Legislature(1999 - 2000)

03/23/2000 01:55 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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