Legislature(1999 - 2000)
03/23/2000 01:55 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 350
An Act repealing the statutory bars to the State of
Alaska's prosecution of a criminal act that resulted in
a conviction or acquittal by the United States, another
state, or territory.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, explained that the bill would
allow the State of Alaska to prosecute and punish an
offender for a crime that has been prosecuted by the federal
government or by another state. She noted that since early
Statehood, the State of Alaska has had statutory
prohibitions on the prosecuting and punishing a person,
including a corporation, for an act that another
jurisdiction has already prosecuted. The policy is not
based on constitutional law; the State and federal
constitutional prohibitions against being placed twice in
jeopardy for the same act do not prohibit separate
jurisdictions from separately prosecuting, and punishing the
same act under different bodies of law.
Ms. Carpeneti added that recent events have suggested a
reconsideration of the policy. The federal prosecution of a
cruise ship company for illegally discharging water polluted
with oil and hazardous waste into our waters demonstrate
that the harm suffered by the State should have been
addressed in a separate prosecution. HB 350 will allow
Alaska to prosecute an offender if a similar situation
should arise. She noted that two cases have arisen in the
last two years. The first was with the Royal Caribbean
Cruise Line. The federal government prosecuted it under
environmental criminal laws with a fine of $1800 dollars.
In that case, Alaska did have substantial interest in
litigating rights as a State and was unable to do so. The
second example is the Raging Bond case. Ms. Carpeneti
noted that woman defrauded people out of millions of dollars
and was criminally prosecuted by the federal government for
the scheme itself. Later the State prosecuted her for
securities violations. The State is appealing that case.
HB 350 would repeal the statutes that prohibit the State
from prosecuting cases such as these.
Co-Chair Mulder asked if the State has the ability to
prosecute under civil law. Ms. Carpeneti acknowledged that
they did. She noted that there is a civil settlement.
In response to suggestions by Co-Chair Mulder, Ms. Carpeneti
disagreed noting that the civil resolution of a case is very
different from a criminal resolution. A civil resolution
is done mainly to pay back the losses rather than to punish
people who violate our criminal laws in the State. The
settlement was for $3.5 million dollars which is not nearly
the amount that could have been pursued in a criminal fine.
She added that the State could pursue fines in many other
categories with the Royal Caribbean Line through the
proposed legislation.
Co-Chair Mulder referenced the fiscal note from the Public
Defenders Agency. He asked why Alaska has had a long-
standing bar against excessive prosecution. Ms. Carpeneti
replied that it is unknown why that statute was adopted at
statehood. It is assumed that Alaska's statutes were
borrowed from other western states. Prosecution in those
states is on county by county basis, whereas, Alaska has a
statewide prosecution system. It is more important to
clarify that one county can not prosecute a criminal act.
The purpose of the bill is to address where Alaska's
interest has not been vindicated.
Co-Chair Mulder suggested that removing the bar would not
provide assurance that the proposed change would not allow
for a multitude of prosecuting at both the federal and State
level. Ms. Carpeneti pointed out that there is a Letter of
Intent forwarded from the House Judiciary Committee, which
clarifies that concern.
Co-Chair Mulder argued that he did not see a compelling
reason why a case would need to be prosecuted at both the
State and federal level. Ms. Carpeneti replied that in some
cases, there isn't a "compelling" reason and the State
should not prosecute. The State works with the federal
government on drug cases all the time. There is never a
particular reason in those cases. In certain situations as
the two listed above, there is an interest which the State
should have been able to pursue.
Co-Chair Mulder disagreed. He questions the reason for
sticking the State law on those victims for expanded
latitude. Ms. Carpeneti replied that civil penalties are
part of the cost of "doing business" for most corporations.
Criminal penalties are more serious and are a punishment for
behavior that is a crime. The ability to prosecute somebody
criminally is an important legal ability.
Co-Chair Mulder asked if it was such a compelling interest
to pursue the Royal Caribbean Cruise Line, why did the State
not work with the federal government. Ms. Carpeneti stated
that we could have done that, but that does not mean that
they would not have prosecuted on their own.
Representative J. Davies asked if there was a general bar
limitation on double jeopardy between the State and the
federal government. He noted that the legislation would
provide the State the same latitude which the federal
government currently has. Ms. Carpeneti noted that the
double jeopardy provision does prohibit the same
governmental authority from prosecuting the same act again.
It would prohibit the municipality from prosecuting the same
act as they derive their source of power from the same State
power latitude that is available to the federal government.
The federal government does not have a provision like that
proposed in HB 350; however, the feds do have guideline
provisions.
Vice Chair Bunde asked if there was a retroactive portion to
the legislation. Ms. Carpeneti stated there was not.
Representative Bunde asked if there was an interconnection
with the finding impacts on activities outside Alaska. Ms.
Carpeneti explained that there was a $18 million dollar
criminal fine that would remain separate. Representative
Bunde asked if the legislation would be considered a "money
maker" for the State. Ms. Carpeneti replied that would be
going too far; she noted that the State has interest in
"justice" which moves beyond "money".
Representative J. Davies referenced the Judiciary Letter of
Intent. He recommended incorporating the intent language
into statute. Ms. Carpeneti advised that inclusion of that
language in statute would make the Department responsible
for litigating that issue in every case. She recommended
language which would specify that the federal government
require the Attorney General or that designee approval,
subsequent prosecutions which the Legislature could
consider.
Co-Chair Therriault asked about the federal perimeters
regarding whether lawful action is covered. Ms. Carpeneti
replied that is an attorney general policy currently in
federal law.
Co-Chair Therriault commented that there had been criticism
that the Department of Law was remiss in addressing the two
above-mentioned cases. He questioned why the State had not
undertaken the case first, and then the State could have
prosecuted and the federal government could have made their
decision after. He questioned the "motivator" for the
legislation. Ms. Carpeneti offered to provide more
information to the Committee regarding that concern.
Representative J. Davies questioned if the underlining
premise was correct in that, if the State "gets into the
case first", then the statutes would not take affect. Ms.
Carpeneti commented that the statutes state that the State
can not prosecute if a person has been convicted or
acquitted of charges. Representative J. Davies asked the
time cut off. Ms. Carpeneti replied that she did not know.
Co-Chair Mulder pointed out that these cases had compelling
State interest. He asked why the State had not prosecuted
these cases first before the federal government. Ms.
Carpeneti reiterated that she would provide that
information.
Representative Grussendorf added that the idea of having
criminal laws regarding these concerns, indicates to those
parties guilty that they can not do something for fear that
they will be criminally charged. He maintained that the
civil charge is only the cost of "doing business".
Representative Grussendorf emphasized that it would be in
the State's best interest to impose the criminal
repercussions.
HB 350 was HELD in Committee for further consideration.
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