Legislature(1993 - 1994)
03/07/1994 01:15 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
HB 334 - 99 YEAR PENALTY - 3RD SERIOUS FELONY OFFENDER Number 000 CHAIRMAN PORTER noted that in a prior meeting the committee had received an overview of HB 334 from its sponsor, REP. CON BUNDE, who was also present at this meeting of March 7, 1994. Chairman Porter invited Rep. Bunde to provide a summary of the overview as a basis to begin the meeting. Number 034 REP. CON BUNDE summarized by saying that HB 334, "requires a 99 year mandatory sentence for someone who is convicted of a Class A or unclassified felony, after having two previous convictions for previous felonies. There are some amendments that I think you have in your packets. Rather than deal with the unamended bill, it would be my suggestion, if you concur, that we amend the - have a Judiciary CS and then we'd be dealing with just that." CHAIRMAN PORTER checked to confirm that EDWARD McNALLY, BARB BRINK and BRANT McGEE were on the teleconference line and able to hear the meeting from Anchorage; each responded affirmatively. REP. BUNDE invited DEAN GUANELI and JERRY LUCKHAUPT, who drafted the amendments, to join him in presenting the amendments to HB 334. CHAIRMAN PORTER suggested that the first amendment, J.1, be designated Amendment 1. Number 119 JERRY LUCKHAUPT, Legislative Counsel for the Division of Legal Services, Legislative Affairs Agency, introduced himself and presented Amendment J.1. He said, "Amendment J.1 corrects a little problem which the Department of Law noticed in the draft. Currently we provide that for certain cases [indisc. -words drowned out by paper shuffling]. Three years ago when the legislature adopted the 99 year mandatory prison term for certain first degree murders - for example, murders of cops, torture murders, things like that - there was some concern that that mandatory 99 year prison sentence provision could be read as to exclude the court imposing consecutive sentences for other crimes that were being tried at the same time or maybe imposed at the same time. And so, the legislature, three years ago, put in the last sentence that you see in this amendment, saying that nothing in AS 12.55.125(a), which is the 99 year prison sentence term, limits the court's ability to impose consecutive sentences. All we're doing is expanding that provision to cover this situation. We're imposing 99 year mandatory sentences." MR. LUCKHAUPT termed the amendment a technical and not very controversial document clarifying the law and preventing some litigation from occurring in the future regarding whether or not other sentences could be imposed consecutively. CHAIRMAN PORTER asked for the draft number under review. MR. LUCKHAUPT replied, "We're working from the CS ____, that's dated 2/26/94." CHAIRMAN PORTER and committee members confirmed the position of the text under discussion. Number 179 REP. KOTT moved Amendment 1. There being no further discussion or objection, Amendment 1 was adopted by the committee. Number 186 MR. LUCKHAUPT presented Amendment J.2. He said, "Amendment J.2 is a housekeeping measure. In an earlier draft of this bill there was some concern that we might need to specify that we aren't interfering with the governor's pardon power. This language goes into a provision that says that these 99 year prison sentences that someone receives under the section may not be reduced, may not otherwise be reduced. There was concern at one point that we need to specify that we aren't interfering with the governor's pardon power, and that's what this provision says, 33.20.070. "The governor's pardon power derives under the constitution and I see no reason why we need this section in there. We also have removed the sections where we were limiting - well, we were requiring the governor to notify the legislature; that was in an earlier draft in this bill, whenever he might grant a pardon or commutation of sentence for one of these people that received a 99 year mandatory sentence. We've removed those provisions from the bill. I see no reason to keep this language in the bill. There's no reason why we need to say that, we hadn't said that, in other situations, where the legislature has provided that sentences may not be reduced. There's no reason to make a special occasion here and cause some ambiguity." MR. LUCKHAUPT further characterized Amendment 2 as a "purely drafting style type amendment." REP. JAMES moved Amendment 2. CHAIRMAN PORTER added that he agreed with Mr. Luckhaupt, "especially hearing the idea that we have not had this provision in other laws where we have set mandatory sentencing and extended terms. While this language may not serve a disservice to this statute, having it here might serve a disservice to other statutes where it is not included - having it pointed out here - so, I would support Amendment 2." There being no other discussion or objection, Amendment 2 was adopted by the committee. Number 240 MR. LUCKHAUPT reviewed Amendment 3. He said, "Amendment J.3 is an amendment that seeks to equalize the treatment of offenders, of murderers, that receive mandatory 99 year prison sentences under current law, with habitual criminals that will receive a 99 year mandatory sentence of imprisonment under this law. It does two things: (1) it takes away the `good time' that murderers who receive a mandatory 99 year sentence of imprisonment receive. Currently, someone that receives a mandatory 99 year term of imprisonment for murder is able to earn `good time;' basically, one-third of their sentence can be cut off, so that a mandatory 99 year sentence of imprisonment for a murderer comes out to a 66 year sentence. "Under this draft, the people receiving the mandatory 99 year terms of imprisonment as habitual criminals are not eligible for `good time.' So, it doesn't seem to make a whole lot of sense to allow `good time' for murderers who receive 99 year sentences and not in this case. So, this amendment takes away `good time' availability for those people sentenced to a mandatory term of imprisonment for 99 years for murder, just like we do for habitual criminals, from the date that this law would take effect. "But also, with that sort of club, so to speak, we're also providing a little bit of mercy at the same time, in that, murderers that are sentenced to a mandatory term of 99 years currently have the ability to file for a motion for sentence reduction with the court after they serve half their sentence, and have their sentence reduced at that time. The court would take into account the circumstances. "I believe one of the reasons the legislature did that three years ago for these murderers was that after the murderer has served 49-1/2 years, he may be rather old, and the costs to the state start going up if the murderer is somewhere in his 60's or 70's - and the person may not be the same danger to society as they once were. We're adding that provision onto this bill, that these habitual criminals that receive a mandatory 99 year sentence would be eligible to go to court, just like the murderers who receive a mandatory 99 year sentence, after they serve half their sentence, which would be 49-1/2 years, and ask the court for a sentence reduction at that time. "This amendment amends, in our view, Alaska Rule of Criminal Procedure 35, so it would take a two-thirds vote to pass. So, the first part of the amendment deals with the amendments to the title, and under decisions of the Alaska Supreme Court, we have to flag those court rule changes in the title of the bill and provide a special section explaining what we're attempting to do. All we're doing is equalizing the procedure in this amendment as to `good time' between these two classes of offenders who receive mandatory 99 year sentences, and their ability to seek a sentence reduction after they serve half their sentences." Number 318 REP. KOTT moved Amendment 3. Number 321 CHAIRMAN PORTER said, "If we are taking away, with one hand... the `good time' credits that would have accrued, but giving the ability for a review when half the sentence is [complete], that's in effect what exists now for the 99 year murder situation." MR. LUCKHAUPT replied, "Not exactly. Under the current situation with murderers and cop killers who receive a mandatory 99 year sentence, they are eligible for `good time.' They are also eligible after they serve one-half of their sentence without calculating `good time,' so that's 49-1/2 years they are eligible to ask the court for sentence reduction. The habitual criminal bill, HB 334, wants to take away `good time' for these people who receive these mandatory 99 year sentences, and so..." CHAIRMAN PORTER said, "And that's requiring the court rule change..." MR. LUCKHAUPT stated, "Right. And so, we're balancing out what the bill is attempting to do with current law dealing with the earning of `good time' for murderers who receive mandatory 99 year sentences, and taking the benefit of current law that goes to murderers and being able to seek a sentence reduction and applying that to the bill." Number 353 REP. PHILLIPS commented, "I need this clarified. If a person serves time, and gets off time early for `good time,' they have to still serve 66 years? Or two-thirds of the sentence?" Number 357 MR. LUCKHAUPT explained, "Under current law, dealing with those individuals that receive a mandatory 99 year sentence for certain types of murder, they are eligible for `good time.' The `good time' amounts to one-third of their sentence, and the way the Department of Corrections calculates that, they just take it right off the top. So the person would be serving a term of imprisonment of 66 years, the way I understand it." REP. PHILLIPS stated, "Then why don't we do away with the half time thing and just leave them all at 66 years? That's when it will really have sunk in their heads that they have done something wrong." Number 369 REP. BUNDE responded that this was an attempt to address both a humanitarian and a fiscal problem. He noted the example of a person convicted at the age of 30; by the time he is 75 the cost of keeping him in prison is greater and at the same time he is unlikely to be physically capable of posing the same danger to society that he had previously posed. REP. PHILLIPS [?] said, "That's an assumption." Number 379 CHAIRMAN PORTER stated, "To respond to your question, some of the people that I could see being convicted under this - which used to be the old habitual criminal - may want to be reviewed half way through to see whether it would be appropriate to let them out. Others may want to be reviewed, but no way would I or anybody else in their right mind recommend that they should get out, as opposed to `good time' which is out." MR. LUCKHAUPT commented, "That is exactly correct. The court, in considering a motion for sentence reduction, could always decide not to grant it, or could reduce the sentence by 20 years, or something, and still make the person serve an additional ten or 15 years. The court does not have to immediately let the person out. It's not an all or nothing shot, there. But the court has the authority under Rule 35 to consider any reduction in sentence." Number 399 REP. NORDLUND said, "I'm just wondering, as a matter of policy, when we eliminate `good time,' what kind of effect that will have on the Department of Corrections? Will that make it more difficult to manage prisoners, if there is no incentive for them to be good? I assume that's the reason for `good time.'" REP. BUNDE responded, "`Good time, as you pointed out, is automatic out. The review for sentence reduction reviews your performance while you've been in jail. It still gives the carrot to behave yourself but it isn't an automatic out." CHAIRMAN PORTER invited DIANE SCHENKER of the Department of Corrections to comment. Number 407 DIANE SCHENKER stated, "I am Diane Schenker from the Department of Corrections. The department believes, having guessed that the average life span of an adult male is going to be 73-1/2 years, and given the age that offenders are going to come in for these offenses, that a 66 or a 50 year term is not going to be a great motive for anyone to behave particularly in and of itself, whether they are going to be reviewed with what is probably a fairly remote possibility of a sentence reduction or whether they are going to have 33 years lopped off that they probably wouldn't have lived to serve anyway, it's our position that they basically are going to be in for life; and while that does create some management problems, as we do have people serving those kinds of sentences now, 300 and 400 year sentences, as long as we have something to hang over a prisoner's head, we can manage the prisoner. "When people see in our budget that we've got GED or work programs at Spring Creek where a lot of people are doing life sentences, sometimes they wonder why we would waste those kinds of resources, because the person is never going to get out - but, if you give the prisoner something to do that you can take away, sometimes you can get some much more cost effective control over an inmate than just using brute force. "We would really like to emphasize that with this kind of sentence we probably need those programs more than ever, and that's not part of our fiscal note, because it really isn't an issue in the bill, but that's how we try to control... [In terms of] the `good time' as opposed to the sentence reduction, the department doesn't have a strong position that either one of them would be of particularly more motivation than the other." Number 454 There being no further discussion or objection, Amendment 3 was adopted by the committee. Number 457 MR. LUCKHAUPT discussed Amendment 4. He said, "Amendment J.4 recognizes the conspiracy bill that was recently signed by Governor Hickel... we have to start including it in the drafting of bills now that we know that it is going to take effect at some definite time in the future." He explained how the amendment integrates conspiracy crimes into the same category of sentencing law as presently obtains with serious inchoate crimes. Mr. Luckhaupt defined inchoate in this context as `a term that deals with a crime that can be completed without the ultimate crime actually being completed." Thus, the bill puts conspiracy on the same level as attempt and solicitation. Number 491 REP. KOTT moved Amendment 4. There being no further discussion or objection, Amendment 4 was adopted by the committee. The meeting continued with testimony from BRANT McGEE. Number 504 BRANT McGEE, Office of Public Advocacy, Department of Administration, testified in opposition to HB 334 via offnet from Anchorage. [Teleconferenced testimony sometimes difficult to hear clearly.] "I have a few brief comments I'd like to address to HB 334. The first is that I ask that the legislature recognize that this bill represents a radical departure from previous legislative thinking with respect to particular crimes. Let me give you just two examples: "The legislature has previously determined the maximum term for a Class A felony to be 20 years. Under certain circumstances Class A felonies under this bill will be a mandatory 99 years, some five-fold increase in the severity of the sanction imposed by law for the same crime. My second example that it punishes unintentional crime with life without parole. To give you some examples: if someone had a prior felony record, including a B felony as listed in the current version of the bill, and then he was charged with a vehicular manslaughter or a vehicular second degree murder, and was convicted, they would receive a mandatory 99 years no possibility of parole. For vehicular homicide. Homicide is currently punished at approximately one-fifth that severity. I would again ask that you take a careful look at the kinds of crimes you are now classifying as worthy of lifetime incarceration. "The second thing I would ask you to look at is whether or not the current presumptive sentencing scheme as it relates to Class A or unclassified offenders has failed. I think that you have to make that conclusion in order to pass that bill. For example, I would want to know [indisc.] what percentage of those unclassified, Class A offenders re- offend upon release from their term, what is the nature of the re-offense, what is the recidivism rate for released murderers who have two prior serious felonies, prior to their sentencing for homicide. "The reasons I think the answers to those questions are critical to a decision on this matter is that you are proposing to spend vast sums of money, that is, to commit your children and grandchildren to spend vast sums of money, to incarcerate individuals. I think in order to do that you have to conclude the current sanctions available under the law for unclassified and Class A offenders, are inadequate. "I've been around a presumptive sentencing law for 14 years now, and I have never yet heard a prosecutor or, frankly, anyone else, complain, about the length of the sentences available to the judge upon sentencing third offenders. The presumptive terms for those are 15 years for a Class A felony; 25 years for an unclassified felony. Those are merely the presumptive terms. What they don't include are the strong chance of aggravating sanctions made available for sentencing, or consecutive sentencing for other crimes committed during the same course of conduct. Consecutive sentencing is common for people who commit serious felonies during the same course of conduct. "In other words, I think that before you take this fiscal bite, and make your fiscal commitment, you need to have some evidence that what we're doing now with serious repeat felony offenders, is inadequate. I've yet to hear the evidence. Thank you very much." Number 570 REP. BUNDE said, "Just a comment. One, this bill does include latitude for prosecutorial discretion, so that these inadvertent crimes that we're talking about - the example of the vehicular homicide - wouldn't necessarily be tried under this statute. And, as was pointed out, a third serious felony would be a 15 year minimum sentence. Take off one- third for `good time,' and now we begin to see the revolving door." Number 582 BARB BRINK, Public Defender Agency, Department of Administration, presented testimony in opposition to HB 334 via teleconference from Anchorage. She challenged the factual premise of HB 334 and posited an outcome which could include: (a) disparities and unjust severity in sentencing; (b) oppressive costs to the state of Alaska; (c) disincentives for positive behavior among incarcerated offenders; (d) coercive prosecution; and (e) loss of civil rights for Alaska citizens. Ms. Brink described the beneficial effects of presumptive sentencing now in force and outlined the significant length of sentences without parole already in existence for third offenders of Class A and unclassified felonies. MS. BRINK stated, "We seem to be operating under the factual premise that somehow dangerous people are getting out of jail too soon, and this is the problem we need to address. I dispute that premise." She continued, "I have not heard any evidence to support that claim. Before we take all of these steps to change radically the system that was carefully devised to improve uniformity in sentencing and to eliminate unjust severity, I think we should have hard proof that the system that we have in order is not working. My experience as a public defender for almost 12 years is that the system is indeed working." Regarding presumptive sentencing, MS. BRINK noted, "No unclassified or Class A felon that's a third offender who gets 25 or 15 years is eligible for parole. We have truth in sentencing for this state, and the sentences are already extreme." MS. BRINK discussed the costs attendant to implementing the legislation. She said, "Current figures project approximately $41,000 a year on the prisoner. If we are going to add 15-30 prisoners a year, and add jail time sentences for the rest of their lives, it will be an incredible cost, and we must ask, what is our goal here? Are there people who are getting out too early? There are not. There are also going to be increased litigation costs, particularly in my agency, the Public Defender Agency, and the prosecutor. Cases charged under this section in which the prosecutor exercises his discretion are much more likely to result in trial; you are now taking cases and giving them the most onerous penalty available in the state. There will be increased investigation, increased motion practice, we are much less likely to reach a resolution on these cases which will result in more jury trials. That will be an added burden on the system that we cannot ignore. There will also be increased collateral effect...." MS. BRINK emphasized that competent representation of alleged third time offenders would now require a tremendous increase in time and costs, which would be further increased and complicated if any prior convictions had occurred out- of-state; out-of-state records and court decisions would need to be thoroughly reviewed by Alaska courts. MS. BRINK also addressed the negative impact of removing "good time" incentives for good behavior in prison. She said, "I would disagree that `good time,' or the idea of having a sentence review in 15 years, has the same impact on a prisoner..." She noted that immediate sanctions "are a much more effective tool to encourage positive behavior than telling somebody, well, behave yourself for 49 years, and then, maybe, the judge might cut you some slack." MS. BRINK praised Alaska's current sentencing scheme for habitual offenders which had been instituted by past legislation attempting to redress disparities in sentencing. She stated, "Alaska has some experience with an habitual offender law. In fact, we know from Judicial Council studies that Alaska's sentencing system previously was full of disparities, full of injustice. That was why the legislature took out on the task of imposing the presumptive sentencing scheme. The goal was uniformity in sentencing. The goal was to reduce disparity.... We will once again lose that uniformity and that fairness that we tried so hard to achieve with presumptive sentencing." She reiterated, "I have heard no heard no evidence that the presumptive sentencing scheme is not working." MS. BRINK warned of potential loss of civil liberties, including the right to a fair hearing, for citizens of Alaska. She said, "I object very strongly to any kind of bill that gives a prosecutor a coercive tool to try to force people into giving up their rights." She cautioned that possession of such a coercive tool, the specter of 99 year prison terms without parole, could engender unethical practices among prosecutors in the absence of substantial evidence. Ms. Brink concluded by urging opposition to HB 334. Number 687 EDWARD E. McNALLY, Acting Deputy Attorney, Criminal Division, Department of Law, testified via offnet in support of HB 334. Mr. McNally championed the bill as being, primarily, an appropriate response to the "changing criterion of community condemnation" and to the public's perception of what is required for justice to be achieved. He espoused the bill secondarily as an effective public safety measure with little or no inherent risk of abusive applications. Mr. McNally asserted that the bill avoided pitfalls of other anti-crime legislation by maintaining an integrity of purpose while retaining the flexibility of, for example, prosecutorial discretion, thus protecting citizens from the "Washington State... kind of mechanical, almost mathematical machine that simply grinds up defendants who meet the right boxes on chart." MR. McNALLY remarked, "I think that the Department of Law is very grateful, and the Criminal Division is particularly grateful, to the sponsor who has worked closely with us in trying to hammer out a three-strikes bill that is unique to Alaska, that works with Alaska's, not only its legislative statutes but also its practices in this state." MR. McNALLY responded to the concerns of Mr. McGee and Ms. Brink and asserted that the bill was not a departure from previous legislative efforts, but rather was "...a natural extension of the progress the legislature has recently made in addressing just sentences for the crimes that Alaskans are rightfully most concerned about. We've heard some of the others who have testified characterize why presumptive sentencing came about. I know that there are participants in today's hearing who were practicing when presumptive sentencing came about, or who were part of the legislature. My understanding has been that, frankly put, many in the legislature and many of the citizenry were dismayed with the sentences that were being handed down by the courts - not only with the severity issues that Ms. Brink raised, but also the simple fact that the sentences were not severe enough to address the issue of justice." MR. McNALLY cited the case of CHICO RODRIGUEZ, who was convicted of sexual offenses against 11 Alaska children, as an example of sentencing under current law which may be calamitous for victims. Mr. McNally described the evolution of Mr. Rodriguez's sentence reduction: "This is a man who was convicted of child sexual molestation... ultimately he was convicted of offenses against 11 Alaska children. He was sentenced initially to 133 years, then it was reduced to 83 years, then it was reduced to 48 years; most recently, it was reduced to 24 years, and we'll be having the man who was convicted in 1983, where his victims believed he would be in jail potentially for the rest of their lives - now they learn that he may be released on mandatory parole in as little as four years from now." MR. McNALLY did note, however, that the three-strikes law would not have applied in the Rodriguez case because the offender was prosecuted for all of the offenses at the same time. Number 750 MR. McNALLY analyzed and praised prosecutorial discretion and noted that, given its potential to protect defendants from machine-like sentencing, it is also spoken of favorably in the defense realm on many occasions MR. McNALLY remarked, "I'd also like to respond to Mr. McGee's sense that the focus of these hearings ought to be whether there is evidence of recidivism and whether people have re-offended after the release...." He explained that the issue of public safety was not the sole occasion for HB 334, saying, "The reason for this legislation is also for justice. And when I refer to justice in this context, I'm talking about the changing criterion of community condemnation." Noting that the results of a referendum in Washington - the state closest to Alaska - had shown that "76% of the men and women who voted... believed that community condemnation means `three strikes and you're out,'" MR. McNALLY stated that "there's no indication in many conversations with both sponsors and citizenry... that their focus is on simply public safety. The primary focus appears in fact to be justice.' MR. McNALLY agreed substantial legal work was involved in "any sentencing that involves such high stakes, and on behalf of the prosecution I would say, simply, we welcome that litigation. We already litigate aggressively and extensively, sentences in capital-type cases, in murder cases, and other serious cases... all of those sentences are appealed already, and I guess, the real point is, sentencing litigation is pretty extensive as it is now." MR. McNALLY refuted the suggestion that prosecutorial discretion could become "a tool to reach resolution where perhaps the prosecution doesn't have sufficient evidence." Emphasizing this point, he said again that prosecutorial discretion would not become "a tool in order to allow us to browbeat out sentences in cases where the evidence doesn't convict, on merit, a conviction. Our standard of proof is proof beyond a reasonable doubt." Number 806 REP. DAVIDSON said, "Mr. McNally, the approach of which you speak, it seems to me, is a jam! slam! bam! approach to filling up the correctional pipeline. You've picked out a couple of almost hideous examples it seems, but should we pass this legislation on the basis of one or two - are they exceptional, unique - examples? I'm not sure. My question is, it sounds like your part of the task of getting people who are dangerous to society behind bars or away from people who don't want to be around people like that, is laudatory. "However, it seems to me that there are other parts to the puzzle here. One is, of course, what do you see the result of the budgets necessary to pass this kind of legislation? We know that we're already facing increased prison populations, and when you take away the flexibility or the discretion of the judge, or in this instance the prosecutor, where would you be if in fact you were sitting in a different seat in the process? "Secondly, could you give us the numbers that people keep saying that there simply is no evidence to indicate that the problem is as great as this bill would address?" Number 833 MR. McNALLY responded that he had heard that approximately 6 to 12 Alaskans per year might be involved, but he could not confirm this figure and asked for clarification or correction from a member of the Department of Corrections. Number 855 MS. SCHENKER of the Department of Corrections referred committee members to the fiscal note submitted by her department. She explained the complications of the different formulae employed by Corrections in arriving at numbers of prisoners to be impacted by HB 334. The approximate number of Class B felony offenders appeared to be 10. However, the figure for all felons was higher. Applying the extensive formulae involved, Ms. Schenker concluded, "We estimate a total of, in the first version of the bill, 162,000 prisoner days, which would actually be 445 prisoners, eventually, over the course of 46 years." MS. SCHENKER said that rough recalculations had been done for the second version of the bill, but they did take into account the effect of the amendments discussed on this date. She analyzed further the formulae of the fiscal note. TAPE 94-33, SIDE B Number 000 MS. SCHENKER said, "Without the Class B felonies it will be zero. The only other thing I could add is that, with the addition of prosecutorial discretion, the intent is probably to help reduce some of the cost. It does make it very difficult for our department to estimate the cost. And, in fact, it can make the cost more immediate, because if the effect of the prosecutorial discretion is to use this as a tool in plea bargaining, then, rather than waiting for 20 year sentences to turn into 45 year sentences, we may have a higher increase in less than Class A and unclassified felonies; in other words, when someone commits a most serious felony, if the prosecutorial discretion is used to bargain that down to a lower felony that doesn't fall under this sentencing scheme, then we may see an increase in those bargained down felonies in an immediate sense. In other words, they would have gone to trial, but if you, when plea bargaining occurs, what happens to our population is, we might get more people with shorter lengths of time. That makes it a more immediate impact. We have no way to predict, because - even if anyone could predict it, policies change in the prosecutor's office and we can't ever be assured of what would happen in the future as far as how that works." Number 048 CHAIRMAN PORTER stated, "Let me suggest one other one that might, at a minimum, offset that, if not make some more. If you had somebody who was sentenced to the 46 rather than the 20, considering the 85% recidivism rate of people at that level of criminal experience, you'd probably save yourself some that you were projecting anyway, because he's still there." MS. SCHENKER responded, "Correct. Also, again, at that higher age group, all of our numbers used are standard cost per day, which means that the overhead for medical cost is just the average medical, but, right now, less than 1 percent of our prison population is over the age of 65. And, obviously, in a very long time, but in an inevitable long period of time, a much larger percent will be over that age. Also, some experience from other states suggests that if it's up to the inmate to ask for the sentence reduction, a person who has been institutionalized for 30 or 40 years, and who is experiencing some medical problems, may or may not want to be asking for that sentence reduction because the person may or may not feel, whether it's a correct perception or not, that they'll receive the kind of institutionalized care that they need at that point. So that's another concern. Number 086 REP. JAMES stated, "I'm surprised at the small number of people that would fall into this category. I thought there would be more than that. I am amazed. I suppose that every time that you have someone doing a real serious crime out there, and you put them away, then you know they're not going to do that again, so there's going to be maybe - maybe - some reduction in the crime that happens out there. But I really am amazed that the number is so small of the people that fall into this category." Number 104 MS. SCHENKER said, "We asked for help from the Judicial Council and we actually did a file review ourselves, and actually we were a little surprised [indisc.]. [There was a] much, much higher number of repeat felons, but when you isolate it down to the specific violent felonies that the sponsor included in the bill, it really does go down to quite low [numbers]." Number 113 REP. JAMES commented, "From my perception of being out there in the general public, and what you hear, and what you read in the paper, and so forth, my perception is there would be more of these people. Is it possible that the reason that there aren't any more of them is because some of them have already plea bargained down, and so they're being incarcerated for a lesser crime than they really were guilty of?" MS. SCHENKER said, "It's entirely possible. Again, any effect of plea bargaining is unmeasurable by our department because there's no way to get that information from any data that's available to us without individual file reviews that we would have to get from the Department of Law, so we have no way of knowing that. I'm sorry." Number 133 REP. NORDLUND stated, "I guess I agree with Rep. James that maybe there aren't that many people that this applies to, that maybe there's this public perception that is somewhat mistaken that people after they've committed a couple of serious felonies can commit a third and still not serve significant time, and that maybe this bill is attempting to solve a problem that doesn't really exist. But I have a question, or a request for Diane and the Department of Correction; I'd be curious to see what the nature of the crimes have been of the people who this would apply to. What was the first, second and third felony that they committed? In other words, to take real life examples, as opposed to sensational examples, that Mr. McNally used, that actually wouldn't even apply under this bill." [UNIDENTIFIED VOICE] stated, "Those are pretty real life, though. You can't separate real life from..." REP. NORDLUND said, "Okay, that was an improper use of terms. Not real life examples, but, more average examples, let me put it that way, of the kinds of series of crimes of which somebody would come in under this. I am very sympathetic to the public's concern that there perhaps are people who have committed a third felony who are still out there continuing to commit those crimes, and I am very concerned that the public safety is being compromised in those situations. But it's not hard to imagine a certain series of crimes here in which, [after] the third commission, you would not want to have that person put away for 99 years. I look at manslaughter and assault and escape - there might be circumstances in those particular situations in which you would not want to have somebody have a 99 year sentence imposed upon them. I would like to come up with, maybe, some examples where we wouldn't want to impose a 99 year sentence." Mr. McNally used an extreme example. Number 185 MS. SCHENKER stated, "I can't respond completely. I will say that one of the problems we had in compiling this data and one of the caveats I should make is that confusion as to concurrent convictions makes this data a little more inaccurate. If the first two felonies could be taken from one event, and the third has to be after that conviction as a later felony, it is not possible for us, the way that we get our data off our computer, to really isolate those double convictions. And so we may not have picked some of those up; in fact, we probably did not, and I am not sure that we will be able to. "In answer to your question, the only way that we can answer your question is to actually pull individual files and read them, and we just don't have the staff resources to do that. We did ten files, which is a very small, unscientific sample, for this -- fortunately, when we did the ten individual files it backed up what we'd kind of guessed from the data." CHAIRMAN PORTER stated, "This requires that two or more convictions out of the same event would not be considered, is that not correct?" Number 222 MS. SCHENKER asked, "In any of the three strikes?" CHAIRMAN PORTER said, "That's right." MS. SCHENKER responded and continued, "Okay. And the other point that we did notice is that a lot of people -- one of the reasons the number might be smaller than some people imagine is that since the bill addresses very serious felonies in the first place, they got long sentences, then they did have a period of mandatory supervision, the SGT `good time' that we talked about, plus possibly any probation. And so, when those people re-offend, it's much likelier that they are back in on a probation or parole violation, which does not, at least in our analysis, count as one of the three subsequent strikes, even though in fact it's not uncommon for a parole violation to be another felony. But it's easier to violate someone's parole than to retry them for that felony, so, they may already have been returned for a significant period of time. You could have got years and years of probation violations, and that could still only be their second. So, I think, what we found of the few files we were able to review, was that sex offenders and drug crimes were the likelier to be repeated. You didn't very often get somebody doing two different murders or certainly manslaughters on different occasions." [UNIDENTIFIED VOICE] said, "I can think of one or two..." MS. SCHENKER responded, "It can happen, but it's so rare, whereas the examples that we did find did involve sex offenses or drug crimes. And most of the felons we found had thefts and misdemeanors and other crimes, that are not addressed in the bill, on their priors." Number 213 CHAIRMAN PORTER, noting that no one else was scheduled to testify, asked for the wish for the committee. REP. BUNDE asked to do a brief wrap-up. Number 261 REP. BUNDE advised the committee they would be receiving a more accurate and updated fiscal note reflecting changes. He went on to stress the disproportionate effect on society of the serious repeat felony offenders whose criminal acts constitute the focus of HB 334. Discussing the figure of five to ten people per year, REP. BUNDE urged the committee to remember that "...these five to ten people... commit an amazing amount of mayhem and make victims out of society, trap people in their fear; even if they are not the actual victims, they're victims of a fearful society. We've talked about money, and what it costs; what will it cost our kids if they are indeed victims of this admittedly minority, small group of people who are such fearful repeat offenders? "I don't have any sociological data. I just have anecdotal stories that we've all heard at these various crime meetings. The general public is very fearful of this small group of people, and they're asking for some action, and I certainly hope you give it to them." Number 287 REP. NORDLUND said, "Unfortunately, I was not here for the first hearing on this bill. I am a little torn on it right now. I do support it, in some ways, and in other ways I feel perhaps the net we are casting here is a little bit too broad, particularly in the inclusion of Class A felonies. I would like to have a little bit more time, just to feel more comfortable about the kinds of crimes here we're including. So, I would hope that we don't pass this out today." Number 200 REP. KOTT remarked, "I think we've heard quite a bit of testimony, and I, like the sponsor, at many of the crime summits, heard, anecdotally, that there are a number of problems out there, and really, we are dealing with a very small group of individuals, and I don't think the fiscal ramifications are going to be such that we won't be able to address it fiscally. So, I would be in favor of moving this bill. I don't think there are any constitutional consequences that we haven't already addressed. Therefore, I would move that we move the bill out of committee." Number 311 REP. DAVIDSON said, "Anecdotal basis for public policy may be fine in some respects, but when we're talking about fear - I can understand people's fear - but I think we need to examine this piece of legislation a little more carefully and try to understand what it is about that fear that these individuals are generating; and, in fact, does this [bill] address the fears of people?" REP. DAVIDSON stated that if "the people who are working most closely with these types of individuals... say the problem is certainly not as great as we may think, I don't want to be rushed into a public policy, because I don't think it's good public policy, then. I would be in favor of holding off a little bit longer until we've gotten, in fact, past the anecdotal basis for passing this legislation [before moving it] on to the next committee, and try to come up with a more realistic fiscal note, as well as the facts that would address the problem that we face a little more accurately." Number 343 REP. JAMES stated, "I will vote to move this out of committee today, but I would like to share some concerns that I have about the bill, and I have plenty of time to think about that between now and the time it gets on the floor." Rep. James expressed concern that the magnitude of the sentencing imposed by HB 334 would precipitate a rise in plea bargaining, "and a lot more people will be having a lesser charge, just to be able to not have to go trial." She lauded the bill, however, for its response to the wishes of the people, saying, "I think that it does meet the needs of what the people are asking for, because the people are very concerned about crime." REP. JAMES suggested again that the low statistical count of pertinent offenders might be due to plea bargaining. She cautioned, "I suspect that the things we read about in the paper may not correlate to the terms of penalty that are given. So I am a little bit concerned about that." REP. JAMES also questioned the utility of imposing "a penalty that they... can't even ask for parole, until after [their] average life span has gone by; [it] seems to me to be another thing -- that maybe we're going to be spending a lot of money to incarcerate someone who, for any number of good reasons, might have been able to have gotten released, maybe by a complete change of heart or some other kinds of things that could have happened to them." REP. JAMES concluded, "I have a little problem with the bill, but I am going to vote to move it out, because I think we've probably done everything to it that we can do at this point in time without including emotionalism." Number 380 CHAIRMAN PORTER stated that he too would be voting to move the bill out of committee. Chairman Porter expressed surprise that testimony heard by the committee had not included what he recognized as a significant feature of HB 334 - its deterrent effect. He said, "That is, the ability to use this severe penalty as a deterrent for younger offenders who, for whatever reason, have had one or two crimes, and can be taken aside and read this statute, and say, `Do you know how close you are to going away for life?' I have seen people redirect their life from just that realization." CHAIRMAN PORTER noted as well, "I have seen people redirect their location back to whence they came when they found out that that statute was on the books in Alaska." CHAIRMAN PORTER praised inclusion of prosecutorial discretion in the bill. He further commented that, "...the aggressive crimes have to be progressively more severe. You can't go backwards and then back into a 99 year sentence." Number 406 REP. DAVIDSON said, "I'd just like to add that if we continue to give people who have to make the final decisions on these individuals fewer options, less flexibility, less discretion, and we're going to give them fewer resources with which to do the job - so often we've seen the result of putting something in a pipeline here and, in a few years we, lo and behold, we get to see the result of our actions... It just seems to me that we could get maybe some more input from the judicial system. I would like to hear some more from those people on the front line, like yourself, as you used to be, as well as the public defenders who have been down into the nitty gritty of this problem. I just have this feeling that we can do better with this piece of legislation, so I would urge us to examine it a little more thoroughly and hear the people out who have the most experience in dealing with these kinds of problems, and then see if we can't make some changes that would more realistically address the problem." CHAIRMAN PORTER asked the committee for its wishes. REP. KOTT made a motion to move the bill out of committee. REP. DAVIDSON stated objection and a roll call vote was called. Reps. Nordlund and Davidson voted "No" and Reps. Phillips, Kott, James and Porter voted "Yeah." HB 334, as amended, with a fiscal note to be provided by the Department of Corrections, was therefore moved out of committee.
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