Legislature(1997 - 1998)
03/26/1997 01:18 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 131 - ADVISORY VOTE ON CAPITAL PUNISHMENT Number 092 CHAIRMAN GREEN announced the first order of business would be House Bill No. 131, "An Act providing for an advisory vote on the issue of capital punishment." He noted that public testimony had been closed; however, he would allow members of the public who were signed up to testify at the previous hearing to do so at this committee meeting. DAVID SEID, resident of Ketchikan, Alaska, asked that the committee not pass HB 131. It was his belief that the bill oversimplified the issue and that it was a legislative responsibility to decide what a crime was, and the proper penalty for a crime. Mr. Seid pointed out that legislators were elected by the people with the understanding that they would engage in a spirited and informed debate, and especially when dealing with a most important public policy issue, because it involved the issue of whether the government should place sanctions on the ultimate laws of liberty. MR. SEID pointed out that the merit that he believed the legislature needed to debate and consider, at the very least, was whether it was acceptable that the United States would be the only western democracy that had not condemned capital punishment. He noted that what the bill was asking for was government sanctioned intentional killing. MR. SEID asked if it was acceptable for the state to employ a system to kill people when the state already had other severe penalties in place that provided for life imprisonment, and one that was enforced in the most serious intentional killings. MR. SEID questioned whether it was acceptable to have the ultimate, irrevocable sanction, the taking of somebody's life, as a penalty when the state operates under a system of men and women, which he would say was inherently flawed because everyone is human, and what if the state executed an innocent person, which had happened in other states. Mr. Seid asked if the death penalty was an acceptable alternative to the severe punishments already in place when there were such amazing costs involved. He pointed out, for example, that in Florida and California, it cost six times more to execute someone than life in prison. Mr. Seid expressed that there had to be a lengthy appeal process because the penalty was irrevocable. MR. SEID asked that the committee consider the fiscal note provided by the Department of Law that was presented in 1992 which reflected their costs, alone, to be $21 million for the first four years. Mr. Seid advised members that the legislature must evaluate the issues prior to deciding on whether it was acceptable for the government sanction of killing individuals. Mr. Seid concluded by stating that he was against the death penalty in any form, and asked that members vote no. Number 340 CHAIRMAN GREEN asked if Larry Gondek was available to testify from Glennallen, Alaska. REPRESENTATIVE JERRY SANDERS expressed that he had Mr. Gondek's letter and would like to read it into the record. He noted that Mr. Gondek was not able to return to testify at the present hearing. REPRESENTATIVE SANDERS read, into the record, a statement prepared by Larry Gondek from Gakona, Alaska. "This is Representative Jerry Sanders, and this is from Larry Gondek, from Gakona, Alaska, and the subject is reimposition of the death penalty. He says; "I would like to thank the Judiciary Committee for this opportunity to testify on the reimposition of the death penalty for capital murder. The brutal slaying of Alaska State Trooper Bruce Heck cries out for the death penalty. The alleged assailant, Mr. Phillips, had an extensive police record. It is time for us to send a message to criminals. We, as a society, will not tolerate criminals barbaric behavior. We must have a deterrent that will be swift, sure and severe punishment for those who assault, batter or kill police officers. I do not know how to express the moral outrage and anger I feel. Juries should be given the opportunity to choose between the death penalty for capital murder, or life with no parole. Respectfully submitted for your consideration." REPRESENTATIVE SANDERS advised members he would provide a copy of Mr. Gondak's letter to the committee. CHAIRMAN GREEN moved on to take testimony via teleconference from Anchorage, Alaska. MARY GEDDES advised members she was a long time resident in Anchorage, Alaska that she owned a home and paid her property taxes like everyone else. Ms. Geddes stated that while on her way to work that morning, she encountered the usual kind of horrible walking conditions that currently existed in Anchorage. She advised members that reminded her of the last election that was held. Ms. Geddes explained that the last election held featured a question on the ballot as to whether or not the municipality of Anchorage should incur debt and construct additional ice rinks in the city. Ms. Geddes pointed out that she was thinking about how very different the results would have been if it had merely asked the question, "Should the city of Anchorage construct more rinks for recreational facilities." Ms. Geddes stated that she felt that everyone would have, unthinkingly, without too much consideration, approved the idea. MS. GEDDES explained that rather than the municipality presenting a very short and simple question, it put forth and outlined the extensive costs of constructing ice rinks. She stated that the voters, in considering the other stresses and strains on the municipal budget, decided that it could not support such a measure. MS. GEDDES stated that the consideration as to whether an ice rink should be built was a much less complex issue than the one being proposed. Ms. Geddes advised members that there was no way that the advisory vote question promoted education as to the various considerations the state would have to implement. She expressed that it did not advance intelligent discussion, and most of all, did not allow for any type of examination of the costs, stains and stresses the implementation of a death penalty would put on the state. MS. GEDDES noted that the committee had some information; however, wished to reiterate some headlines to the members. She noted that back in 1988 the cost in California for the implementation of the death penalty was in the order of $90 million a year; 1988 dollars. Ms. Geddes stated that California tax payers were spending some where in the order of $15 million per execution. Ms. Geddes pointed out that those costs would certainly be greater today, and as she understood, there was presently an estimate of over $30 million to implement the death penalty. Ms. Geddes asked that members not pass HB 131 as it did not promote intelligent debate. Number 714 BARBARA BRINK, Acting Public Defender, Office of the Public Defender Agency, Department of Administration, advised members she had been allowed to testify at the previous meeting; however, she would be available for questions and could also speak once again on the issue. CHAIRMAN GREEN thanked Ms. Brink for being available to respond to any questions, and asked if Mr. Brant McGee was available to provide testimony. BRANT MCGEE, Public Advocate, Office of Public Advocacy, Department of Administration, expressed that he would reiterate some of Ms. Geddes remarks regarding the cost of the death penalty. He advised members that the Office of Public Advocacy would be particularly hard hit by the cost of the extremely expensive cases that would result with the reinstatement of the death penalty in the state of Alaska. MR. MCGEE advised members that in 1992 a [Indisc.] study revealed that their death penalty cases cost $2.3 million a piece, and in 1988 Florida found that their death penalty cases cost $3.2 million each, and in 1982, a New York study, done in some detail, indicated a cost of $1.8 million each. Mr. McGee stated that in Texas and New York it was found that death penalty cases cost more than three times as much as it would have cost to keep the average defendant in prison for the remainder of his natural life. MR. MCGEE advised members that everything he had learned was that the cost of implementing the death penalty was at least several times the cost of incarceration for life, which was frankly counter intuitive, because most people assumed that it would be cheaper to kill people than it was to keep them in prison, especially at the high prison cost of nearly $40,000 a year per inmate in Alaska. MR. MCGEE pointed out that there was literally no evidence that he had been able to discover that killing people was cheaper than incarcerating them. He advised members that his concern, as was the concern expressed by Ms. Geddes, was that none of the cost information was provided in the ballot question. MR. MCGEE reminded the Chairman, and other members of the committee, that they would be having the present conversation across a table in Willow, Alaska, if the cost information had not been included on the ballot when Alaskans voted on whether or not to move the state capitol. Number 881 REPRESENTATIVE NORMAN ROKEBERG noted that Mr. McGee had indicated he had figures from other states, and asked if he could tell the committee what his estimate would be to handle the appeals of someone convicted of a capital crime in the state of Alaska. MR. MCGEE expressed that he could not provide an estimate; however, advised members that the average life span of a person convicted and given the death penalty in the rest of the country was 9.8 years. So basically, Mr. McGee declared that the state would spend tens of millions of dollars before executing the first Alaskan if the death penalty were reinstated. He pointed out that the fiscal note provided by his agency reflected what it would cost for dealing with just three cases per year. Mr. McGee explained that that was three new cases per year, but all the cases would accumulate over a 10 year period, so there would be 30 active cases within the Office of Public Advocacy prior to executing the first individual. Mr. McGee stated that beyond that, he would not be able to provide an estimate, or breakdown, in terms of how much it would cost to go through both the state and the federal appellate process. REPRESENTATIVE ROKEBERG asked Mr. McGee if the legislature capped the amount of legal fees available to those defendants, as well as the time frame for court proceedings, if that would pass constitutional muster. He also expressed that it was his understanding there were federal regulations, and perhaps federal law that had been implemented in the last two years, that might impact the appeals process. MR. MCGEE advised members that to the first question posed by Representative Rokeberg, he was fairly confident it would not pass constitutional muster. He stated that the U.S. Supreme Court had held that death was different, and that super due process would apply to death cases, which he expressed was a very short answer to a very complicated question. MR. MCGEE responded to Representative Rokeberg's second question in the affirmative. He explained that the federal government, Congress, had moved to limit the amount and type of Habeas Corpus relief available to state prisoners, which he felt would have a deciding impact on how much litigation would occur in the federal court after the state court procedure was completed. Mr. McGee advised members he was unable to estimate how much because the state of Alaska had no experience to point to in terms of the impact of the federal laws. He continued to state that his suspicion was that the courts would always be reluctant to short circuit the appellate process when a person's life was at stake. Mr. McGee advised members that the culture of the courts in America was never going to be hospitable to the notion that it would be necessary to rush to judgment in cases where the system was being asked to kill Americans. Number 1065 REPRESENTATIVE BRIAN PORTER pointed out that members of the committee had a document before them that purported to be a four year estimate of fiscal impact on the various agencies in the state. He noted that for the Public Defender's Office the figure was $11.5 million, and for the Office of Public Advocacy, $7.7 million. Representative Porter asked Mr. McGee if he would agree with those estimated costs. MR. MCGEE advised members that those figures would represent a correct estimate in his view. He wanted to caution the committee members, because those figures reflected an estimated amount related to 10 cases per year, and advised members that he, and the Public Defender went out of their way to be conservative in terms of the costs associated with potential cases. Mr. McGee thought that the initial cases would probably cost well in excess of what they had estimated on their fiscal notes. He expressed that they would have to remember that the initial cases would be far more heavily litigated than the 10th or 15th case. Mr. McGee advised members that the first couple of years would be quite intense; intense in terms of the expenditure of public dollars. Number 1150 REPRESENTATIVE ERIC CROFT advised members that he created a chart tallying up the fiscal notes, which were asterisk fiscal notes, that presented estimated costs if the death penalty was implemented. Representative Croft asked for an explanation as to whether the initial trial was more expensive in a capital case, or did the numbers more reflect the cost of the appellate process. MR. MCGEE expressed that Barbara Brink had indicated that she had some specific information in response to that question. Number 1178 BARBARA BRINK advised members she appreciated the question because she felt it was a popular misconception that what costs so much were the appeals. She thought that they should be very concerned about the additional cost of the trial because capital trials were very different from regular trials. Ms. Brink reiterated Mr. McGee's statement that it involved a super due process because of the extra care that must be taken occurred at the trial level, not the appellate level. She pointed out that it would be a great mistake to think that streamlining the appellate process would cut the costs. MS. BRINK continued to explain that every capital felony trial was bifurcated, which meant that two jury trials would take place; the first trial would determine the guilt or innocence of the person, and the second trial, also a jury trial, was necessary to determine whether or not aggravating factors existed, or whether or not mitigating factors existed that out weighed the aggravating factors in order to determine whether a sentence of death should be imposed. Ms. Brink advised members that the experience of the 38 states who have the death penalty, was that capital trials required far more defense services than a non-capital trial. MS. BRINK stated that in addition, the American Bar Association standards for justice provides that in every capital case there must be a minimum of two defense attorneys, and in fact, one of those defense attorneys must have had previous capital defense experience. Mr. Brink advised members that there were no such qualified attorneys in the state of Alaska, not having had the death penalty since Territorial days. Ms. Brink expressed that as stated by Mr. McGee, the state would incur incredible set-up costs because of the need to recruit outside, and hire lawyers who were qualified under basic legal standards to perform capital cases. MS. BRINK further explained that during the investigation of a capital case evidence had to be examined, experts would have to be retained, forensics would have to be accomplished, and it was estimated in the other states that motion practice in a capital case was five times more costly than a regular non-capital case. Ms. Brink additionally stated that the trial was incredibly time consuming, and it had been estimated that a simple capital trial could take anywhere from six months to two years, or even longer. MS. BRINK stated with respect to the sentencing phase, which was not really a sentence hearing, but a second jury trial where excessive investigation would have to be done that the ABA standards, once again, mandated a categorical investigation as to every phase of the individual's life from the day they were born. Ms. Brink pointed out that 240 witnesses were interviewed in a recent case in California; searched out, examined, took statements and testimony, 120 of those witnesses were called to testify at trial. Ms. Brink reiterated that it was not just the appellate process that would present excessive costs to the state, but that super due process was due at the trial level as well. Number 1330 REPRESENTATIVE CROFT pointed out that an individual who testified during the previous hearing expressed that on an appeal, evidence of actual innocence may not be allowed, and asked if that was really true. MR. MCGEE pointed out that members were talking to two lawyers, neither of which had litigated death cases. He stated that what he thought that witness was referring to was a Supreme Court ruling which essentially affirmed the disallowance by a lower court, of evidence of innocence being presented under then current law. Mr. McGee advised members that that was, frankly, a pretty spooky decision for people who practice criminal law because all had believed that, at a minimum, evidence of innocence would be allowed to be heard; maybe not ruled favorably upon, but at least allowed to be heard. Then the Supreme Court formed a decision that said, "No, that is not the case, we drew a hard and fast line in terms of the extent that one can go in Post Conviction relief, and we meant it." MR. MCGEE stated with respect to another question posed by Representative Croft, that he did have specific data from a Los Angeles County study that was done in 1992. He advised members that that data indicated there were four times as many motions filed in a capital murder trial, as opposed to a non-capital murder trial. Jury selection took six times as long, and the number of court days devoted to the trial was one month versus six and one half months. Mr. McGee pointed out that that was the most specific study he had seen yet, in terms of drawing distinctions between what could be referred to as a normal murder trial, as opposed to a capital case. Mr. McGee expressed that the name of the case to which the witness referred on Monday was Herrara v. Collins [Ph], which could be found at 506 ___; 113 Supreme Court 853; 122 L.Ed. 2d 203 (1993) cite. REPRESENTATIVE CROFT claimed then that if evidence of innocence was not presented in the first Habeas Corpus Petition filed, but evidence of innocence was found after that petition was filed, that it could not be allowed in a second Habeas Corpus Petition. MR. MCGEE advised members that was his understanding, although he explained that was through his reading of a newspaper analysis of the case, not a reading of the actual case. Number 1496 JAMES MCCOMAS advised members he was the President of Alaskans Against the Death Penalty, a volunteer organization with nearly 1000 members on its mailing lists, and thousands of organizational affiliate members. Mr. McComas expressed that at least five members of the House Judiciary Committee opposed the death penalty for various reasons, and had indicated they would vote against it if a substantive death bill were brought before the legislature. He noted that some members were having difficulty in voting against an advisory vote bill, on that issue. Mr. McComas advised members he would limit his discussion to six reasons why members should vote against the advisory vote bill, HB 131. MR. MCCOMAS stated that if the question was, "Why not an advisory vote?", the first answer would be that no one had demonstrated the need for, or benefit from, the death penalty in Alaska. He pointed out that it had been very interesting to listen to Representative Sanders, who did not offer one justification as to why the legislature should be considering an advisory vote on the reinstatement of the death penalty, rather than the important issues the legislature should be governing on. Mr. McComas stated that the only example Representative Sanders provided involved a baker who killed a number of people, and was serving a sentence of life without parole, who would probably like to escape, but had not. Mr. McComas advised members that so far, that was the strongest argument presented to the House Judiciary Committee as to why the question should be put to the voters. MR. MCCOMAS advised members that the real question was why should they be talking about the death penalty at all in a state that since statehood had never had the death penalty, and in a physical area, where for 100 years it had been experimented with and learned that it was unfair, arbitrary, racially discriminatory, and frankly, sickening. He noted that it had been found so sickening that the Marshals refused to carry out anymore executions in Juneau, Alaska after the hanging of Eugene LaMore, a man who may have been innocent. Mr. McComas pointed out that after that execution, the city of Juneau made arrangements to have any further killings done in the state of Washington. Mr. McComas stated that the first question was not, why not have an advisory vote, but provide one justification why there should be one. MR. MCCOMAS advised members that the second answer to the question was that the results of an advisory vote would simply be an expression of public misinformation. He stated that because of the lack of public interest in the issue, because of the inability of the sponsors, on either side of the legislature, to identify a single benefit, and because the death penalty had never been used in the state since statehood, the state really did not know anything about the death penalty. MR. MCCOMAS pointed out that two years ago, the Alaskans Against the Death Penalty conducted a poll through Jean Cracium and Associates of 650 Alaskans, statewide. He noted that, unfortunately, it was slanted towards Anchorage because it was easier to poll in Anchorage than it was to poll rural Alaska. Mr. McComas advised members that the public response, when asked which they believed cost more, the death penalty or life in prison without parole; 75 percent of the Alaskan response was that life in prison cost more. Mr. McComas pointed out that Representative Sanders had said that no one had proven to him that the death penalty cost more. He advised members there were 38 states that currently had the death penalty, and wondered which state could be named that claimed it had saved money by use of the death penalty. MR. MCCOMAS emphasized that every state had admitted that having the death penalty was extremely, extremely expensive, noting that some figures had arisen claiming $2.6 million to $15 million per execution, and not just because of the trial costs. Mr. McComas explained that what one would have to understand was that the effort to get a death sentence and execution was usually unsuccessful. He noted that by the time the trial on the merits of the case had taken place, and next the death sentencing trial, the state would have paid out all the costs of a capital case. Mr. McComas stated that if the person was found not guilty at the first stage, or not given the death penalty, those would all be wasted costs if one was a proponent of capital punishment. He added that even when given the death sentence it would not mean that person would be executed. Mr. McComas stressed that the national reversal rate in capital cases was 50 percent, which meant that half of the time the court sends the person back to go through that expensive process all over again, which was why the per execution, that actually took place, cost millions and millions of dollars. MR. MCCOMAS expressed that by totalling up the fiscal notes submitted on HB 131, they amounted to an estimate of $50 million, and he thanked Representative Croft's office for providing that informational data, which reflected only the first four years of state costs, with no executions yet having been accomplished, and probably none would be for the next six years after that. MR. MCCOMAS expressed that if the legislature were to ask the people if they thought there should be national health insurance guaranteed to every citizen of the state, regardless of race, creed, color or wealth, the answer would be yes. If the question were asked if the public felt their social security benefits should be guaranteed at the average of their four highest years, the answer would be yes. Mr. McComas pointed out that if the public was then asked if they were ready to pay for those things, they would realize the same experience as was found with the capital move, and the experience Ms. Geddes had on the ice rink move. Mr. McComas advised members if they really wanted to know what the public thought about the death penalty, put the real choice before them, and include in the question that the appropriate state departments had estimated a cost of at least $50 million for the first four years, with no executions until the 10th year; should we enact the death penalty? Mr. McComas stated that he would be happy to go to the bank on the results of that poll, adding that that was what it was all about; not, do you like the death penalty in the abstract, but are you willing to pay for it. MR. MCCOMAS advised members that the next question asked of those 650 people, was if a person was convicted in Alaska of first degree murder and sentenced to life, how long would they think the person would be in prison before being paroled or released back into society. Mr. McComas pointed out that 78 percent of Alaskans believed that a convicted, sentenced, first degree murderer would be back on the streets within 20 years. Mr. McComas noted that as members of the Judiciary Committee, they knew that no person convicted of first degree murder could possibly be back on the street in 20 years because there was a 20 year mandatory minimum sentence in this state. MR. MCCOMAS pointed out that the figures he and Mr. Guaneli had arrived at over the years in an attempt to figure out what the average sentences were, was that the average sentence for murder in the first degree in the state of Alaska was 80 to 90 years. He noted that even the sponsor of HB 131 admitted to committee members during the previous hearing that in the aggravated first degree murder cases, which would be the ones that were death eligible if the death penalty existed in the state, were getting a life sentence without parole. Mr. McComas stated that was either because they were convicted of so many counts that they receive the 300 or 400 year sentence, or because they get the 99 year sentence and Alaska Judges restrict their parole eligibility to make sure they die in prison. He expressed that that was another reason why the advisory vote would present a mandate that was really meaningless because they would getting votes from 80 percent of the voters who thought murderers would be wandering around in 20 years, when the truth was, they would never get out of prison at all. Mr. McComas expressed that committee members could learn, and know that by studying the facts, but it was not known to the general public. MR. MCCOMAS expressed that the second answer to the question, why not an advisory, was that all they would get was a measure of public misinformation. MR. MCCOMAS stated that answer number three to that question was that it was the legislature's responsibility to stop bad public policy. He stated that if the state wanted to run government on the basis of 30 minute sound bites, and get together once in the evening on the internet, all half a million residents, he guessed that could be done. Mr. McComas pointed out that the state of Alaska had a representative form of government because the people did not have the time and opportunity to study the issues. Mr. McComas advised members that he would predict, that in almost all cases, when an issue was studied and a conclusion reached based on good public policy and conscience, that they would not lose the voters needed, as a political matter, in order to continue in the positions a legislator holds. MR. MCCOMAS pointed out that if the state wished to change its form of government, he had a list that members might wish to consider, such as an advisory vote on tort reform, the tobacco tax, subsistence issues, Indian Country. He noted that members would more than likely respond to that by saying; "those issues are all so complicated, take tort reform, sure, everyone wants tort reform, but they don't understand that this is the whole balance of fairness in the civil justice system." Mr. McComas advised members that it was the same with the death penalty. MR. MCCOMAS expressed that he was thinking the previous night that if Coretta [Ph] Scott King could say "no" to the death penalty for the assassination of her husband, he felt legislative members could vote "no" on an advisory vote they knew would be based on a misinformed public. CHAIRMAN GREEN asked that Mr. McComas expedite the remainder of his testimony. MR. MCCOMAS advised members he was doing the best he could; however, wished to point out that he had studied the issue a lot and was attempting to help the committee. MR. MCCOMAS referenced South Africa and stated that if there ever was a country where a governmental death penalty was justified, it was in post-apartheid South Africa. He noted that people were maimed for political reasons and killed for political reasons; however, Mr. McComas pointed out that they were holding courts of reconciliation, and were pardoning the people that maimed and killed. He felt if South Africa could do that, that members should be able to vote "no" on the advisory vote proposed in HB 131. MR. MCCOMAS continued with reason number four, advising members that an advisory poll meant politics, not policy, would decide the death penalty issue. He stated that if the question were asked as presently worded, there would be a 75 percent to 80 percent approval rating from the public. Mr. McComas pointed out that there had been a 75 percent to 80 percent approval rating from the public in every death and non-death state in which that unfair question had been posed. He expressed that it was obvious why that would be the result, because people would be thinking that they were saving money and making the streets safer, when neither one results from the death penalty. MR. MCCOMAS stated that then the question for those members who opposed the death penalty was; "When I'm faced with a 75 percent, or 80 percent public mandate, will I still be able to vote against the death penalty, or will I decide this is just one issue where the people had been heard." Mr. McComas felt that members of the House Judiciary Committee who opposed the death penalty would vote against it, irrespective of whether or not there was a popularity vote on the issue or not. He stated that he was far from convinced that the legislature, as a whole, would be able to resist, and in particular in a year when a gubernatorial race would be taking place. Mr. McComas stated that his position was that members should be a little bit brave today, instead of setting themselves up for trying to explain their opposition to the death penalty in the face of an 80 percent purported mandate. MR. MCCOMAS pointed out that reason number five was that an advisory vote would not change the facts. That, however popular the death penalty was, it would still be three to six times more expensive than life without parole, and would still have no affect on crime. Mr. McComas explained that not only was there no proven deterrent affect of the death penalty, but studies had begun to suggest, with increasing consistency, that the violence of the death penalty actually insights violence in the community. Murder rates become higher in capital systems where retribution was the rhetoric on the street, than in non-capital states. MR. MCCOMAS advised members that no matter how popular, the death penalty would still be applied on the basis of the race of the accused, and the race of the victim. He noted that in territorial days, in this century, 75 percent of the homicides were committed by white people and 75 percent of those executed, before the territorial legislature put an end to the madness, were non-white, the exact opposite; 25 percent of the murders were committed by non-white citizens and they were killed 75 percent of the time. MR. MCCOMAS pointed out that wealth also played into the scene, and members had heard about mistaken convictions. Mr. McComas noted that a number of items had been handed out to members, of which one was entitled Millions Misspent. He referred to a document that was a Congressional Subcommittee report that documented 48 cases in twenty years, 1973 to 1993 where individuals were released from death row on grounds of innocence; those mistakes were caught. Mr. McComas advised members that half the people on death row did not even have a lawyer or the chance of showing their innocence, if in fact they were innocent. MR. MCCOMAS referred to another document titled Murder Victim Families for Reconciliation, and advised members that was a national group that contained 16 to 20 stories, and an explanation of the unbelievable kinds of crimes they suffered. Every single one was an adamant opponent of the death penalty, nor did they want the memorial of their loved one to be the death of another human being. MR. MCCOMAS advised members that the sixth reason, and his final reason why members should vote no on HB 131 was that the bill represented politics in the worst sense. He pointed out that the sponsor, Representative Sanders, had been asked where the language came from during the previous hearing, and an answer was not really provided. Mr. McComas stated that he could tell members where the language came from; from Senator Robin Taylor, that it was Senator Taylor's bill filed first in the Senate, and then sponsored in the House by Representative Sanders. Mr. McComas pointed out that Senator Taylor wanted to run for governor, and at the end of the session last year the same bill died in the House Finance Committee because Representative Therriault, Republican from North Pole, decided, as a matter of conscience, that he would not promote bringing the death penalty back to the state of Alaska. Mr. McComas expressed that Senator Taylor had been closeting people, and basically saying, "Don't worry, this really isn't about the death penalty, we just want to make the governor veto this bill. We just want to have the benefit of being able to use that politically." MR. MCCOMAS stated that members would have to ask themselves if they had been receiving organized input or hundreds of calls and people clamoring offices for the purpose of bring back the death penalty. He advised members that did not exist in the state of Alaska. There was no clamor to bring the death penalty back to the state, and what was before them was a political effort to, basically, provoke a gubernatorial veto before the next election. Mr. McComas felt that that, in and of itself, was a good reason to vote against the advisory vote bill even if members opposed the administration, and maybe even more so if they opposed the administration because they would be making the very strong statement, and the kind of statement members would want their constituents to hear, which was, when it comes to life and death, you don't play politics. Number 2264 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, expressed that members had heard an awful lot of reasons for opposing the death penalty, and he would only highlight some of those reasons rather than repeat them in detail. He stated that he, as well, would provide a prosecutor's perspective on capital punishment. MR. GUANELI stated that members had heard that capital punishment was disproportionately imposed on minorities and that innocent people had been, and certainly could be executed. Mr. Guaneli pointed out that the death penalty was an irreversible action, and that the criminal justice system was not perfect. He pointed out that with more accessibility to DNA testing techniques, more innocent people had been found imprisoned across the United States. Mr. Guaneli pointed out that usually that had been found in rape cases where the perpetrator had left bodily fluid samples that could be tested by DNA, although that often did not happen in murder cases where the murderer did not leave a sample. Mr. Guaneli stated that in the cases where there had been samples left, dozens of people who had been convicted, primarily on eye witness testimony, had been found to be innocent through DNA testing, factually innocent. He advised members that that could, and actually did happen in murder cases. MR. GUANELI noted that members had heard that capital punishment was too expensive, that figures from the other states were their experience. He pointed out that so far in Alaska, it could only be speculated as a best guess in terms of the fiscal impacts. Mr. Guaneli advised members that the fiscal notes were based on the previous experiences of other states where it took approximately 9.6 years of very detailed trial and appellate litigation to bring someone to the death chamber. Mr. Guaneli pointed out that the most recent statistics he had seen, and had just seen since the Department of Law prepared their fiscal note, was that the experience in 1995 was that of those people who were actually executed, it took an average of 11.2 years of litigation. MR. GUANELI expressed that the federal government had enacted legislation called the Efficient Death Penalty, or Effective Death Penalty Law, that would shorten up that period of time, which might crank it back down to 9.6 years of litigation. The fact remained that the death penalty involved years and years of litigation, which was the reason for the excessive costs it would require. MR. GUANELI pointed out that members had also heard that it was inconsistent to try to, as a society, decrease violence by the government intentionally killing people. Mr. Guaneli stated that from a prosecutor's perspective, he felt the death penalty did one other thing, which was that it tended to skew the case law in any state. He expressed that death penalty cases were treated differently by the courts, and scrutinized much more carefully; every piece of evidence, every word spoken by the prosecutor in questioning and opening and closing argument, and every action by the defense attorney, was scrutinized in terms of, did the defense attorney provide effective assistance of counsel or not. Mr. Guaneli advised members that everything in a death penalty case was absolutely different, and the rulings on evidence and procedure were scrutinized extremely carefully. He stated that the rulings that were applied in death penalty cases often trickle down to other types of non-capital cases, making it much more difficult for prosecutors to obtain convictions in non-capital cases because the evidence rules had changed simply as a result of capital punishment existing in the state. MR. GUANELI pointed out that even if members overlooked all those objections, and if they were willing to run the risk that a few more minorities would be executed; even if willing to run the risk that a few innocent people might be killed, even if the state was willing to bear the expense, even if the state did not care that it would create legal problems in other types of cases, and even if members did not care that it sent the wrong message about stopping violence, then at least, should not capital punishment stop murders from occurring, and have some deterrent affect. Mr. Guaneli stated that the problem was that it did not, and studies from all over the country showed that the death penalty did not deter the crime of murder. MR. GUANELI continued and stated that if members did not believe that or believe the studies, that they believed, as rational people, that the death penalty would deter murder, that he thought they should ask themselves what kind of murderers did it deter. Mr. Guaneli stated that the fact of the matter was, from a victim's standpoint or perspective, that half of the victims of murder in this country were white, and half of them were black. He stated that of those people who were sentenced to death, overwhelmingly, almost all of them had killed someone who was white. TAPE 97-47, SIDE B Number 000 MR. GUANELI advised members that first degree murder was treated very severely in Alaska. Statistics that he had run, personally, showed that the vast majority of first degree murderers received sentences in the range of 70, 80, 90, 99 years, and up. Mr. Guaneli pointed out that the kinds of cases that were cited by death penalty supporters, particularly in other states was where someone convicted of murder got out of jail and killed again. That does not happen in the state of Alaska. He noted that as Representative Sanders stated during the previous hearing, "We do lock them up forever." Mr. Guaneli advised members that that was true. MR. GUANELI stated that as a prosecutor involved in a murder case where the person received a sentence of 99 years, he breathed a sigh of relief. He was over and done with that case, and could move on to the next case on his calendar. Mr. Guaneli advised members that he participated in a case in Juneau, Alaska, of a serial killer who had killed a number of people in other states and came to Alaska and committed a brutal murder in Juneau. He received a sentence of 99 years without parole. Mr. Guaneli reiterated that the case was over and done, and the District Attorneys office could move on to the next case. MR. GUANELI pointed out that the state did not want to be fighting a case like that for the next 11.2 years, but get on with the business of state government, which was prosecute cases and deal with them in a way that would protect the public, yet at the same time, would not run all the risks that the state would realize through capital punishment. MR. GUANELI advised members that the decision of the Territorial Legislature to ban the death penalty was a correct one, and urged that members not take a giant step backwards. Number 077 CHAIRMAN GREEN noted that in discussion about the death penalty, it had been indicated to him that there was no way the state could be sure that once a sentence was imposed of 70 to 90 years, that a more liberal review would not come back and change that. MR. GUANELI explained that the current legislature recently made a number of changes to Criminal Rule 35, in which once a prisoner had gone through their first appeal process, and once they had gone through the post conviction relief process, which was in essence a second appeal, that the changed law severely limited the prisoner's ability to come back to court after a given period of time. He added that the legislature had already taken a giant step, and an effective one to limit the ability of one to come back before the courts time and time again. Mr. Guaneli advised members that the federal courts had adopted similar rules that would limit accessibility to federal Habeas Corpus petitions, although in capital cases a slightly different route takes place. CHAIRMAN GREEN asked if the same restriction would apply in a capital case where the death penalty was being sought. MR. GUANELI thought that, as indicated by Mr. McGee and others, the courts treat capital cases very differently. He noted that even when past legislation had been before the legislature that had a detailed death penalty law set out, tried to do some things to short circuit it. Mr. Guaneli felt there would always be those attempts; however, felt that Alaska had a system currently in place that worked, and to inject capital punishment into that, he believed would mess up the works and result in 11.2 years of litigation. Number 176 REPRESENTATIVE BUNDE stated that existing law would not exempt death penalty cases from a Rule 35 review. MR. GUANELI advised members that the courts had traditionally treated death penalty cases differently, and certainly at the federal level. He believed that there was a great risk that courts would find that the existing limitations that had been imposed by the legislature would be unfair in death penalty cases. REPRESENTATIVE BERKOWITZ asked what the cost would be to the Department of Law for prosecuting a single death penalty case. MR. GUANELI noted that he did not have the department's fiscal note in front of him, although stated that it went into some detail as to what would be the likely cost. He advised members that the department's fiscal note was based on two very expensive and lengthy trials, one in Southeast Alaska, the Peel Case, and one in Fairbanks, the Neil McKay [Ph] Case. He stated that based on that experience, it would cost, in terms of the trial phase, several hundred thousand dollars. Mr. Guaneli expressed that one thing that came to mind when talking about costs, was that they might very well have a serious murder in a small town, which meant that venue would probably have to change. That would require that prosecutors move and witnesses would have to go to the designated city where the trial would take place, which involved a lot of hidden costs and he did not know if a lot of those hidden costs could be reflected in the department's fiscal note. Mr. Guaneli anticipated at least hundreds of thousands of dollars would be the typical capital case at the trial phase alone, and then the appellate level process would go on for a decade. REPRESENTATIVE BERKOWITZ advised members that based on having been a prosecutor in an office that was operating under tight budget constraints, his concern was that when the priority became high end cases; death penalty and major felony cases, lower level cases would be neglected; misdemeanors and lower level felonies. He felt that was to the overall detriment to public safety, and asked that Mr. Guaneli respond to that conclusion. MR. GUANELI believed that was absolutely correct, which was why in the department's fiscal note they reflected the need for a special unit to handle death penalty cases, which would include a special unit of attorneys who would be available, not only to deal with cases in Anchorage, but to fly out to any small area in the state. He stated that it was very true, that unless there was a special unit dealing with those cases, the rest of the work in the office would stop. Mr. Guaneli advised members that in all the major homicide cases the state had litigated, it usually took two attorneys, and that would result in other work coming to a halt in the smaller offices or additional personnel would be necessary. REPRESENTATIVE BERKOWITZ pointed out that the previous night the Department of Law suffered some budget cuts, as most departments did, and could not help but wonder what would happen if the department had to bear the costs of doing death penalty prosecutions at the same time of having to operate under a tight budget constraint. MR. GUANELI advised members that it simply could not be done under existing resources. REPRESENTATIVE JAMES asked Mr. Guaneli if he had participated in coming up with the numbers listed on the document entitled FISCAL IMPACT OF CAPITAL PUNISHMENT - FIRST FOUR YEARS. MR. GUANELI advised members that the Department of Law participated to the extent of identifying which murder cases the state had had experience with that would likely fall within those that would be prosecuted as capital cases, and a prediction of how many would likely be convicted. REPRESENTATIVE JAMES asked if the department had considered the Criminal Rule 35 amendment when calculating their costs as reflected on the fiscal note. Number 410 MR. GUANELI advised members that it was his belief that the numbers on the fiscal note were based on the national experience of 9.6 years of appellate litigation, whether under Criminal Rule 35, or a Federal Habeas Corpus; then back to state court and then back to federal court, et cetera. REPRESENTATIVE JAMES asked if the changes to Rule 35 would not cut those costs down some, if not challenged as being unconstitutional. MR. GUANELI advised members that it was conceivable that it could be cut down a little bit on the state side, but there would then be the route of federal court as well. He reiterated that death penalty cases jump from state court to federal court and the federal court sends it back to state court; however, advised members that he was not convinced that greatly limiting the appellate routes in death penalty cases would withstand scrutiny by the courts. REPRESENTATIVE JAMES asked what the average number of first degree murder cases would qualify for the death penalty in the state within the past 10 years. MR. GUANELI advised members that the department had found, going back a couple of years, that approximately 17 first degree murders would have had the kind of aggravating factors that might qualify as a death penalty case, per year. He pointed out that the department based their fiscal note on the assumption that they would elect to pursue a capital case in 10 of those 17 cases, which was an attempt to make a realistic guess at the fiscal impact. Mr. Guaneli stated that there may have been some mitigating factors in 7 of those 17 cases, so state would decide not to pursue those cases as a death penalty case. Mr. Guaneli stated that the department had anticipated nine out of 10 convictions, and of those nine convictions, estimated that six cases could result in the imposition of the death penalty. Number 516 CHAIRMAN GREEN asked Mr. Guaneli, with respect to the 9.6 and 11.2 years that it would take to litigate a capital case, if there would be anyway to suppress that process down to possibly three years. MR. GUANELI advised members that a good proportion of current cases that move to the Alaska Appellate Courts take two to three years under current rules and procedure. He stated that adding on to that the more careful scrutiny that death penalty cases get, and adding on to that the scrutiny the federal courts had imposed, that to attempt to suppress the process would be impossible. REPRESENTATIVE ROKEBERG pointed out that the recap of the fiscal impact the state would realize through implementation of capital punishment reflected approximately $19 million for the Public Defender's Office and the Office of Public Advocacy. The Department of Law reflected approximately $10.3 million and asked if that was an appropriate ratio for the cost of defense over the cost of prosecution. MR. GUANELI expressed that he was not in a position to comment about fiscal notes prepared by other agencies. He did point out that the public defender would have to increase its staff greatly, not only multiple attorneys per case, but also investigative resources would have to be increased greatly. Mr. Guaneli advised members that the same would apply to the Office of Public Advocacy. He noted that there would be cases, in addition, to the allegation of the public defender not providing effective assistance of counsel, the case would then bounce over to the Office of Public Advocacy. Mr. Guaneli stated that he could anticipate their numbers as being reasonable. Number 638 REPRESENTATIVE BERKOWITZ noted that the numbers on that particular document did not reflect any additional costs to the Department of Public Safety, or police agencies. MR. GUANELI agreed that it did not include anything from the law enforcement agencies. REPRESENTATIVE BERKOWITZ pointed out that the defense would have to absorb those costs themselves. MR. GUANELI stated that the defense would require extensive investigative resources. REPRESENTATIVE ROKEBERG asked Mr. Guaneli if the department used the McKay case, which involved a change of venue and was rather extensive in terms of its length and complexity, when working up their fiscal note. MR. GUANELI advised members that the Department of Law used the Peel case as a basis for arriving at approximate amounts. He stated that the Peel case was, he believed, the most expensive case the state had prosecuted. Mr. Guaneli pointed out that the department did not use the actual cost of the Peel case in the fiscal note, but as a gauge in order to determine what was in the ball park. He stated that the estimate per case, as estimated by the Department of Law, was less than one half of what the state spent in the Peel case. REPRESENTATIVE ROKEBERG asked if Mr. Guaneli would say that it would be extraordinarily difficult to attempt to estimate the costs of a capital case prosecution because of not having an actual experience over a long period of time to compare with. MR. GUANELI advised members that he believed that the costs of the trial were much more solid for the department to anticipate in a first degree murder case. They would expect at least 30 or 40 witnesses and could anticipate their per diem costs, airfare and expert witness costs because the department had experience with all those things, as well as the costs of the state's attorneys. So, in terms of the trials, he believed that the department's costs were reasonable and solid, and he would stand by them. Mr. Guaneli stated that in terms of the 9.6 years, or 11.2 years; i.e., the appellate review and the cases that bounce up and down, that he thought costs were softer simply because it did take such a long period of time. Some defendants, such as Gary Gillmore who said, "Let's do it, let's get on with it"; they waive their rights and even that took a long time to make sure their waiver was intelligent and the person competent. Mr. Guaneli noted that other death row prisoners would drag the process out, and pointed out that there were people on death row in other states who had been there 20 plus years. Number 790 CHAIRMAN GREEN felt what the Department of Law was projecting was whether or not Alaska would follow the average cost of the other states, regarding the number of appeals, et cetera, but not the cost of the court room action, itself. MR. GUANELI stated that would be correct. REPRESENTATIVE CROFT pointed out that members had again heard testimony about the murder of Trooper Heck [Ph], and if the murderer was convicted in the state of Alaska, how long would he spend in prison. MR. GUANELI advised members that he believed the answer would be 99 years without the possibility of parole. He stated that there was a special law that the present legislature enacted regarding the killing of uniformed police officers that would apply to such a case. Number 855 REPRESENTATIVE PORTER agreed with Representative Berkowitz's concern that the fiscal note was incorrect to the extent that the Department of Public Safety was not represented because he could validate that the costs to the Department of Public Safety, and to police departments of municipalities, would increase tremendously. He noted that with a first degree murder case there would be one in-court investigator for the duration of the trial itself, and that a capital punishment case would have at least two in-court investigators for the duration of the trial. That would last at least six months versus one month, which would result in a lot of felony cases that would not get investigated. MR. GUANELI stated that there was no question that what Representative Porter just outlined would be correct. He advised members that was the state's experience in the Peel case that they needed two or three investigators off their duty stations, and he believed the same was true in the McKay case. REPRESENTATIVE JAMES asked if that would involve additional people for a capital punishment case. MR. GUANELI pointed out that there was no question that in any first degree murder case additional police resources were required. He stated that in capital murder cases, it was a fact that every piece of evidence was looked at through a microscope. He referred to it as somewhat like having the O.J. Simpson trial all the time. All investigators have to be on call constantly, that whenever the defense raised a point, the state would have to send the investigators out to do follow up investigation. Mr. Guaneli reiterated that everything was looked at with a great deal of care, and the investigators had to be available to do additional work constantly, and to be available in court to help the prosecutors prepare the case. REPRESENTATIVE JAMES stated that they would not want to add in all the costs, but only the accelerated costs in a fiscal estimate of what the costs would be. REPRESENTATIVE PORTER advised members that he was talking about accelerated costs, over and above the cost to prosecute a first degree murder case. Number 978 CHARLES CAMPBELL former Commissioner, Department of Corrections, advised members that there was one matter that was particularly troubling to him and was pleased to see that Representative Sanders was still in attendance because he wanted him to hear it, because it could quite possibly go to the question of the safety well-being of the populace. MR. CAMPBELL advised members that in 1969, Glenn Pearce [Ph], and William Bowers [Ph], both criminologists at Northeastern University, published a report on their comprehensive study of the death penalty in New York State from 1907 until 1964. Mr. Campbell stated that over that period of time, 692 executions were carried out. He stated that during these 97 years, each of the months in which one or more executions were carried out, it was followed by an average increase of two additional homicides in the state of New York. That brought about the question, did that mean that executions caused innocent people to be murdered, and it was felt there had to be some other explanation. MR. CAMPBELL pointed out that Dr. Pearce, who was an exceedingly careful, objective social scholar, had been on the look out for another explanation for the past 17 years. Mr. Campbell pointed out that he speaks with Dr. Pearce every two or three years. He advised members that there had been additional, less extensive studies that tended to corroborate Dr. Pearce's results. Dr. Pearce was still not sure, but as the years had gone by, Dr. Pearce had become increasingly inclined to give value to the apparent finding that publicized executions, rather than having a deterrent effect, were inclined to incite persons who were predisposed to violent crime. MR. CAMPBELL expressed that he would tell the committee why he believed that to be true. He pointed out that he had been involved with Corrections for a good number of years. He had seven different field assignments during his 20 years with the federal prison system. One of those assignments was at the Medical Center for Federal Prisons in Springfield, Missouri, where they conducted major psychological studies ordered by the courts; both federal and state cases. Mr. Campbell advised members he sat through many hours of briefings on some of the most bizarre and violent criminals one could ever imagine. He noted that he had a medical job at the medical center, but also had a case load of two persons with whom he had to go into the cell and have face to face interviews with from time to time. Both of those people had committed vicious murders; one person was a multiple murderer. Mr. Campbell stated that the point he wanted to make was as he thought of those wretched individuals locked up at the medical center in Springfield, Missouri, was that it was absolutely preposterous to think that those kinds of people would hesitate for one instant to commit murder by the prospect of being put to death by the state. MR. CAMPBELL stated that one could add to all of that the clear and unmistakable pattern that emerges when you look at comparative murder rates in North America and in Europe. He stated that the jurisdictions that have the death penalty have higher murder rates. The jurisdictions that had initiated the death penalty, or reinstated the death penalty, as the 38 states in the United States since Greg v. Georgia, have either seen no change, or an increase in their murder rates. The states of Florida and Texas could demonstrate that rather dramatically. Mr. Campbell pointed out that it was true that no social scholar had ever been able to refute the findings of Robert Rontell [Ph], who conducted his extensive studies in Europe over 100 years ago that demonstrated a pattern of high homicide rates following increased use of the death penalty. MR. CAMPBELL stated that it could not be said that any one factor he was pointing out proved anything beyond question. However, everything, all of the statistics, all of the anecdotal evidence leaned in one direction. He expressed that members could not avoid suspecting, and stated that he was beginning to believe that the term "violence begets violence" was far more than just a pais axiom. Mr. Campbell was convinced it was the truth, and even if one should consider what he was saying was just a bunch of nonsense, what if they were wrong; what if there was validity to what he was telling members. Mr. Campbell did not think it was a chance worth taking. MR. CAMPBELL advised members that the reinstatement of the death penalty in the state of Alaska would not be a good idea, that there were no purposes to be served, no needs to met, no problems to be solved or advantages to be gained, unless members were basing their support on vengeance. He pointed out that vengeance was the only thing left to base their decision on if they supported the death penalty. Mr. Campbell stated that he simply could not believe that most of the people of Alaska, of whom many take their Biblical injunctions seriously, would be interested in such a change in criminal justice policy, based on vengeance. He advised members he opposed the idea of an advisory vote because he opposed anything that conceivably could move the state closer to restoration, or reinstatement of the death penalty. Number 1326 REPRESENTATIVE ROKEBERG expressed his appreciation of Mr. Campbell's long interest in Corrections and background in penology, and stated that he was curious if he had been able to determine if there was any long term trend in any country that showed any diminution of homicide. Anecdotally, he suspected that the long term trends had been an increase in homicide, and asked if there would be a potential for the increase in homicide after an execution had taken place. MR. CAMPBELL advised members that he did not know the answer to that question. He knew the rough data of there being an inclination for there to be no change as a result of the death penalty, or a reduction in homicide rates where the death penalty existed. Mr. Campbell pointed out that Canada abolished the death penalty in 1976, and it was not known if it proved anything; however, the homicide rate had decreased in that country since the abolishment of the death penalty. MR. MCCOMAS requested that he be able to respond to Representative Rokeberg's question. He stated that basically, over the long term there had not been a constant increase or decrease in homicide rates. There had been a fluctuation if measured for 100,000 population, and it seemed that the things that correlated most directly with that were demographic changes in a population. Number 1482 CHAIRMAN GREEN recognized Mr. McGee's request to respond to the fiscal impacts reflected in his fiscal note. MR. MCGEE advised members that he wished to supplement Mr. Guaneli's remarks regarding the Peel case. Mr. McGee expressed that he was the opposing counsel in that case so he could respond from the other side of case. Mr. McGee noted that Mr. Guaneli testified that he basically cut the numbers in half, with respect to witness costs, and Mr. McGee advised members that his numbers reflected the same thing. He stated that was probably perhaps because neither Mr. Guaneli or himself wanted to contemplate the possibility of another Peel case in Alaska. Mr. McGee noted that although it was the longest criminal trial in the history of the state, it was just eight months. He expressed that in Los Angeles County the average death penalty case was six and a half months, which was just short of Alaska's state record. Mr. McGee felt that the numbers on the fiscal note reflected very conservative evidence on the part of the Department of Law and the Office of Public Advocacy in terms of the actual costs that they should realistically anticipate in terms of the litigation of death penalty cases. Mr. McGee asked that members recall, as well, that the Peel case was about guilt or innocence; there was no penalty phase in that case, so literally, half of the costs of a lot of death penalty cases were not incurred in the Peel case, or in any other homicide cases in Alaska. He asked that members bear in mind that the homicide cases in Alaska were half of what a regular capital case would involve because the state did not have separate trials on the issue of sanctions, or imposed punishment. Number 1581 REPRESENTATIVE ROKEBERG asked Mr. McGee if the defense of a capital case required a substantially greater cost than the prosecution of the case. MR. MCGEE responded that in terms of costs per case borne by the agencies, borne by OPA and borne by the Department of Law, he would say did, simply because OPA would not receive the benefit of the law enforcement assistance which the Department of Law receives. He pointed out that capital cases were fact intensive cases, both phases, and the agency would be devoting a lot of its resources to the investigation of the case. Mr. McGee stated that certainly in the Peel case the defense was out-spent by the prosecution, but asked that members remember that the numbers on the Peel case did not include any attorneys fees at all. REPRESENTATIVE ROKEBERG asked how much the Peel case cost the state of Alaska, both for the prosecution and the defense. MR. MCGEE stated that his estimate, at the time, was several million dollars. He pointed out that the initial trial lasted eight months which occurred approximately 16 months after the arrest of the primary suspect, John Peel, and that resulted in a hung jury, 9 to 3 for not guilty. The case was then re-tried in Juneau, Alaska, and that trial lasted four months and resulted in an acquittal. Mr. McGee stated that his estimate of total costs of all resources was well in excess of several million dollars, and reminded members that was half a trial; an adjudication of guilt or innocence, not a capital case that required two separate trials. He reiterated that it was tried twice and was a very intensive case, but pointed out that there were no appeals because Mr. Peel was acquitted. Mr. McGee advised members that one could readily argue that the Peel case was as cheap as the state could ever get off with a death penalty case. Again he expressed to members that both Mr. Guaneli and himself had cut their actual cost figures in half in order to do per case estimates on the contractual costs. MR. MCGEE advised members that it would be hard to make the case that the fiscal notes were exaggerated, in fact, he felt if anything, the opposite would be true. REPRESENTATIVE ROKEBERG asked if Mr. McGee had said several million dollars, or $7 million. MR. MCGEE expressed that he stated several million. REPRESENTATIVE ROKEBERG asked if Mr. McGee could put an exact number on the Peel case. MR. MCGEE stated that he could not, in fact, would not have any idea because the only numbers they had historical access to, at this point, were contractual and travel costs. He pointed out that no one, to his knowledge, had made a calculation of what it cost Alaska State Troopers to have all its investigators available, full time, for a couple years, and what it cost the Department of Law for their various attorneys, as well as what it cost OPA as to its involvement in the case. He reiterated that he would estimate, at the very minimum, it would cost several million dollars. Number 1868 REPRESENTATIVE PORTER underscored Mr. McGee's comments and advised members that in most other states, the county and state prosecutors offices had their own investigative staff, and that was not the case in the state of Alaska. CHAIRMAN GREEN pointed out that it had been said that jurors were sometimes swayed because of the type of case they were serving on, and if the case being tried was a death penalty case, that it could possibly be acquitted rather than rendering a guilty verdict because of the possibility of the death penalty being imposed. MR. MCGEE advised members that he believed that was a valid argument, simply because he took the word of prosecutors that he had talked with throughout the country, and prosecutors whose word he had read about around the country, as well as his good friend and former opposing counsel, Peter Gruenstein, who was for many years one of the more outstanding prosecutors in the state of Alaska, who handled many homicide cases in this state, including some against Mr. McGee. Mr. McGee advised members that Mr. Gruenstein was verbally convinced that jurors could be swayed, which was one of the primary reasons why he was so strongly opposed to the death penalty. Mr. McGee stated that Mr. Gruenstein believed that killers would walk away because of the possible imposition of the death penalty. MR. GUANELI advised members that he also thought that could happen, and that it ought to be a concern to everyone, and was certainly a concern to the courts. Mr. Guaneli pointed out that he felt that was one reason why the jury selection phase of any capital case was so long, drawn out and complicated. He expressed that in other states they attempt to find what was termed, "death qualified juries", people who have, or lack, certain feelings about the death penalty. Mr. Guaneli stated that what it often meant was that there was something called individual voir dire. In Alaska, the jury panel is questioned as a whole, together, and in death penalty cases, as well as in the Peel case, there was individual voir dire whereby by each juror was questioned individually in front of the judge and the attorneys. Mr. Guaneli expressed that they spent approximately an hour with each juror going over a long list of questions that had been agreed to by both the defense and the prosecutors, and approved by the judge in the case. He noted that it was a very intensive procedure, with the jury selection process that took many, many weeks. Mr. Guaneli stated that much of the length of time in the trial was simply jury selection to try to avoid the kind of thing Chairman Green had brought attention to; however, he stated that often times even that did not work. Number 2093 REPRESENTATIVE CROFT asked if the voir dire process was to protect the defendant. MR. GUANELI stated that he thought that individual voir dire, and very careful voir dire, was a method of preserving the rights of both sides in a case. REPRESENTATIVE CROFT asked if, through voir dire questioning, the potential jurors were asked how they felt about the death penalty, and whether they could impose it. MR. GUANELI advised members that those were the types of questions asked, as well as questions relating to a person's religious views, their moral scruples, philosophical views about the death penalty, about crime, about all sorts of things. He reiterated that it was a very intensive process, and a very invasive process to many jurors to have their deepest held beliefs probed. REPRESENTATIVE BERKOWITZ stated with respect to voir dire questioning, if Mr. Guaneli would envision that an entire jury panel would be selected and held, throughout the voir dire process, if the death penalty were to be reinstated. MR. GUANELI asked if Representative Berkowitz was referring to the jury panel being sequestered. REPRESENTATIVE BERKOWITZ stated not necessarily sequestered, but his experience with picking a jury was such that everyone was called into the courtroom, or jury room, and each person would be plucked out, one at a time, while everyone else was sitting there spinning their wheels. MR. GUANELI stated that he felt there were a variety of ways that could be done. He believed that in the Peel case, they would get to a juror every half hour to an hour and they basically scheduled them that way so people would have a scheduled time to show up at the court house. Mr. Guaneli felt there were ways it could minimize the impact on jurors; however, the jury selection process was certainly a very intense process. Number 2216 REPRESENTATIVE BERKOWITZ stated that it would be fair to say that for the pool under consideration for jury duty, that even during the selection process, and certainly during the trial phase, it could constitute a substantial imposition on the individual's ability to lead free and unfettered lives. MR. GUANELI felt that was always the case in any long trial. He stated that it was certainly true in the Simpson case, or other trials that last a long time. He stated that it was unfortunate, but the price we pay for living in a society that has a jury system as its form of justice. TAPE 97-48, SIDE A Number 000 REPRESENTATIVE ROKEBERG stated to Mr. Guaneli, that given the constraints put on the Department of Law in terms of budgeting, and in being in a position as a prosecutor if there were not ways that the criminal justice system could be more cost effective in delivering their services by placing certain parameters, or limits, on those services. He asked Mr. Guaneli if he thought, as an attorney philosophically, that justice should have a blank check. MR. GUANELI expressed that he did not believe any state agency deserved a blank check for anything it did. But he did believe that based on the laws that were in place, and based on the constitutional protections provided, that justice and fairness under the state's system was not cheap. Mr. Guaneli thought that there was a cost that must be borne, whether that cost was as a result of a court-imposed doctrine, or simply the plain reading of the constitution. Mr. Guaneli pointed out that there was a minimum below which the state could not short cut the system. CHAIRMAN GREEN stated that there being no further questions by committee members, he would close public testimony on HB 131, and the issue would now be before members for discussion. Number 164 REPRESENTATIVE CROFT moved for the adoption of Amendment 1, HB 131, page 1, line 8, delete [Shall], and insert; If the Alaska State Legislature enacts a law providing for capital punishment for murder, the following annual fiscal costs to the following state agencies are estimated to result: (INSERT FISCAL COSTS) Considering this, shall, and on page 1, following line 12, insert a new bill section to read: "*Sec. 2. Each department that expects to be affected by the enactment of a law providing for capital punishment for murder in the first degree shall submit an estimate of that fiscal impact to the lieutenant governor not less than 180 days before the time the question in sec. 1 of this Act will appear on the ballot. The lieutenant governor shall insert those estimates into the question at the place shown in sec 1 of this Act. REPRESENTATIVE ROKEBERG objected. REPRESENTATIVE CROFT explained that Amendment 1 did what some of the speakers had spoke to today by placing the estimated costs to state agencies on the advisory ballot. He made reference to the single page document that had been referred to a number of times during the meeting, and advised members that he had requested his staff to prepare that document. Representative Croft explained that the numbers reflected were only those submitted by the various agencies on their fiscal notes. He stated that it was, basically, an addition of a four year time cycle of estimated costs by the affected departments. REPRESENTATIVE CROFT reiterated the situation with the ice rink proposal in Anchorage, Alaska, where after the people realized what it would cost voted the proposal down. Representative Croft felt that was the real question that should be placed on the advisory ballot. He felt what was provided by the agencies were good faith estimates based on the history of Alaska trials, and based on what had happened in other states. Representative Croft pointed out that Alaska had a rare advantage in this case because so often members were making laws and wondering what they would do. He expressed with HB 131, the legislature had 38 other laboratories who had reimposed the death penalty, and had seen what had taken place in those states, with the costs being two to six times over and above the cost to imprison someone for life. Representative Croft informed members that it cost the state of Alaska approximately $100 per day to house one prisoner, and to house that prisoner for 30 years would cost the state a little over $1 million. He added that he did not know how long the person would live while in state custody, but just chose 30 years as an example. REPRESENTATIVE ROKEBERG believed that was a mathematical error. CHAIRMAN GREEN advised members they would revisit that concern. REPRESENTATIVE CROFT further explained that evidence had been provided that in no case did any state save money by implementing the death penalty, which he believed stood unrefuted. Representative Croft pointed out that members had received good estimates regarding the length of capital trials and what they cost, and to place the issue before the people in its original form, would be asking a misleading question. Representative Croft pointed out that what the question was, was if the public wanted to pay the cost for implementing and utilizing the death penalty as criminal punishment in the state of Alaska. REPRESENTATIVE CROFT expressed that Representative Porter rightly pointed out that in the proposed amendment, on line 4, the word "additional" should be inserted after the word "following", and Representative Croft would accept that as a friendly amendment to Amendment 1. CHAIRMAN GREEN pointed out that he mentally calculated quickly what it would cost the state to house a prisoner for 30 years and he came up with approximately $1.08 million. REPRESENTATIVE ROKEBERG expressed that he did mis-speak somewhat, that he was using a different figure and agreed with the estimated calculation arrived at by both Representative Croft and Chairman Green. REPRESENTATIVE JAMES advised members that she liked the language of the amendment and additionally, did not like to mislead people. She stated that when you begin a survey with a question beginning with, "If you knew that ....", et cetera, that it did allow people the opportunity to have a more realistic position on the issue. Representative James advised members that she could support the amendment as put forth by Representative Croft. REPRESENTATIVE PORTER asked if the word "additional" was now included in the amendment before the committee. CHAIRMAN GREEN expressed that it was still under discussion; however, he did not see a problem with inserting the word "additional". REPRESENTATIVE ROKEBERG pointed out that he did see a problem and objected to the friendly amendment to Amendment 1. Number 724 REPRESENTATIVE ROKEBERG was concerned about the clarity of the costs, in relation to the super due process that had been referred to in earlier testimony. However, Representative Rokeberg did not feel it could be done anyway, so he withdrew his objection to the friendly amendment to Amendment 1; therefore, the word additional would be inserted after the word "following" on page 1, line 4, of Amendment 1. CHAIRMAN GREEN advised members Amendment 1, as amended was before the committee. REPRESENTATIVE PORTER pointed out that the amendment referred to estimated costs, not exact costs, and to the extent that they could be calculated as carefully as possible he was sure would be done, and thought the amendment would allow that to occur. He stated that it would not include the numbers on the previous fiscal notes because they addressed a specific bill, and it would not be necessary to establish what was contemplated as costs for the death penalty because that would have to be in the wording. Representative Porter expressed that if members were discussing a death penalty bill for the slaying of police officers only, that would be one thing; however, if it affected any first degree murder, that would be an entirely different circumstance and he felt it would be necessary to establish what type of cases the costs would be reflecting. Representative Porter still felt it was a valid point to present that information to the public because the issue was an extremely expensive proposition. REPRESENTATIVE PORTER stated that the legislature, of all people, should know that the likelihood of a commensurate budget increase in those areas was slim to none, and from that standpoint, there would be no doubt in his mind that there would be an awful lot of criminal justice activity that would not get accomplished. He felt that it was only fair if there would be a ballot vote that those facts be presented to the public. CHAIRMAN GREEN agreed with the statement of Representative Porter. He reiterated that he had conducted a poll in his district the previous year as to whether the people supported the death penalty, and two thirds said yes. The question then continued to state that if the people were aware that it would cost one and a half to two times of the cost of life in prison, it dropped to 50 - 50 immediately. He pointed out that if the question had stipulated costing three to eight times that of life in prison, the results would have been even lower that 50 percent. Chairman Green felt the cost issue was very valid, and though it may not reflect exact figures, it would certainly educate the public as to what they would be voting on. Number 960 REPRESENTATIVE ROKEBERG advised members he was very disturbed, and stated that there had been testimony before the committee which he found rather disturbing, in its form, that he disagreed with. For example, to say that it was a given fact that the death penalty would cost three to six times as much as life in prison because it did in other states and, historically, in the past prior to federal law that it would cost three to six times more was just not right, that it was false. Representative Rokeberg stated that he thought the original question Chairman Green posed to his constituents might be closer to what the death penalty would cost, except that the cost was still not known. Representative Rokeberg pointed out that there had been testimony at the present hearing which reflected that no one knows how much the Peel case cost, and to use the highest cost case, that and the McKay case as a baseline, might be a good conservative method in which to calculate costs, but in this instance, everything and everybody seemed to be trying to bulk up a number, which came down to having a game of numbers. Representative Rokeberg continued by stating that the question would become who calculates the cost, and what assumptions did they use. For example, Representative Rokeberg pointed out that they just had a little bit of a side board situation about how much it costs to incarcerate a criminal in the state of Alaska. He stated that the fact of the matter was that it depended on what the average age of a criminal was, which he would submit was probably in the twenties, and how long they live, which he submitted was longer than 30 years, and could possibly be up to 50 years if they considered the statistical averages. REPRESENTATIVE ROKEBERG felt that if members were going to proceed along the lines of providing numbers to the public that members should start making some assumptions and give directions, because he would suggest that the same people who provided bogus numbers for the capitol move, would provide bogus numbers on this issue. Representative Rokeberg expressed that he did not mind the point that was being made was that there was a cost attached, but to try to quantify the costs down to a "gnat's eyebrow", and to attempt to charge someone, as the amendment did, to come up with the numbers and bring them back and put them on the ballot was totally crazy. Representative Rokeberg advised members that they would not get any real numbers unless there was a very strict oversight on how the numbers were drafted. He stated that he did not care if it was net present value, nominal dollars, or anything; it just did not work, and the best that they could expect was what they used to call in the real estate business as WAGS, "wild ass guess." He felt it was a mistake, and believed members were going down the wrong path. CHAIRMAN GREEN pointed out that the state operated off fiscal notes and everyone has their views and make estimates of what should be spent. He stated that to say it would not be possible to come up with a specific number might be so; however, they could provide an estimated cost range, or "this is the number, plus or minus". Chairman Green expressed that to say they would not be able to come up with numbers, so therefore, numbers would not be included he felt was equally foolish. Number 1172 REPRESENTATIVE BERKOWITZ stated that it was interesting that Representative Rokeberg considered the numbers to be far flung. He stated if members wanted to talk numbers, they should consider the deterrent value of implementing the death penalty. Representative Berkowitz advised members there had been no solid numbers offered on that issue, and no solid reasons offered as to why the legislature should even take the step being proposed in HB 131. Representative Berkowitz stated that if they were going to juggle numbers in the air, they should juggle numbers that were pertinent to the passage of the particular bill before the committee, which were the fiscal notes and were the affects of the reinstatement of the death penalty. He further stated that there was numerical showing or nothing quantifiable about its positive benefits. REPRESENTATIVE BERKOWITZ stated with that spirit in mind, he would like to offer a conceptual amendment to add into the fiscal impact the costs to the Department of Public Safety, and law enforcement agencies. REPRESENTATIVE JAMES felt that public safety and law enforcement agencies would be involved because they were included as state agencies. REPRESENTATIVE BERKOWITZ thought they were talking about the four departments listed on the one page document entitled Fiscal Impact of Capital Punishment, which included Corrections, Administration, Law and the courts. CHAIRMAN GREEN agreed with Representative Berkowitz understanding of who would submit costs to the lieutenant governor. REPRESENTATIVE JAMES expressed that that document had nothing to do with the amendment before the committee. REPRESENTATIVE CROFT stated that he had no objection to having the Department of Public Safety come in; that they probably should, and expressed that he was not quite sure why they had not submitted a fiscal note on HB 131. He would expect, and hoped that every affected department would submit a fiscal note and the big gap seemed to be the Department of Public Safety. Representative Croft did not know if they needed to amend Amendment 1 to specifically list every affected agency, so to include the Department of Public Safety. REPRESENTATIVE JAMES advised members that she was not in favor of listing the agencies affected because they could then run into the problem of leaving someone out. She thought what was on the record would include the Department of Public Safety because they were an affected agency. REPRESENTATIVE PORTER advised members that there was a pretty simple way of expanding the law enforcement costs. He expressed that the state was very fortunate to have a unified district attorneys office, that no matter what police agency brings them the case, the district attorneys' office had a handle on all the cases and if the Department of Public Safety could arrive at a cost for one case, all that would be necessary was to multiply that figure. Number 1319 REPRESENTATIVE JAMES advised members that she was pleased with the amendment in its current form and believed that it would represent the people well and provide the means to answer the question with knowledge. REPRESENTATIVE ROKEBERG expressed that it was necessary for him to leave; however, if they were going to continue discussion on presenting a cost to the public, he would take a very strong exception to the number provided by the Department of Corrections, which required separate beds, et cetera, for $16 million. He thought that figure was absolutely false, and felt if the committee was going to pursue the issue that someone from the Department of Corrections should provide direct testimony on that issue. CHAIRMAN GREEN pointed out that the amendment was not specific to any numbers. He felt there was a miscommunication and would talk to Representative Rokeberg about that later because he needed to leave the committee at this time to chair the House Labor and Commerce Committee. Number 1484 REPRESENTATIVE SANDERS advised members that with or without Amendment 1, he would like to see the bill moved forward. He felt the amendment was a mistake. Representative Sanders pointed out that he remembered voting on the capitol move; he voted three times to move the capitol and when they finally put the price of the move on the ballot, he voted not to pay the price. But he, like the rest of the public, realized that they only put the price on the ballot in order to kill the initiative. Representative Sanders stated that everyone knew that, and they were not fooling the public. He expressed that a gentleman had testified that 75 percent of the public wanted the death penalty and that they had been frustrated for 20 years by a few people in the legislature. "But don't think we're going to fool the public with this." Either way, Representative Sanders reiterated that he would like to see the bill move forward. REPRESENTATIVE BERKOWITZ stated that those were interesting comments, and pointed out that there were often times when he would see something that he wanted, but when a price tag was placed on the item, like a new car, he'd have to say he could not afford it. Representative Berkowitz advised members that that was part of understanding exactly what you're able to buy or pay for, so he felt it was necessary to include a price tag on the proposed legislation because that was the only way it could be done fairly. REPRESENTATIVE JAMES advised members that she certainly agreed with what Representative Sanders said regarding the capitol move, and pointed out that she voted for it even after seeing what it would cost because she felt it was a false calculation. She believed it still was, and they did not fool her on that one, and they would not fool her on this one either if there was not good backup documentation provided in support of the numbers presented. Representative James stated that she would not deny there would be additional costs for implementing the death penalty; however, how much additional costs was questionable. She advised members she felt comfortable with the language in the amendment, but that the people providing the cost estimates better have the numbers backed up in some manner. Number 1594 REPRESENTATIVE PORTER stated that if HB 131 would subsequently pass and the computations begin, he would aim it at what the question was, which was "death penalty for first degree murder", and that would be the basis for the calculating the costs. REPRESENTATIVE JAMES expressed that she would like to receive a copy of the calculations prior to them being put before the public. CHAIRMAN GREEN advised members that Amendment 1, as amended, was before the committee. Because of Representative Rokeberg's departure, his objection could not be maintained, and Amendment 1, HB 131 was adopted. CHAIRMAN GREEN advised members he would not take action on the bill itself until members had time to absorb the testimony they had heard and reviewed the backup materials provided. The bill would be brought up at a later date for final discussion.
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