03/03/1993 09:10 AM Senate FIN

                                                                               
  SENATE BILL NO. 19                                                           
                                                                               
       An Act relating to the crime of conspiracy.                             
                                                                               
  Upon convening the meeting, Co-chair Pearce directed that SB
 be again brought on for  hearing and announced her intent                 
  to move the  bill from committee.   She then referenced  the                 
  following letter of intent from  Senator Halford and advised                 
  of his request that it be adopted:                                           
                                                                               
       It is the  intent of the Senate  Finance Committee                      
       that  law  enforcement   techniques  employed   in                      
       investigations of criminal  conspiracy as  defined                      
       in Senate Bill  19 should  be consistent with  the                      
       protections  against  police  entrapment under  AS                      
       11.81.450.                                                              
                                                                               
  JOHN  SHEPHERD,  aide   to  Senator  Halford,   came  before                 
  committee.  He explained that the above language is intended                 
  to address concerns  raised by  Senators Kelly and  Kerttula                 
  when the bill was previously before committee.  The Dept. of                 
  Law reviewed  existing statutes  relating to  entrapment and                 
  cited the pertinent section in the letter of intent.                         
                                                                               
                                                                               
  Co-chair Pearce directed  attention to new fiscal  notes for                 
  the legislation and explained that  SFC notes reduce numbers                 
  for the Dept. of Corrections, Alaska Court System, Office of                 
  Public Advocacy, and Public Defender Agency to match numbers                 
  provided by the Dept.  of Law in terms of  anticipated cases                 
  that might be brought under  conspiracy law.  She referenced                 
  information in the Dept. of Law  fiscal note indicating that                 
  conspiracy would be included as an additional count in cases                 
  that  would  be prosecuted  anyway.    The  major effect  of                 
  conspiracy  statutes  would  be to  permit  introduction  of                 
  additional evidence at trial.                                                
                                                                               
  Senator  Kelly MOVED  for adoption of  intent language  as a                 
  Senate Finance letter of  intent.  No objection having  been                 
  raised, the Senate Finance letter of intent was ADOPTED.                     
                                                                               
  Senator Rieger directed attention to CSSB 19 (Jud),  page 2,                 
  lines 2-13,  and raised questions  regarding application  to                 
  juveniles  and  mentally  incompetent   individuals.    DEAN                 
  GUANELI,   Chief,   Assistant  Attorney   General,  Criminal                 
  Division, Dept. of Law, came before committee.  He explained                 
  that to be  convicted of a crime under Alaska  law, one must                 
  be  "acting  with  a certain  mental  state"  (acting either                 
  intentionally or  recklessly) when  the crime  is committed.                 
  Certain factors, however, preclude a  jury from finding that                 
  a perpetrator so  acted.  As  an example, Mr. Guaneli  noted                 
  that if the  perpetrator was intoxicated, the jury  would be                 
  justified  in   finding  that   he  or   she  did  not   act                 
  intentionally.                                                               
                                                                               
  Questioned language says that if  one conspires with someone                 
  who is  intoxicated, and the jury finds that the intoxicated                 
  individual  does  not  fall under  legally  required  intent                 
  provisions,  the  conspirator  can  still  be  convicted  of                 
  conspiracy.  Intoxication  of one  of the conspirators  does                 
  not excuse a co-conspirator.                                                 
                                                                               
  Senator Rieger then asked if  an individual could be excused                 
  from being charged with a crime because of his or her mental                 
  state but might not be excused from conspiring.  Mr. Guaneli                 
  reiterated that  an individual  may be  excused if  peculiar                 
  circumstances  surround  the  person's  mental  state,  i.e.                 
  intoxication or incapacity.  Co-conspirators, however, would                 
  not  be similarly excused.  Application  of the mental state                 
  test  is individually based.  One cannot rely upon another's                 
  mental deficiencies to escape a charge.                                      
                                                                               
  Senator Rieger next  asked how the foregoing  examples would                 
  apply  to  those who  are  judged "legally  incapable  in an                 
  individual capacity  of committing  a crime."   Mr.  Guaneli                 
  referred  to  existing  statutory  defenses  based  on  age.                 
  Language in the  proposed bill  says that the  fact that  an                 
  individual  conspires  with  a  juvenile  who is,  by  legal                 
  definition,  incapable  of  committing the  crime  does  not                 
                                                                               
                                                                               
  excuse  the  conspirator.    An  individual is  not  excused                 
  because he or she hires a juvenile to commit a crime.                        
                                                                               
  Senator Rieger  then asked  if  the language  would work  in                 
  reverse.  If a juvenile conspires  with an older person does                 
  the  juvenile  lose  that defense?    Mr.  Guaneli responded                 
  negatively.  He  explained that the  defense is personal  to                 
  the juvenile.   Since the juvenile is  of an age that cannot                 
  legally commit the crime,  he or she would not  be guilty of                 
  conspiracy.                                                                  
                                                                               
  Senator Rieger suggested that language within subsection (c)                 
  (page 2, line 2)  states that "It is not a  defense that the                 
  defendant belongs  to a  class of  persons  who are  legally                 
  incapable   of   committing   the  crime."      Mr.  Guaneli                 
  acknowledged  need  to review  the  language in  relation to                 
  existing law.                                                                
                                                                               
  Co-chair  Pearce asked if Senator  Rieger wished to hold the                 
  bill  for  future   amendment.    Senator   Rieger  answered                 
  affirmatively.   He advised  that his  first reading  of the                 
  bill  highlighted  potential  for  inadvertent inclusion  of                 
  juveniles who conspire  with adults.  The  Co-chair directed                 
  that SB  19 be HELD  in committee.   She further  asked that                 
  Senator Rieger prepare his amendment for presentation at the                 
  Friday  committee meeting.  Senator Rieger  said he would do                 
  so.   He voiced support for the  legislation and said it was                 
  not his intent to hold it.   The apparent loophole, however,                 
  should be closed.