Legislature(1993 - 1994)
02/17/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 308
SGT. VENABLE also mentioned his support for HB 100,
Prosecution of Juvenile Felons.
Number 314
SERGEANT JAMES LAMOREAUX of the NORTH SLOPE BOROUGH
DEPARTMENT OF PUBLIC SAFETY (Villages Unit), testified via
teleconference from Barrow. He said that he had seen
numerous occasions in which drug traffickers used villagers
to sell drugs and launder money, leaving enforcement
officials with little ability to prosecute the traffickers
themselves. He added that Chief Christensen was not able to
be on the teleconference, but requested that Sgt. Lamoreaux
convey his full support of HB 43. Sgt. Lamoreaux commented
that HB 43 was a very thorough bill and applauded the bill's
coverage of only the more serious crimes.
Number 360
SGT. LAMOREAUX indicated his support of HB 100 also, saying
that it could be implemented in rural areas. He expressed a
concern that law enforcement agencies be adequately funded
to carry out HB 100's intent.
Number 378
RAY BROWN, representing the ALASKA ACADEMY OF TRIAL LAWYERS,
testified via teleconference from Anchorage. He said that
if HB 43 were expected to be used as an interventional
device, it would fail. He stated that most of the
applications of a conspiracy law would deal with after-the-
fact criminal activity, primarily completed drug
conspiracies.
(REP. DAVIDSON joined the committee.)
Number 419
MR. BROWN commented that California and New York, with
significant gang activity, had conspiracy laws that had done
nothing to curtail that activity. He expressed his belief
that the intentions behind HB 43 were good, but no bill ever
passed by Congress had resulted in more prosecutorial abuse
and spawned more litigation than the federal conspiracy and
RICO (Racketeering Influenced Corrupt Organization) laws.
MR. BROWN said that conspiracy laws were bad policy. He
cited his objections to the bill from a fiscal standpoint.
He noted that there were laws already on the books which
covered some aspects of crimes of conspiracy and those
statutes were sufficient.
Number 430
MR. BROWN, in response to a comment that a conspiracy law
would allow more evidence to be presented to a jury,
asserted that this was simply untrue. He said a conspiracy
law would not give prosecutors any additional tools. He
expressed his opinion that HB 43 would spawn multiple-
defendant trials, which instead of lasting several days,
would last several weeks. He noted that courtrooms in
Alaska were not set up for multiple-defendant trials.
Number 450
MR. BROWN commented that multiple-defendant trials would
require multiple attorneys, creating a tremendous burden on
the Office of Public Advocacy to find attorneys willing to
work on multiple-defendant cases, particularly in rural
areas. He noted that there were not many criminal defense
attorneys willing to get involved in multiple-defendant
conspiracy litigation. He said this was true in Anchorage,
and the problem would be compounded in the Bush.
Number 500
MR. BROWN asked the committee to think about HB 43's impact
on the state's already overcrowded prisons, given the
existing presumptive sentencing laws. He urged the
committee to consider both the policy considerations and the
potentially staggering fiscal implications of HB 43.
Number 569
REP. PHILLIPS asked how a conspiracy law could be so bad if
every state in the nation except for Alaska had such a law
on the books. She asked Mr. Brown if the few crimes
addressed under HB 43 would mitigate against his fear that
the bill would result in prosecutorial abuse.
Number 582
MR. BROWN said HB 43 would not mitigate against the use of
multiple-defendant trials. He stated HB 43 would be better
than conspiracy laws in some other states, including Oregon,
where a person could conspire to commit a misdemeanor and be
convicted of a felony for engaging in a conspiracy. He
added that HB 43 would also be better than the federal RICO
law. But, he said, HB 43 was still not good policy.
MR. BROWN remarked that he did not know if all 49 states had
conspiracy laws in place, but he was sure that a significant
majority of states did. He mentioned that Alaska had very
strong attempt statutes and a very strong accomplice
liability statute, which embraced all of the concerns being
articulated during the hearing. He cited Alaska's unique
privacy law and case law directed toward protecting the
rights of others.
Number 604
MR. BROWN stated that Alaska did not apply "strict
liability" to the same degree that the other states did. He
expressed his opinion that it was not necessarily good
policy to follow the lead of other states without
understanding the complete statutory framework in Alaska as
compared to other states.
MR. BROWN said the public would suffer tremendously from the
fiscal implications of HB 43.
Number 649
CHAIRMAN PORTER reiterated Mr. Brown's assertion that
Alaska's current criminal statutory framework would limit
the gap where the conspiracy law would fit. He asked Mr.
Brown why, with that in mind, he still felt that HB 43 would
result in a significant fiscal impact.
Number 670
MR. BROWN said the fiscal impact would result from HB 43's
spawning of multiple-defendant indictments in cases that
could not ordinarily be joined for prosecution. He said it
would greatly impact the prosecutorial decision to indict in
drug cases.
Number 688
DEPUTY CHIEF DUANE UDLAND testified in support of HB 43 via
teleconference from Anchorage. He stated that he had
testified many times over the years on conspiracy laws. He
said he was suspicious that some of the fiscal notes for
HB 43 were worst-case scenarios. He stated his belief that
the high fiscal impact projected by the Office of Public
Advocacy and the Public Defender's Office reflected those
agencies' belief that HB 43 would be abused.
DEPUTY CHIEF UDLAND commented that the arguments against
HB 43 reminded him of the arguments made against the
recriminalization of marijuana law. He argued that there
had been no abuse of the marijuana law, and expressed his
opinion that no abuse would result from the conspiracy law,
either. He stated his belief that Alaska had a high
standard of law enforcement, and that if the law were in
fact abused, it would be easily repealed.
DEPUTY CHIEF UDLAND said that he felt that the conspiracy
law would not be applied in a large number of cases.
However, he noted that there were some cases in which it was
very appropriate for people to be charged under conspiracy
laws. He noted that he had no moral dilemma in supporting a
law that would help to take "bad guys" off of the streets.
Number 750
REP. PHILLIPS asked Deputy Chief Udland if he recommended
that any changes be made to HB 43.
Number 753
DEPUTY CHIEF UDLAND replied that he was comfortable with the
bill in its present form.
Number 759
CHAIRMAN PORTER asked Deputy Chief Udland if he wanted to
comment on HB 100.
Number 760
DEPUTY CHIEF UDLAND responded that he was happy to see HB
100 introduced. He mentioned that it was the same as last
year's HB 101. He cited several other bills in the hopper
this year that dealt with juvenile justice issues. He
commented that it was timely that the juvenile justice
system be reexamined, due to the change in juvenile crimes
over the years.
Number 770
DEPUTY CHIEF UDLAND stated that he did not believe that HB
100 went far enough. He urged committee members to look to
SB 54, which included some automatic waiver rules.
Number 781
OFFICER LINDA BRANCHFLOWER, representing the Alaska Peace
Officers Association, testified via teleconference from
Anchorage in support of HB 43. She stated that the specter
of prosecutorial abuse was a red herring. She also echoed
Deputy Chief Udland's comments on HB 43.
Number 796
OFFICER BRANCHFLOWER said that she concurred with Deputy
Chief Udland's comments on HB 100. She recommended
replacing the language in HB 100 with that from SB 54.
TAPE 93-14, SIDE B
Number 017
DEPUTY COMMISSIONER C.E. SWACKHAMMER, from the DEPARTMENT OF
PUBLIC SAFETY, testified in support of HB 43. He said that
the law would have been applicable to a recent narcotics
case in Dutch Harbor. He stated that it was difficult to
prosecute all of the individuals involved in that case due
to the lack of a conspiracy law. He expressed an opinion
that Mr. Brown's testimony included many arguments for
passing a conspiracy law. He said he had seen many
instances in which complete information could not be
presented to a jury due to the occurrence of separate
trials. He noted that HB 43 would change that. He added
that HB 43 paralleled federal law.
Number 069
REP. PHILLIPS asked Deputy Commissioner Swackhammer if he
recommended that any changes be made to HB 43.
Number 074
DEPUTY COMMISSIONER SWACKHAMMER commented that he did not
recommend any changes to the bill.
Number 081
JOHN SALEMI, DIRECTOR OF THE PUBLIC DEFENDER AGENCY, said
that as a citizen of Alaska he was concerned about public
safety. He said that Rep. Phillips' comments about the
number of other states that had conspiracy laws on the books
reminded him of the phrase, "we don't give a damn how they
do it Outside." He expressed his belief that some of the
recent criminal law trends were more politics than public
safety. He stated that state officials needed to balance
the creation of new laws with the state's diminishing
revenues.
Number 120
MR. SALEMI commented that it was difficult to accurately
predict HB 43's fiscal impact on the Public Defender Agency.
But, he noted, the conspiracy law would have a distinct
impact if it were important to law enforcement officials.
He said that in his experience, three to four defense
lawyers in a courtroom, plus prosecutors, created a
synergistic effect. That effect caused him to think that
the use of multiple-defendant trials would not result in a
decreased amount of work for the court system, law
enforcement, the prosecution, or the defense.
Number 140
MR. SALEMI said the Department of Law had taken a different
position in past years regarding the fiscal impact of
conspiracy laws. Mr. Salemi's impression was that in the
past, the Department of Law did not think that the
conspiracy law was a priority item with respect to public
safety. He stated that the Department of Law's current
fiscal note said that the crime of conspiracy would be used
as an additional count on a case that would have been
prosecuted anyway. Mr. Salemi noted that in that case, it
was his opinion that little priority should be given to the
conspiracy law, given that its application would cost money.
Number 160
MR. SALEMI mentioned that conspiracy prosecutions were
expensive. The conspiracy law addressed serious felony
cases, he said, and those cases were expensive to prosecute.
He commented that conspiracy cases were "bulky" -- i.e.,
there was a great deal of material to absorb. He noted that
multiple-defendant litigation was often very protracted,
with lots of pre-trial issues and hearings.
MR. SALEMI recalled that past discussion of a conspiracy law
included the notion that a conspiracy law would "level the
playing field," as if the playing field were now tilted in
favor of the defense. He expressed his opinion that the
playing field was already level. He also mentioned another
past rationale for passing a conspiracy law -- the
likelihood that one of the conspirators would turn state's
evidence, resulting in a reduced number of trials. Mr.
Salemi said that this did occur on occasion, but he believed
that it was not, in and of itself, justification for
creating the crime of conspiracy in state law.
Number 241
MR. SALEMI said that laws which would be calculated to make
it easier to deal with defendants should be viewed in the
context of due process considerations. He added that
changing criminal law rules in piecemeal fashion created the
danger of making the system unfair.
Number 251
MR. SALEMI cited Deputy Chief Udland's comment that the
marijuana recriminalization law had virtually no effect in
terms of law enforcement. He said that he had understood
that the marijuana law was not going to be a priority for
law enforcement. His view was that creating a crime that
law enforcement was not going to take seriously and did not
have the resources to enforce sent the wrong message to the
public. He said his agency did not argue that the marijuana
law would have had a distinct fiscal impact.
MR. SALEMI apologized for the fact that no explanation was
attached to the Public Defender Agency's fiscal note.
Number 294
REP. NORDLUND asked if it were possible that a group of
people would be charged with conspiracy over an act that
they had no intention of committing.
Number 304
MR. SALEMI said that it was possible, although unlikely, due
to the professional conduct of law enforcement and
prosecution officials.
Number 315
REP. NORDLUND asked Mr. Salemi if his primary concerns
regarding HB 43 were its fiscal impact and its unnecessary
nature, due to existing criminal laws.
Number 320
MR. SALEMI said that the law did not seem to be a priority
of the Department of Law. He noted that the Department of
Law had said that it would just add the count of conspiracy
to existing cases against defendants. He added that the
Department of Law thought that the crime of conspiracy would
be useful because of that additional count, and also because
it would relax the rules of evidence. He stated that things
which law enforcement saw as useful, in terms of gaining a
prosecution, could be seen as an erosion of individual
rights. He asserted his belief that defendants must be
given fair hearings.
Number 365
REP. PHILLIPS asked Mr. Salemi if he was accustomed to
basing his arguments for or against a bill on that bill's
fiscal impact, rather than on the substance of the bill.
Number 373
MR. SALEMI responded that it depended on the bill. He
stated that he did not play with the numbers on Public
Defender Agency fiscal notes to achieve a desired result.
He said it was an open question as to how prosecutors would
use a conspiracy law. But, he noted, putting a new felony
conspiracy law on the books would impact his agency to some
degree. He said he felt his fiscal note reflected a
conservative approach.
Number 398
REP. PHILLIPS expressed her concern that Mr. Salemi's
testimony focused on the fiscal impact on HB 43 and not on
the substance of the bill.
Number 412
CHAIRMAN PORTER commented that if a conspiracy law would
cause defendants to turn state's evidence, then he was in
favor of it. He mentioned that the Public Defender Agency's
fiscal note reflected a 5.3 percent increase in the agency's
overall budget.
Number 431
MR. SALEMI reiterated his earlier comment that it was
difficult to quantify the impact of HB 43 and admitted that
his fiscal note was somewhat speculative. He said
conspiracy cases were burdensome to litigate from a defense
perspective. He explained how his agency had arrived at the
figures in the fiscal note, and he understood the Chairman's
skepticism. He stated that he felt that his fiscal note was
a realistic assessment.
Number 465
BRANT MCGEE, DIRECTOR OF THE OFFICE OF PUBLIC ADVOCACY, said
he had always been opposed to the conspiracy law. First of
all, he felt it was unnecessary. He noted that Deputy
Commissioner Swackhammer's Dutch Harbor example was the
first instance that he had ever heard of in which
individuals involved in a conspiracy to distribute narcotics
could not be prosecuted without a conspiracy law.
MR. MCGEE commented that conspiracy laws gave law
enforcement officials the ability to charge individuals
peripherally involved in a conspiracy with the same crime as
more involved individuals. He said he had a philosophical
disagreement with conspiracy law proponents on this point.
He said he had not dealt with conspiracy laws before, but
felt that HB 43 ran a significant risk of putting innocent
people and peripherally involved people in jail.
Number 515
MR. MCGEE mentioned that conspiracy laws had been widely
used by federal officials to suppress political dissent and
called the laws "the handmaiden of abuse." He noted his
concerns over the fiscal impact of HB 43. He said his
agency had experienced a 69 percent increase in its caseload
since 1988. He stated that the federal conspiracy law had
been used successfully in Alaska for some time and wondered
aloud why the state was volunteering to prosecute conspiracy
when the state could refer cases to federal authorities.
MR. MCGEE noted that he saw no demonstrated need for HB 43,
although he believed it would be used often. He said
putting more lawyers in a courtroom would increase the
length of proceedings exponentially. He stated that tying
up lawyers in lengthy conspiracy cases would impede the
prosecution of the state's other cases. He explained how he
had arrived at the figures on his agency's fiscal note, but
said no one really knew what would happen if the conspiracy
law were enacted. What they did know was that the law would
be used and would cost the state money.
Number 597
REP. KOTT asked Mr. McGee why the fiscal note showed the
cost of HB 43 increasing in later years.
Number 603
MR. MCGEE said that his agency was given a "magic percentage
figure" every year, applied to each succeeding fiscal year,
to reflect inflation and other factors. The higher figures
in later years of the fiscal note did not imply that the
agency would be shifting more resources to the defense of
conspiracy cases, he explained. He said the conspiracy law
would cost his agency more in the second and third years
because of appeals. He reiterated his belief that it was
difficult to estimate the fiscal impact of HB 43.
Number 625
REP. KOTT noted that he had not seen other fiscal notes that
used the "magic percentage figure."
Number 631
REP. PHILLIPS stated that the conspiracy bill had been
around for the last six or seven years, and people had
testified that it was needed. How then, she asked, could
Mr. McGee say that the law was unnecessary.
Number 640
MR. MCGEE indicated that the Department of Law had been
asked to show cases in which the conspiracy law had been
needed, but had not presented any evidence. He added that
Deputy Commissioner Swackhammer's example was the first
instance that he had heard where a conspiracy law would have
enabled law enforcement officials to reach individuals
involved in a narcotics ring.
Number 649
REP. PHILLIPS said that perhaps today, with the drug
activity in Alaska, the point at which a conspiracy law was
needed had been reached.
Number 652
MR. MCGEE said that Rep. Phillips could be correct. He
added that he would not be surprised to see conspiracy laws
applied to bootlegging activity as well. However, he said
he did not know if a peripherally-involved conspirator
should be equally criminally liable with a more involved
conspirator.
Number 660
CHAIRMAN PORTER said that the Office of Public Advocacy's
fiscal note reflected a 7.8 percent increase in its total
budget.
Number 665
MR. MCGEE said that the reason for the significant fiscal
impact was that felony cases were generally the most
expensive that his agency handled.
Number 671
CHAIRMAN PORTER said that because HB 43 only covered the
most serious crimes, and because the law might prevent those
crimes from occurring in the first place, and because
conspiracy often would just be an additional charge in an
existing case, could the fiscal impact actually be lower
than his agency had estimated?
Number 682
MR. MCGEE said that he could imagine a situation in which an
arrest was made on a conspiracy charge prior to a crime
being committed or attempted, but thought those situations
would be rare.
TAPE 93-15, SIDE A
Number 000
REP. GREEN called attention to the zero fiscal notes from
the Departments of Law and Public Safety, and those
agencies' favorable positions on HB 43, and contrasted that
with departments opposed to the bill and their high fiscal
notes. He questioned the validity of the high fiscal notes.
MR. MCGEE said that the figures in his agency's fiscal note
did not depend on his position on the substance of a bill.
He then reasserted the validity of his HB 43 fiscal note.
Number 094
DEAN GUANELI, from the DEPARTMENT OF LAW'S CRIMINAL
DIVISION, noted that HB 43 was a priority of the law
enforcement community. He cited the U.S. Attorney's
continued support for a state conspiracy law. He noted that
federal officials successfully used their conspiracy law in
Alaska, particularly in drug prosecutions.
MR. GUANELI said that a conspiracy bill had passed the
Senate the year before, and made its way through two House
committees, but died in the final days of the session. He
explained that there were various ways in which a person
could be prosecuted for a crime, without actually pulling a
trigger, but there were gaps in Alaska law. One of those
gaps, he said, was conspiracy. He stated that a conspiracy
law provided that when two or more people got together,
agreed to commit an offense, and one of the individuals
subsequently committed some act in furtherance of that
agreement, a conspiracy had occurred. A person could be
charged with conspiracy even if another crime never actually
took place.
Number 230
MR. GUANELI said the theory was that planning and agreeing
to commit an offense made it more likely that an offense
would actually be committed. He stated that conspiracy laws
could prevent crimes from occurring, by allowing law
enforcement to intervene early on.
Number 240
MR. GUANELI commented that multiple-defendant trials
resulted in some efficiency and some inefficiency. He noted
that defendants did not like multiple-defendant trials
because one of the defendants would likely turn state's
evidence. He cited the Gustafson mail-bombing case as an
example of the usefulness of a conspiracy law.
Number 290
MR. GUANELI stated that a conspiracy law would help law
enforcement officials get at heads of drug rings. The
leaders of those rings kept their hands clean, he said, and
did not sell drugs themselves. That made prosecution of the
leaders difficult, he added. He mentioned that knocking out
one drug ring in Alaska resulted in a significant decrease
in the amount of drugs available.
MR. GUANELI said a conspiracy law was a useful tool,
although it might not be used in a large number of cases.
He noted that the Department of Law's fiscal note was based
on the assumption that the law would not be employed often.
MR. GUANELI responded to Mr. McGee's comment about
conspiracy laws being used to suppress political dissent by
stating that it was impossible with HB 43, which was limited
to certain serious felonies. He asserted the Department of
Law's support for the bill, and noted that a conspiracy bill
was part of the Governor's crime package last year and would
be again this year.
Number 358
REP. KOTT stated that he believed HB 43 to be a good bill,
but questioned whether the state could afford it. He asked
Mr. Guaneli about the comment on the Department of Law's
fiscal note about no "significant increase" in the number of
cases prosecuted.
Number 375
MR. GUANELI replied that his department's fiscal note was
zero because he felt that HB 43's impact would be small or
entirely speculative. He said his agency received about
5,000 felony cases and about 25,000 misdemeanor cases every
year, a certain percentage of which were prosecuted. He
stated that he could anticipate approximately 50 to 100
additional cases that would not otherwise be received by his
office if a conspiracy law were in place. He indicated that
this was a small percentage of the Department's felony
caseload and would not justify the addition of personnel.
MR. GUANELI stated that HB 43 would not result in a large
number of new cases, but might change the way that existing
cases were handled. He said HB 43 would give significant
advantages to prosecutors. He indicated that the conspiracy
law might encourage the resolution of cases prior to a
trial, actually saving the Department of Law money.
Number 443
CHAIRMAN PORTER said that while HB 43 technically added a
new criminal offense to state law, it would prevent crimes
that otherwise would be committed and prosecuted by the
state. He added that HB 43 would give prosecutors an
additional tool.
REP. KOTT asked if solicitation and accomplice laws filled
the void to some degree.
Number 460
CHAIRMAN PORTER said that was true, to a certain extent.
Gaps still existed, he noted. He addressed an earlier
argument that since federal prosecutors applied the federal
conspiracy law in Alaska, it was unnecessary for the state
to tackle conspiracy on its own. He mentioned the pending
change in the U.S. Attorney in Alaska and the potential
altering of the federal/state law enforcement cooperation.
Number 479
MR. GUANELI said the federal prosecutors in Alaska had
limited resources and therefore would only take certain
cases.
Number 498
CHAIRMAN PORTER told those present that there wasn't
sufficient time to hear HB 97 or HB 100. He apologized for
this, but noted there was more testimony on HB 43 than he
had anticipated. Both HB 97 and HB 100 were rescheduled for
the following week.
REP. GREEN asked Mr. Guaneli to tell the committee about the
success rate for conspiracy cases that came to trial.
Number 523
MR. GUANELI said he did not have the information that Rep.
Green requested. However, he noted that a conspiracy law
would provide a number of advantages to prosecutors.
Number 531
REP. KOTT asked if the testimony on HB 43 could be curtailed
and HB 100 taken up, so that those at the teleconference
sites could testify. He moved that the committee pass HB 43
out with individual recommendations.
Number 541
REP. NORDLUND objected, as the committee had not yet
discussed HB 43. He said that it would be premature to pass
the bill out at that time.
Number 550
CHAIRMAN PORTER said that he anticipated some discussion on
HB 43, which was why he had rescheduled HB 97 and HB 100 to
the following week.
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