximately the same as in 1985. Ms. Brink stressed that violent crime is increasing in younger populations. She pointed out that the legislation does not address the increase of crimes among younger offenders. She observed that crime among offenders 35 years of age and older has decreased dramatically. Ms. Brink pointed out that in Washington state criminals have shown a tendency to be more desperate or violent when officers try to arrest offenders. She referred to an article in the New York Times, 2/94, where a burglary suspect became violent for fear of receiving a life sentence under the third offense provision. Ms. Brink suggested resources could be better spent. She observed that the largest population of inmates are 18 to 24 years of age. She noted that the typical inmate is uneducated with no high school degree. One third of all inmates are unemployed when arrested. Most inmates are raised by single parents. Most earn an annual income of less than $10.0 thousand dollars. Half of all violent offenders are under the influence of drugs or alcohol or both when their offense was committed. Representative Martin asked if statistics demonstrating a decrease of serious crimes are the result of lowering crimes through plea bargaining. Ms. Brink clarified that the statistics are not altered by plea bargaining since they are still classified as violent crimes. 6 BRANT MCGEE, OFFICE OF PUBLIC ADVOCACY testified via the teleconference network from Anchorage. He echoed the remarks of Ms. Brink. He suggested that HB 38 would have a dramatic fiscal impact. He estimated that each case would equal three cases due to the prior convictions. He did not think that the additional 5 lawyers identified in the fiscal note would be sufficient to cover the cost of the legislation. He added that the Alaska Court System would also be dramatically affected. Representative Bunde responded that legislation in California and Washington states could not be equated to HB 38 because of the narrower scope of HB 38. He emphasized the deterrent effect of the legislation. He asked if the present system is working and what will be the cost of doing nothing. Representative Navarre asked if Representative Bunde would support the financial cost of the legislation. Representative Bunde stated that if the costs are documented he would be willing to pay taxes to support the legislation. Representative Brown compared categories of felonies contained in HB 38 and HB 334 with Mr. Luckhaupt. They summarized that HB 334, passed by the House in the Eighteenth Legislature, narrowed the scope of legislation to only include crimes against persons. He explained that HB 38 was drafted to adopt most of the amendments adopted by the House for HB 334. He further explained that HB 38 dropped out attempts to commit class A offenses from HB 334. He stated that the intent was to include actually committed class A and committed and attempted unclassified crimes. Representative Brown asked if all the crimes under AS 11 need to be included. Representative Bunde replied that he did want to include promoting prosecution of a person under the age of 16. Mr. Luckhaupt pointed out that crimes against persons includes arson of an occupied structure. Representative Bunde indicated that he would not object to the exclusion of escape or misconduct involving a controlled substance of the second degree. Representative Martin MOVED to report CSHB 38 (JUD) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Brown expressed concern that further discussion was necessary. She pointed out that the fiscal considerations are extreme. The total cost of the first year's implementation would be approximately $1.3 million dollars. She stated she did not see the benefit which would be derived from the legislation. 7 Representative Grussendorf spoke in support of the legislation. He expressed his desire that the Department of Law use discretion in its use of the provision. He emphasized that the legislation is not the only answer. A roll call vote was taken on the MOTION to move CSHB 38 from Committee. IN FAVOR: Grussendorf, Kelly, Kohring, Martin, Therriault, Foster, Hanley OPPOSED: Brown Representatives Parnell, Mulder and Navarre were absent from the vote. The MOTION PASSED (7-1). CSHB 38 (JUD) was reported out of Committee with and with four fiscal impact notes; one by the Alaska Court System; one by the Department of Law; and two by the Department of Administration, dated 3/22/95; and with two zero fiscal notes; one by the Department of Corrections; and one by the Department of Public Safety. ADJOURNMENT The meeting adjourned at 10:00 a.m. 8