Legislature(1999 - 2000)
02/25/2000 01:22 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 350 - CRIMES PROSECUTED IN OTHER JURISDICTIONS CHAIRMAN KOTT announced that the next order of business before the committee is HOUSE BILL NO. 350, "An Act repealing the statutory bars to the State of Alaska's prosecution of a criminal act that resulted in a conviction or acquittal by the United States, another state, or territory." [The bill had one section, which read: "AS 11.71.310 and AS 12.20.010 are repealed."] Number 0240 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Legal Services Section-Juneau, Department of Law, informed the committee that HB 350 changes the statutory bar to the state's prosecution of criminal cases when another jurisdiction has already prosecuted them, in circumstances where it is important for the state to prosecute. Whereas AS 12.20.010 is the general statutory bar in effect since statehood, AS 11.71.310 is the statutory bar for drug offenses, in effect since 1982, when the current version of the state's drug laws were passed. MS. CARPENETI explained that two important recent cases have caused reconsideration of this policy that has been followed since statehood. First was the World Plus pyramid scheme fraud case out of Fairbanks, in which the defendant was charged by the federal government with various federal offenses. The state prosecuted for violation of Alaska's securities laws, but the prosecution was dismissed on the basis of this statute. Ms. Carpeneti told members that important state interests should have been pursued in that prosecution, and therefore the state has noticed appeal. The second case occurred when a cruise ship dumped dirty water into Southeast Alaska's waters last summer. Here again, the federal government prosecuted the cruise ship company but the state was not able to do so because of the aforementioned statute. Again, there were important state interests involved. Therefore, both of these cases have led to this legislation. Number 0428 REPRESENTATIVE ROKEBERG referred to the cruise ship fact pattern and asked whether the state had civil remedies available. MS. CARPENETI answered that they may have, which could be addressed by someone else. However, the state was unable to pursue criminal penalties and fines for actions that are crimes under the state's laws. REPRESENTATIVE ROKEBERG asked why this would not be double jeopardy in a criminal action. MS. CARPENETI explained that Alaska's courts and federal courts have upheld that it is not a violation of double jeopardy for prosecutions from different governmental authorities to prosecute and punish for the same conduct; therefore, the state and federal governments could prosecute for the same conduct without creating double jeopardy. However, the state and a municipality could not prosecute for the same conduct because the powers of each come from the same source. The courts have upheld that double jeopardy applies to repetitive prosecution by the same governmental entity. REPRESENTATIVE ROKEBERG inquired about the age of the line of cases on this principle and whether the U.S. Supreme Court has ever ruled on it. MS. CARPENETI answered that regarding the federal government, the line of cases would be fairly old, to the best of her knowledge, and it is established law. Number 0597 REPRESENTATIVE ROKEBERG inquired as to why the state now wants to be able to do this. He asked whether it is a matter of subjective judgment on the part of the Attorney General, for example, who may feel that the punishment meted out by one jurisdiction wasn't severe enough, and so, for retribution, the state would prosecute again to get the miscreant twice instead of once. MS. CARPENETI answered that in most cases the state would evaluate a prosecution as it would any case. There isn't an expectation of going out and prosecuting people that others have prosecuted. In drug cases, for example, the state works with the federal government and cooperates with the federal drug enforcement people. Sometimes the federal government decides to pursue a prosecution in a particular case, and sometimes the state does. Ms. Carpeneti related her belief that the Attorney General would give consideration as to whether the interests of the authority that has already prosecuted - in most case, the federal government - have really brought justice to the interests of the State of Alaska. She cited the cruise ship pollution case as the best example. She specified that the federal government punishment for the cruise ship pollution case was fines. She indicated the state also would be interested in a prosecution from which fines could be collected for criminal behavior because the pollution had occurred in state waters. Number 0730 REPRESENTATIVE ROKEBERG asked why the state could not have pursued civil remedies instead of criminal ones. MS. CARPENETI said she supposes that civil remedies could have pursued, but she doesn't feel comfortable discussing that because she isn't familiar with that part of the case. She pointed out that for every case evaluated for prosecution, the following are reviewed: the harm, the laws, the reasons for the laws, and the evidence. Much of it is making decisions that [the department] believes to be the best policy for the state. She believes that the Attorney General would have liked to have had the choice to prosecute the cruise ship company for polluting Alaska's waters. REPRESENTATIVE ROKEBERG referred to the World Plus Ponzi scheme and asked if the state could pursue civil remedies or other fines under the [Alaska Securities] Act. MS. CARPENETI clarified that they are criminal security violations that the state brought, but which were dismissed because the court found that the federal and state prosecutions were too similar and violated the statute. REPRESENTATIVE ROKEBERG noted that having authored the rewrite of the Alaska Securities Act, he would point out that fines can be levied civilly or by administrative adjudication under that Act. He said he is troubled with both these fact patterns because there are remedies available to the state other than dual criminal prosecution. Number 0879 REPRESENTATIVE CROFT emphasized that because the state is a separate sovereign entity, it has the power to make things criminal and should have the power to prosecute those laws and the violators. Whether the federal government decides to punish a particular course of conduct lightly or heavily does not affect the state's sovereign right to decide the appropriate punishment. This is necessary in order to be able to place the level of punishment that the legislature has decided for a criminal act. It is a point of discretion whether the state believes it ought to pursue a prosecution, regardless of what the federal government does or does not do. REPRESENTATIVE JAMES agreed with Representative Croft. The issue is the sovereignty of the state, she said. Although she believes Representative Rokeberg's remarks have merit, she emphasized that she is more distressed with civil penalties after a criminal penalty than she is with a criminal penalty after a criminal penalty. She turned to the pollution case and asked if the "tanker" dumped pollution within Alaska's waters as well as outside the three-mile limit. Furthermore, was the federal case about dumping in Alaska's waters or outside Alaska's waters? MS. CARPENETI related her belief that the case dealt with dumping both inside and outside of Alaska's waters. REPRESENTATIVE JAMES commented that [pollution dumped] within Alaska's waters has the possibility of moving outside of Alaska's waters. She clarified that she had wondered if dumping inside and outside of Alaska's waters would result in two different cases. She remarked that she believes that case is important, and that she was disappointed that the state was unable to seek criminal action in the World Plus case, which was a serious breech of Alaska's law. MS. CARPENETI specified, in response to Chairman Kott, that in the cruise ship pollution case the federal government had criminally prosecuted the cruise ship company. CHAIRMAN KOTT asked if repeal of this particular section of law would afford the opportunity to pursue prosecution from the state's standpoint on that particular case. He further asked whether there is a statute of limitations. MS. CARPENETI indicated agreement, but noted that there may be a statute of limitations bar and an ex post facto problem. She said she would provide an answer as to whether the state is pursuing [the cruise ship pollution case] as a civil matter. Number 1174 REPRESENTATIVE GREEN commented that he could not imagine why there would be any concern with regard to eliminating a bar that the state had put in place, thereby allowing prosecution by the state for an offense against the state, whether or not there is federal prosecution. He does not believe it is double jeopardy. REPRESENTATIVE ROKEBERG restated that it is "kicking the guy when he's down" and a de facto double jeopardy, whether legal or not. He said there must have been a public policy discussion about this when this legislature put the bars in place. CHAIRMAN KOTT expressed curiosity regarding why the bar originally went into effect. MS. CARPENETI informed the committee that she believes the original bar was probably in effect before statehood because the general bar is cited as 1962 in Alaska's statutes. She recalled that 1962 was when criminal procedures were adopted after statehood. REPRESENTATIVE GREEN commented that there have been significant changes in the last 40 years. He does not believe that just because the law was in place before is a justification that it should remain. Number 1322 REPRESENTATIVE MURKOWSKI referred to the fiscal note from the Public Defender Agency, which says "The United States Department of Justice has a strict policy against successive state and federal prosecutions. Presumably, if this bill passed, the Department of Law would develop similar standards." She related her understanding that the U.S. Department of Justice has in place what the state currently has on its books. MS. CARPENETI clarified that there is no federal bar on prosecutions after another jurisdiction has prosecuted; however, that is not done very often. She believes that with the Rodney King case the federal government prosecuted the defendants after they were acquitted in state court. Generally, one prosecution is adequate to bring justice to a situation, but in some cases it is not. In the pollution cases and some particular cases, the Attorney General should have the authority to prosecute on the basis of the interests of Alaskans that were harmed. CHAIRMAN KOTT asked if there is some interaction between the Attorney General and the federal prosecutors on cases that involve both [jurisdictions]. MR. CARPENETI affirmed that. CHAIRMAN KOTT related his belief that the state, working together cooperatively with the federal government, could have the state's issues addressed during the prosecution, which could probably save the state some time and energy. REPRESENTATIVE ROKEBERG recalled that in the Rodney King case there were criminal prosecutions, and the subsequent federal prosecutions were under civil rights laws. MS. CARPENETI said she thought they were criminal cases. REPRESENTATIVE CROFT clarified that it was a criminal violation of their civil rights. REPRESENTATIVE ROKEBERG interjected that his point is that there were two different types of causes of actions, one for assault and the other being a civil rights violation. There were two different types of violations, and there was not prosecution for the same violation. REPRESENTATIVE CROFT pointed out that there is no generic federal assault prohibition. Number 1501 MS. CARPENETI clarified that it would be the same act but a different statutory basis, because the department prosecutes on the basis of state law and the federal government prosecutes on the federal law. The same principles being discussed would apply to a similar situation in the state; it would not be called the same crime, but would be based on the same act. REPRESENTATIVE GREEN asked if Ms. Carpeneti has any idea why this law was enacted. MS. CARPENETI said she believes there were probably different considerations in territorial days, as there are now in the states. Currently, about half of the states have a similar provision, but their prosecution is on a county-wide basis, and there is no coordination between counties. In Alaska, there is a statewide prosecution system which runs by the same rules and prosecutes by the same laws, and one person is in charge. It is a different situation now, although perhaps there were questions regarding territorial prosecutions versus local prosecutions in territorial days. She said she was guessing. REPRESENTATIVE GREEN said he had speculated that there was a bar because Alaska, as a territory, would have been part of the federal government, and that would be double jeopardy. Now that Alaska is a state, an independent sovereign, it is different. MS. CARPENETI indicated agreement. In response to a question by Representative Rokeberg, she restated that AS 12.20.010, the general statutory bar, was continued from territorial days, whereas AS 11.71.310 is in the drug statutes. She pointed out that her notes say AS 11.71.310 was adopted in 1982, which was when Alaska's drug laws were rewritten and adopted. She offered to research whether AS 11.71.310 was in effect under the state's prior drug laws. Number 1689 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, testified via teleconference from Anchorage. Mr. McCune spoke in opposition to HB 350 due to the issue of double jeopardy, which doesn't allow successive prosecution. Mr. McCune referred the committee to the 1852 case of Moore (ph) v. Illinois and told members that the U.S. Supreme Court had said the federal double jeopardy clause did not prohibit successive state and federal prosecutions. He commented that many of our notions regarding federalism have changed quite a bit. MR. McCUNE referred to Representative Murkowski's comments about the fiscal note and its mention of the federal government's policy; he informed the committee that was alluded to in a more recent 1977 U.S. Supreme Court case, which said, "In response to the court's - meaning the U.S. Supreme Court's - continuing sensitivity to the fairness implications of multiple prosecution power, the Justice Department adopted a policy refusing to bring a federal prosecution following a state prosecution except when necessary to advance compelling interests of federal enforcement." Although there is a lack of federal statute, Mr. McCune stated, it is ameliorated by the strong federal policy against double prosecutions. MR. McCUNE turned to the issue of where the law came from. He related his belief that before statehood, the Alaska Territorial Legislature had adopted all the criminal procedures and criminal laws of the State of Oregon; he believes that is probably where this provision came from. Many Western states have similar statutes on the books; he believes the reason for those statutes is basic fairness as well as economics. If there has been an unsuccessful state prosecution and someone was acquitted, and if there is a compelling federal interest, the federal government sometimes prosecutes, he noted, as happened with the Rodney King case and some others in Alaska. As a matter of fairness and the tradition of the state having this policy, Mr. McCune said he hopes that would continue. Number 1894 CHAIRMAN KOTT pointed out that Mr. McCune, in his fiscal analysis, had noted that several states including Alaska have traditionally prohibited this particular measure. He asked whether Mr. McCune knows how many states that would encompass. MR. McCUNE reported that he had reviewed the legal text book "Constitutional Rights of the Accused," which cites California, Kansas, Nebraska, New Hampshire and New York as all having greater double jeopardy protections in order to minimize the impact of multiple jurisdiction prosecutions. Mr. McCune said he believes that in the World Plus case, the judge cited both Washington and Oregon precedent; therefore, he believes Washington and Oregon could be added to the list of states with a bar like Alaska's in their statutes. Number 1965 REPRESENTATIVE MURKOWSKI referred to the second paragraph of the fiscal note, which states that there is a particular concern with regard to drug cases. She asked why drug cases had been singled out. MR. McCUNE expressed concern because with drug cases, there are many federal drug laws that are very similar to the state laws. If there were many double prosecutions, that would be an area of concern. REPRESENTATIVE JAMES recalled that Mr. McCune had said that [double prosecutions] would create more expense to the Public Defender Agency. She asked what happens if there is a federal case first and a decision, because the Public Defender Agency does not represent the person in the federal case. MR. McCUNE agreed that the Public Defender Agency does not represent people in federal cases. However, if there is an unsuccessful federal prosecution, this law would allow a successive state prosecution for the same act. Number 2062 REPRESENTATIVE JAMES posed a situation in which the federal prosecution fails and the state comes along. She asked if Mr. McCune felt that in such a situation the state would also fail and the money spent in the person's defense would have been for naught. MR. McCUNE answered that the Public Defender Agency would expend the same amount of resources and money whether the person is convicted or acquitted. In fact, the agency probably spends more resources if the person is acquitted. REPRESENTATIVE JAMES said she did not understand Mr. McCune's logic that this legislation would have a fiscal impact on the Public Defender Agency. MR. McCUNE indicated that if the Department of Law's policy or procedure were such that an acquittal in the federal case would cause the state to try the case, such a policy would cause more cases for his agency because the federal acquittal and prosecution would no longer be a bar to subsequent state prosecution. REPRESENTATIVE JAMES asked, then, if Mr. McCune is saying that the state would pick up a case even when the federal prosecution has not made charges because there is a flaw in the federal prosecution. MR. McCUNE indicated he didn't believe that the state would do this lightly. However, there may be some additional cases that would require additional resources. He cited the complicated World Plus case as an example where defending an indigent person would have resulted in expending considerable resources. REPRESENTATIVE JAMES commented that if the state has a case, the Public Defender Agency should not wish to have fewer cases of real infractions simply because it would have a negative effect on the agency's ability to perform them. Number 2204 MR. McCUNE stated that he doesn't believe that the fiscal implications for the Public Defender Agency should be the deciding factor in this committee's consideration of HB 350. He assumes that if the statutes were repealed, the Department of Law would have a similar policy to that currently held by the federal government and thus would not bring a lot of the prosecutions. However, he had wanted to point out in the fiscal note that there may be some cases that do not exist now. REPRESENTATIVE JAMES surmised, then, that Mr. McCune is only indicating it may cost more money but is not disapproving of HB 350 because of that. MR. McCUNE said that is basically correct. He identified the flaw of HB 350 as overturning a great amount of tradition of the Western states. He reiterated that double jeopardy is in the federal and state constitutions because of basic fairness, and therefore changing the statutes goes against that basic fairness. REPRESENTATIVE JAMES concluded that over the last 100 years, the state's sovereignty has been eaten into. She emphasized the importance of that sovereignty. REPRESENTATIVE GREEN indicated agreement. He referred to the first fiscal note, which says passage of HB 350 is expected to result in only a handful of new cases per year, but not enough to cause a fiscal impact on the Department of Law. Representative Green said that this legislation merely removes a bar so if something horrible occurs, then the state can prosecute. As mentioned earlier, the state works very closely with the federal government and thus there probably would not be very many cases. He pointed out that having the ability doesn't necessarily mean it will be utilized each time. REPRESENTATIVE MURKOWSKI related her understanding of the fiscal note prepared by the Public Defender Agency. If the bar to successive prosecutions is eliminated, Mr. McCune suggests that the Department of Law will adopt a policy similar to that of the U.S. Department of Justice; that is, there would be a policy against successive prosecutions. However, in the unusual instance, the state could take steps to address it. REPRESENTATIVE JAMES indicated she believes the state should not be denied its action in egregious cases that affect Alaskans and the people of the United States at the same time. She also agreed that the state should not kick people when they are down. REPRESENTATIVE ROKEBERG asked whether it is logical that two trials cost more than one. MR. McCUNE said that is correct. CHAIRMAN KOTT recognized that clearly the bill moves to full allowance versus full prohibition. If the committee intends to narrow the scope, he indicated they could specify the circumstances. TAPE 00-20, SIDE B Number 0001 REPRESENTATIVE ROKEBERG announced that right now he opposes HB 350 because there is a case under appeal that should be adjudicated before laws are passed. He believes the bill will increase the costs and could allow for prosecutorial abuse regarding an "environmental crime," for example. Furthermore, he believes it is de facto double jeopardy and a matter of fairness. He acknowledged that there is some weight to Representative James' sovereignty argument. CHAIRMAN KOTT noted that there were no additional testifiers. He asked Ms. Carpeneti how HB 350 would affect any open cases where there has been no prosecution yet. Number 0078 MS. CARPENETI answered that if a criminal act is complete, and if there is a federal prosecution, it probably would be a violation of ex post facto to go ahead and prosecute by the state; however, she cannot say that for sure without giving it serious thought. Ms. Carpeneti emphasized that the Attorney General does not intend to start prosecuting people for what other authorities have already prosecuted; however, that ability is desired in cases of extreme public importance and interest. She is sure there would be policies similar to the federal government's that would guide the state regarding when those would be appropriate. MS. CARPENETI said certainly the state won't prosecute drug cases that the federal government is already prosecuting. The state doesn't have the resources, and the department already works with the federal government on these cases. The federal government does a good job on drug cases; sometimes they give cases to the state, and sometimes the two work together. It isn't a concern in terms of being unfair to criminal defendants in Alaska. The purpose of the bill is to prosecute in the unusual case, like the cruise ship case and the pyramid scheme already discussed. Ms. Carpeneti added that about half of the states have a similar statutory bar, but those states have different considerations because their prosecution is based on a more local level than Alaska's, as was discussed earlier. She believes that should be considered when thinking about what other states do in this regard. Number 0173 CHAIRMAN KOTT closed public testimony. REPRESENTATIVE MURKOWSKI remarked that she had talked herself into this. She had sided with Representative Rokeberg until she realized that this will only be used in exceptional cases. Furthermore, she feels more comfortable knowing that the Department of Law hopefully would have a policy that would essentially prohibit or restrict successive prosecutions, although HB 350 contains nothing that would indicate that. She wondered whether it would be appropriate to have a letter of intent to accompany HB 350, which clearly indicates that this would be utilized seldom and only in exceptional circumstances, where there is a greater state interest, and that the policy would complement the U.S. Department of Justice policy, to her understanding of it. CHAIRMAN KOTT agreed it is possible to either forward a letter of intent or include that in AS 11.71.310. REPRESENTATIVE CROFT commented that it is an excellent idea; it would provide an indication of what was thought to future legislatures. Regarding the bill's effect on ongoing prosecutions, he believes the ex post facto constitutional bar of Article I, Section 15, would prohibit application to any acts that had occurred before the effective date; because there is no effective date stated, that would be 90 days from passage. He noted that case law says an ex post facto law is a law passed after the occurrence of a fact or commission of an act which retrospectively changes the legal consequences of the act, which this [bill] would do. Therefore, he doesn't believe anything could be done about the World Plus case or the cruise ship pollution case, nor should that be the ability. Rather, it will just establish it for the future. REPRESENTATIVE JAMES asked if a letter of intent should be drafted before the bill is moved out. CHAIRMAN KOTT stated that with the concurrence of the committee, the letter of intent could be drafted to accompany the bill. Number 0360 REPRESENTATIVE JAMES made a motion to move HB 350, with the letter of intent, as discussed, out of committee with individual recommendations and the attached fiscal notes. There being no objection, HB 350, to be accompanied by a letter of intent, was moved from the House Judiciary Standing Committee,.
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