Legislature(1993 - 1994)
02/17/1993 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
Number 308 SGT. VENABLE also mentioned his support for HB 100, Prosecution of Juvenile Felons. Number 314 SERGEANT JAMES LAMOREAUX of the NORTH SLOPE BOROUGH DEPARTMENT OF PUBLIC SAFETY (Villages Unit), testified via teleconference from Barrow. He said that he had seen numerous occasions in which drug traffickers used villagers to sell drugs and launder money, leaving enforcement officials with little ability to prosecute the traffickers themselves. He added that Chief Christensen was not able to be on the teleconference, but requested that Sgt. Lamoreaux convey his full support of HB 43. Sgt. Lamoreaux commented that HB 43 was a very thorough bill and applauded the bill's coverage of only the more serious crimes. Number 360 SGT. LAMOREAUX indicated his support of HB 100 also, saying that it could be implemented in rural areas. He expressed a concern that law enforcement agencies be adequately funded to carry out HB 100's intent. Number 378 RAY BROWN, representing the ALASKA ACADEMY OF TRIAL LAWYERS, testified via teleconference from Anchorage. He said that if HB 43 were expected to be used as an interventional device, it would fail. He stated that most of the applications of a conspiracy law would deal with after-the- fact criminal activity, primarily completed drug conspiracies. (REP. DAVIDSON joined the committee.) Number 419 MR. BROWN commented that California and New York, with significant gang activity, had conspiracy laws that had done nothing to curtail that activity. He expressed his belief that the intentions behind HB 43 were good, but no bill ever passed by Congress had resulted in more prosecutorial abuse and spawned more litigation than the federal conspiracy and RICO (Racketeering Influenced Corrupt Organization) laws. MR. BROWN said that conspiracy laws were bad policy. He cited his objections to the bill from a fiscal standpoint. He noted that there were laws already on the books which covered some aspects of crimes of conspiracy and those statutes were sufficient. Number 430 MR. BROWN, in response to a comment that a conspiracy law would allow more evidence to be presented to a jury, asserted that this was simply untrue. He said a conspiracy law would not give prosecutors any additional tools. He expressed his opinion that HB 43 would spawn multiple- defendant trials, which instead of lasting several days, would last several weeks. He noted that courtrooms in Alaska were not set up for multiple-defendant trials. Number 450 MR. BROWN commented that multiple-defendant trials would require multiple attorneys, creating a tremendous burden on the Office of Public Advocacy to find attorneys willing to work on multiple-defendant cases, particularly in rural areas. He noted that there were not many criminal defense attorneys willing to get involved in multiple-defendant conspiracy litigation. He said this was true in Anchorage, and the problem would be compounded in the Bush. Number 500 MR. BROWN asked the committee to think about HB 43's impact on the state's already overcrowded prisons, given the existing presumptive sentencing laws. He urged the committee to consider both the policy considerations and the potentially staggering fiscal implications of HB 43. Number 569 REP. PHILLIPS asked how a conspiracy law could be so bad if every state in the nation except for Alaska had such a law on the books. She asked Mr. Brown if the few crimes addressed under HB 43 would mitigate against his fear that the bill would result in prosecutorial abuse. Number 582 MR. BROWN said HB 43 would not mitigate against the use of multiple-defendant trials. He stated HB 43 would be better than conspiracy laws in some other states, including Oregon, where a person could conspire to commit a misdemeanor and be convicted of a felony for engaging in a conspiracy. He added that HB 43 would also be better than the federal RICO law. But, he said, HB 43 was still not good policy. MR. BROWN remarked that he did not know if all 49 states had conspiracy laws in place, but he was sure that a significant majority of states did. He mentioned that Alaska had very strong attempt statutes and a very strong accomplice liability statute, which embraced all of the concerns being articulated during the hearing. He cited Alaska's unique privacy law and case law directed toward protecting the rights of others. Number 604 MR. BROWN stated that Alaska did not apply "strict liability" to the same degree that the other states did. He expressed his opinion that it was not necessarily good policy to follow the lead of other states without understanding the complete statutory framework in Alaska as compared to other states. MR. BROWN said the public would suffer tremendously from the fiscal implications of HB 43. Number 649 CHAIRMAN PORTER reiterated Mr. Brown's assertion that Alaska's current criminal statutory framework would limit the gap where the conspiracy law would fit. He asked Mr. Brown why, with that in mind, he still felt that HB 43 would result in a significant fiscal impact. Number 670 MR. BROWN said the fiscal impact would result from HB 43's spawning of multiple-defendant indictments in cases that could not ordinarily be joined for prosecution. He said it would greatly impact the prosecutorial decision to indict in drug cases. Number 688 DEPUTY CHIEF DUANE UDLAND testified in support of HB 43 via teleconference from Anchorage. He stated that he had testified many times over the years on conspiracy laws. He said he was suspicious that some of the fiscal notes for HB 43 were worst-case scenarios. He stated his belief that the high fiscal impact projected by the Office of Public Advocacy and the Public Defender's Office reflected those agencies' belief that HB 43 would be abused. DEPUTY CHIEF UDLAND commented that the arguments against HB 43 reminded him of the arguments made against the recriminalization of marijuana law. He argued that there had been no abuse of the marijuana law, and expressed his opinion that no abuse would result from the conspiracy law, either. He stated his belief that Alaska had a high standard of law enforcement, and that if the law were in fact abused, it would be easily repealed. DEPUTY CHIEF UDLAND said that he felt that the conspiracy law would not be applied in a large number of cases. However, he noted that there were some cases in which it was very appropriate for people to be charged under conspiracy laws. He noted that he had no moral dilemma in supporting a law that would help to take "bad guys" off of the streets. Number 750 REP. PHILLIPS asked Deputy Chief Udland if he recommended that any changes be made to HB 43. Number 753 DEPUTY CHIEF UDLAND replied that he was comfortable with the bill in its present form. Number 759 CHAIRMAN PORTER asked Deputy Chief Udland if he wanted to comment on HB 100. Number 760 DEPUTY CHIEF UDLAND responded that he was happy to see HB 100 introduced. He mentioned that it was the same as last year's HB 101. He cited several other bills in the hopper this year that dealt with juvenile justice issues. He commented that it was timely that the juvenile justice system be reexamined, due to the change in juvenile crimes over the years. Number 770 DEPUTY CHIEF UDLAND stated that he did not believe that HB 100 went far enough. He urged committee members to look to SB 54, which included some automatic waiver rules. Number 781 OFFICER LINDA BRANCHFLOWER, representing the Alaska Peace Officers Association, testified via teleconference from Anchorage in support of HB 43. She stated that the specter of prosecutorial abuse was a red herring. She also echoed Deputy Chief Udland's comments on HB 43. Number 796 OFFICER BRANCHFLOWER said that she concurred with Deputy Chief Udland's comments on HB 100. She recommended replacing the language in HB 100 with that from SB 54. TAPE 93-14, SIDE B Number 017 DEPUTY COMMISSIONER C.E. SWACKHAMMER, from the DEPARTMENT OF PUBLIC SAFETY, testified in support of HB 43. He said that the law would have been applicable to a recent narcotics case in Dutch Harbor. He stated that it was difficult to prosecute all of the individuals involved in that case due to the lack of a conspiracy law. He expressed an opinion that Mr. Brown's testimony included many arguments for passing a conspiracy law. He said he had seen many instances in which complete information could not be presented to a jury due to the occurrence of separate trials. He noted that HB 43 would change that. He added that HB 43 paralleled federal law. Number 069 REP. PHILLIPS asked Deputy Commissioner Swackhammer if he recommended that any changes be made to HB 43. Number 074 DEPUTY COMMISSIONER SWACKHAMMER commented that he did not recommend any changes to the bill. Number 081 JOHN SALEMI, DIRECTOR OF THE PUBLIC DEFENDER AGENCY, said that as a citizen of Alaska he was concerned about public safety. He said that Rep. Phillips' comments about the number of other states that had conspiracy laws on the books reminded him of the phrase, "we don't give a damn how they do it Outside." He expressed his belief that some of the recent criminal law trends were more politics than public safety. He stated that state officials needed to balance the creation of new laws with the state's diminishing revenues. Number 120 MR. SALEMI commented that it was difficult to accurately predict HB 43's fiscal impact on the Public Defender Agency. But, he noted, the conspiracy law would have a distinct impact if it were important to law enforcement officials. He said that in his experience, three to four defense lawyers in a courtroom, plus prosecutors, created a synergistic effect. That effect caused him to think that the use of multiple-defendant trials would not result in a decreased amount of work for the court system, law enforcement, the prosecution, or the defense. Number 140 MR. SALEMI said the Department of Law had taken a different position in past years regarding the fiscal impact of conspiracy laws. Mr. Salemi's impression was that in the past, the Department of Law did not think that the conspiracy law was a priority item with respect to public safety. He stated that the Department of Law's current fiscal note said that the crime of conspiracy would be used as an additional count on a case that would have been prosecuted anyway. Mr. Salemi noted that in that case, it was his opinion that little priority should be given to the conspiracy law, given that its application would cost money. Number 160 MR. SALEMI mentioned that conspiracy prosecutions were expensive. The conspiracy law addressed serious felony cases, he said, and those cases were expensive to prosecute. He commented that conspiracy cases were "bulky" -- i.e., there was a great deal of material to absorb. He noted that multiple-defendant litigation was often very protracted, with lots of pre-trial issues and hearings. MR. SALEMI recalled that past discussion of a conspiracy law included the notion that a conspiracy law would "level the playing field," as if the playing field were now tilted in favor of the defense. He expressed his opinion that the playing field was already level. He also mentioned another past rationale for passing a conspiracy law -- the likelihood that one of the conspirators would turn state's evidence, resulting in a reduced number of trials. Mr. Salemi said that this did occur on occasion, but he believed that it was not, in and of itself, justification for creating the crime of conspiracy in state law. Number 241 MR. SALEMI said that laws which would be calculated to make it easier to deal with defendants should be viewed in the context of due process considerations. He added that changing criminal law rules in piecemeal fashion created the danger of making the system unfair. Number 251 MR. SALEMI cited Deputy Chief Udland's comment that the marijuana recriminalization law had virtually no effect in terms of law enforcement. He said that he had understood that the marijuana law was not going to be a priority for law enforcement. His view was that creating a crime that law enforcement was not going to take seriously and did not have the resources to enforce sent the wrong message to the public. He said his agency did not argue that the marijuana law would have had a distinct fiscal impact. MR. SALEMI apologized for the fact that no explanation was attached to the Public Defender Agency's fiscal note. Number 294 REP. NORDLUND asked if it were possible that a group of people would be charged with conspiracy over an act that they had no intention of committing. Number 304 MR. SALEMI said that it was possible, although unlikely, due to the professional conduct of law enforcement and prosecution officials. Number 315 REP. NORDLUND asked Mr. Salemi if his primary concerns regarding HB 43 were its fiscal impact and its unnecessary nature, due to existing criminal laws. Number 320 MR. SALEMI said that the law did not seem to be a priority of the Department of Law. He noted that the Department of Law had said that it would just add the count of conspiracy to existing cases against defendants. He added that the Department of Law thought that the crime of conspiracy would be useful because of that additional count, and also because it would relax the rules of evidence. He stated that things which law enforcement saw as useful, in terms of gaining a prosecution, could be seen as an erosion of individual rights. He asserted his belief that defendants must be given fair hearings. Number 365 REP. PHILLIPS asked Mr. Salemi if he was accustomed to basing his arguments for or against a bill on that bill's fiscal impact, rather than on the substance of the bill. Number 373 MR. SALEMI responded that it depended on the bill. He stated that he did not play with the numbers on Public Defender Agency fiscal notes to achieve a desired result. He said it was an open question as to how prosecutors would use a conspiracy law. But, he noted, putting a new felony conspiracy law on the books would impact his agency to some degree. He said he felt his fiscal note reflected a conservative approach. Number 398 REP. PHILLIPS expressed her concern that Mr. Salemi's testimony focused on the fiscal impact on HB 43 and not on the substance of the bill. Number 412 CHAIRMAN PORTER commented that if a conspiracy law would cause defendants to turn state's evidence, then he was in favor of it. He mentioned that the Public Defender Agency's fiscal note reflected a 5.3 percent increase in the agency's overall budget. Number 431 MR. SALEMI reiterated his earlier comment that it was difficult to quantify the impact of HB 43 and admitted that his fiscal note was somewhat speculative. He said conspiracy cases were burdensome to litigate from a defense perspective. He explained how his agency had arrived at the figures in the fiscal note, and he understood the Chairman's skepticism. He stated that he felt that his fiscal note was a realistic assessment. Number 465 BRANT MCGEE, DIRECTOR OF THE OFFICE OF PUBLIC ADVOCACY, said he had always been opposed to the conspiracy law. First of all, he felt it was unnecessary. He noted that Deputy Commissioner Swackhammer's Dutch Harbor example was the first instance that he had ever heard of in which individuals involved in a conspiracy to distribute narcotics could not be prosecuted without a conspiracy law. MR. MCGEE commented that conspiracy laws gave law enforcement officials the ability to charge individuals peripherally involved in a conspiracy with the same crime as more involved individuals. He said he had a philosophical disagreement with conspiracy law proponents on this point. He said he had not dealt with conspiracy laws before, but felt that HB 43 ran a significant risk of putting innocent people and peripherally involved people in jail. Number 515 MR. MCGEE mentioned that conspiracy laws had been widely used by federal officials to suppress political dissent and called the laws "the handmaiden of abuse." He noted his concerns over the fiscal impact of HB 43. He said his agency had experienced a 69 percent increase in its caseload since 1988. He stated that the federal conspiracy law had been used successfully in Alaska for some time and wondered aloud why the state was volunteering to prosecute conspiracy when the state could refer cases to federal authorities. MR. MCGEE noted that he saw no demonstrated need for HB 43, although he believed it would be used often. He said putting more lawyers in a courtroom would increase the length of proceedings exponentially. He stated that tying up lawyers in lengthy conspiracy cases would impede the prosecution of the state's other cases. He explained how he had arrived at the figures on his agency's fiscal note, but said no one really knew what would happen if the conspiracy law were enacted. What they did know was that the law would be used and would cost the state money. Number 597 REP. KOTT asked Mr. McGee why the fiscal note showed the cost of HB 43 increasing in later years. Number 603 MR. MCGEE said that his agency was given a "magic percentage figure" every year, applied to each succeeding fiscal year, to reflect inflation and other factors. The higher figures in later years of the fiscal note did not imply that the agency would be shifting more resources to the defense of conspiracy cases, he explained. He said the conspiracy law would cost his agency more in the second and third years because of appeals. He reiterated his belief that it was difficult to estimate the fiscal impact of HB 43. Number 625 REP. KOTT noted that he had not seen other fiscal notes that used the "magic percentage figure." Number 631 REP. PHILLIPS stated that the conspiracy bill had been around for the last six or seven years, and people had testified that it was needed. How then, she asked, could Mr. McGee say that the law was unnecessary. Number 640 MR. MCGEE indicated that the Department of Law had been asked to show cases in which the conspiracy law had been needed, but had not presented any evidence. He added that Deputy Commissioner Swackhammer's example was the first instance that he had heard where a conspiracy law would have enabled law enforcement officials to reach individuals involved in a narcotics ring. Number 649 REP. PHILLIPS said that perhaps today, with the drug activity in Alaska, the point at which a conspiracy law was needed had been reached. Number 652 MR. MCGEE said that Rep. Phillips could be correct. He added that he would not be surprised to see conspiracy laws applied to bootlegging activity as well. However, he said he did not know if a peripherally-involved conspirator should be equally criminally liable with a more involved conspirator. Number 660 CHAIRMAN PORTER said that the Office of Public Advocacy's fiscal note reflected a 7.8 percent increase in its total budget. Number 665 MR. MCGEE said that the reason for the significant fiscal impact was that felony cases were generally the most expensive that his agency handled. Number 671 CHAIRMAN PORTER said that because HB 43 only covered the most serious crimes, and because the law might prevent those crimes from occurring in the first place, and because conspiracy often would just be an additional charge in an existing case, could the fiscal impact actually be lower than his agency had estimated? Number 682 MR. MCGEE said that he could imagine a situation in which an arrest was made on a conspiracy charge prior to a crime being committed or attempted, but thought those situations would be rare. TAPE 93-15, SIDE A Number 000 REP. GREEN called attention to the zero fiscal notes from the Departments of Law and Public Safety, and those agencies' favorable positions on HB 43, and contrasted that with departments opposed to the bill and their high fiscal notes. He questioned the validity of the high fiscal notes. MR. MCGEE said that the figures in his agency's fiscal note did not depend on his position on the substance of a bill. He then reasserted the validity of his HB 43 fiscal note. Number 094 DEAN GUANELI, from the DEPARTMENT OF LAW'S CRIMINAL DIVISION, noted that HB 43 was a priority of the law enforcement community. He cited the U.S. Attorney's continued support for a state conspiracy law. He noted that federal officials successfully used their conspiracy law in Alaska, particularly in drug prosecutions. MR. GUANELI said that a conspiracy bill had passed the Senate the year before, and made its way through two House committees, but died in the final days of the session. He explained that there were various ways in which a person could be prosecuted for a crime, without actually pulling a trigger, but there were gaps in Alaska law. One of those gaps, he said, was conspiracy. He stated that a conspiracy law provided that when two or more people got together, agreed to commit an offense, and one of the individuals subsequently committed some act in furtherance of that agreement, a conspiracy had occurred. A person could be charged with conspiracy even if another crime never actually took place. Number 230 MR. GUANELI said the theory was that planning and agreeing to commit an offense made it more likely that an offense would actually be committed. He stated that conspiracy laws could prevent crimes from occurring, by allowing law enforcement to intervene early on. Number 240 MR. GUANELI commented that multiple-defendant trials resulted in some efficiency and some inefficiency. He noted that defendants did not like multiple-defendant trials because one of the defendants would likely turn state's evidence. He cited the Gustafson mail-bombing case as an example of the usefulness of a conspiracy law. Number 290 MR. GUANELI stated that a conspiracy law would help law enforcement officials get at heads of drug rings. The leaders of those rings kept their hands clean, he said, and did not sell drugs themselves. That made prosecution of the leaders difficult, he added. He mentioned that knocking out one drug ring in Alaska resulted in a significant decrease in the amount of drugs available. MR. GUANELI said a conspiracy law was a useful tool, although it might not be used in a large number of cases. He noted that the Department of Law's fiscal note was based on the assumption that the law would not be employed often. MR. GUANELI responded to Mr. McGee's comment about conspiracy laws being used to suppress political dissent by stating that it was impossible with HB 43, which was limited to certain serious felonies. He asserted the Department of Law's support for the bill, and noted that a conspiracy bill was part of the Governor's crime package last year and would be again this year. Number 358 REP. KOTT stated that he believed HB 43 to be a good bill, but questioned whether the state could afford it. He asked Mr. Guaneli about the comment on the Department of Law's fiscal note about no "significant increase" in the number of cases prosecuted. Number 375 MR. GUANELI replied that his department's fiscal note was zero because he felt that HB 43's impact would be small or entirely speculative. He said his agency received about 5,000 felony cases and about 25,000 misdemeanor cases every year, a certain percentage of which were prosecuted. He stated that he could anticipate approximately 50 to 100 additional cases that would not otherwise be received by his office if a conspiracy law were in place. He indicated that this was a small percentage of the Department's felony caseload and would not justify the addition of personnel. MR. GUANELI stated that HB 43 would not result in a large number of new cases, but might change the way that existing cases were handled. He said HB 43 would give significant advantages to prosecutors. He indicated that the conspiracy law might encourage the resolution of cases prior to a trial, actually saving the Department of Law money. Number 443 CHAIRMAN PORTER said that while HB 43 technically added a new criminal offense to state law, it would prevent crimes that otherwise would be committed and prosecuted by the state. He added that HB 43 would give prosecutors an additional tool. REP. KOTT asked if solicitation and accomplice laws filled the void to some degree. Number 460 CHAIRMAN PORTER said that was true, to a certain extent. Gaps still existed, he noted. He addressed an earlier argument that since federal prosecutors applied the federal conspiracy law in Alaska, it was unnecessary for the state to tackle conspiracy on its own. He mentioned the pending change in the U.S. Attorney in Alaska and the potential altering of the federal/state law enforcement cooperation. Number 479 MR. GUANELI said the federal prosecutors in Alaska had limited resources and therefore would only take certain cases. Number 498 CHAIRMAN PORTER told those present that there wasn't sufficient time to hear HB 97 or HB 100. He apologized for this, but noted there was more testimony on HB 43 than he had anticipated. Both HB 97 and HB 100 were rescheduled for the following week. REP. GREEN asked Mr. Guaneli to tell the committee about the success rate for conspiracy cases that came to trial. Number 523 MR. GUANELI said he did not have the information that Rep. Green requested. However, he noted that a conspiracy law would provide a number of advantages to prosecutors. Number 531 REP. KOTT asked if the testimony on HB 43 could be curtailed and HB 100 taken up, so that those at the teleconference sites could testify. He moved that the committee pass HB 43 out with individual recommendations. Number 541 REP. NORDLUND objected, as the committee had not yet discussed HB 43. He said that it would be premature to pass the bill out at that time. Number 550 CHAIRMAN PORTER said that he anticipated some discussion on HB 43, which was why he had rescheduled HB 97 and HB 100 to the following week.