Legislature(1993 - 1994)

02/17/1993 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        February 17, 1993                                      
                            1:00 p.m.                                          
  MEMBERS PRESENT                                                              
  Rep. Brian Porter, Chairman                                                  
  Rep. Pete Kott                                                               
  Rep. Gail Phillips                                                           
  Rep. Joe Green                                                               
  Rep. Cliff Davidson                                                          
  Rep. Jim Nordlund                                                            
  MEMBERS ABSENT                                                               
  Rep. Jeannette James, Vice-Chair                                             
  COMMITTEE CALENDAR                                                           
  HB 43:    "An Act relating to the crime of conspiracy."                      
            MOVED OUT OF COMMITTEE                                             
  HB 97:    "An Act clarifying the responsibilities of the                     
            Department of Health and Social Services and                       
            parents for children who are committed to the                      
            custody of the department and are placed by the                    
            department with the parents; and providing for an                  
            effective date."                                                   
            NOT HEARD                                                          
  HB 100:   "An Act relating to criminal charges brought                       
            against minors."                                                   
            NOT HEARD                                                          
  WITNESS REGISTER                                                             
  CHIEF RON OTTE                                                               
  Alaska Association Chiefs of Police                                          
  423 South Valley                                                             
  Palmer, Alaska 99645                                                         
  Phone:  745-4811                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  VIRGINIA PHILLIPS                                                            
  404 Lake Street #2-D                                                         
  Sitka, Alaska 99835                                                          
  Phone:  747-8024                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  CHIEF TOM WALKER                                                             
  Seward City Police Department                                                
  P.O. Box 167                                                                 
  Seward, Alaska 99664                                                         
  Phone:  224-3338                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  GREG VENABLE                                                                 
  North Slope Borough                                                          
  Public Safety Department                                                     
  P.O. Box 470                                                                 
  Barrow, Alaska 99723                                                         
  Phone:  852-6111                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  JAMES LAMOREAUX                                                              
  North Slope Borough                                                          
  Public Safety Department                                                     
  P.O. Box 470                                                                 
  Barrow, Alaska 99723                                                         
  Phone:  852-6111                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  RAY BROWN                                                                    
  Alaska Academy of Trial Lawyers                                              
  510 L Street                                                                 
  Anchorage, Alaska 99501                                                      
  Phone:  277-5400                                                             
  Position Statement:  Opposed HB 43                                           
                       (testified via teleconference)                          
  DUANE UDLAND                                                                 
  Anchorage Police Department                                                  
  4501 South Bragaw                                                            
  Anchorage, Alaska 99507                                                      
  Phone:  786-8557                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  LINDA BRANCHFLOWER                                                           
  Alaska Peace Officers Association                                            
  P.O. Box 100222                                                              
  Anchorage, Alaska 99510                                                      
  Phone:  786-8819                                                             
  Position Statement:  Supported HB 43                                         
                       (testified via teleconference)                          
  C.E. SWACKHAMMER                                                             
  Deputy Commissioner                                                          
  Department of Public Safety                                                  
  P.O. Box 111200                                                              
  Juneau, Alaska 99811-0200                                                    
  Phone:  465-4322                                                             
  Position Statement:  Supported HB 43                                         
  JOHN SALEMI, Director                                                        
  Public Defender Agency                                                       
  900 West Fifth Avenue, Suite 200                                             
  Anchorage, Alaska 99501-2090                                                 
  Phone:  279-7541                                                             
  Position Statement:  Answered questions on HB 43                             
  BRANT MCGEE, Director                                                        
  Office of Public Advocacy                                                    
  900 West Fifth Avenue, Suite 525                                             
  Anchorage, Alaska 99501-2090                                                 
  Phone:  274-1684                                                             
  Position Statement:  Opposed HB 43                                           
  DEAN GUANELI                                                                 
  Assistant Attorney General                                                   
  and Criminal Division Administrator                                          
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska 99811-0300                                                    
  Phone:  465-3428                                                             
  Position Statement:  Supported HB 43                                         
  GAYLE HORETSKI                                                               
  Committee Counsel                                                            
  House Judiciary Committee                                                    
  State Capitol, Room 120                                                      
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-4990                                                             
  Position Statement:  Answered questions on HB 43                             
  PREVIOUS ACTION                                                              
  BILL:  HB  43                                                                
  SHORT TITLE: CRIME OF CONSPIRACY                                             
  SPONSOR(S): REPRESENTATIVE(S) PORTER,Phillips,Olberg,B.Davis                 
  TITLE: "An Act relating to the crime of conspiracy."                         
  JRN-DATE    JRN-PG                     ACTION                                
  01/11/93        35    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/11/93        35    (H)   STATE AFFAIRS,JUDICIARY,FINANCE                  
  01/18/93       102    (H)   COSPONSOR(S): OLBERG                             
  02/02/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/02/93              (H)   MINUTE(STA)                                      
  02/03/93       223    (H)   COSPONSOR(S): B.DAVIS                            
  02/04/93              (H)   STA AT 08:00 AM CAPITOL 102                      
  02/06/93              (H)   MINUTE(STA)                                      
  02/08/93       250    (H)   STA RPT  2DP 2NR                                 
  02/08/93       250    (H)   DP: VEZEY, SANDERS                               
  02/08/93       250    (H)   NR: ULMER, G.DAVIS                               
  02/08/93       250    (H)   -2 FNS (ADM, ADM)  2/8/93                        
  02/08/93       250    (H)   -ZERO FISCAL NOTE  (DPS)  2/8/93                 
  02/17/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  BILL:  HB  97                                                                
  TITLE: "An Act clarifying the responsibilities of the                        
  Department of Health and Social Services and parents for                     
  children who are committed to the custody of the department                  
  and are placed by the department with the parents; and                       
  providing for an effective date."                                            
  JRN-DATE    JRN-PG                     ACTION                                
  01/29/93       177    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/29/93       178    (H)   HES, JUDICIARY, FINANCE                          
  02/08/93              (H)   HES AT 03:00 PM CAPITOL 106                      
  02/08/93              (H)   MINUTE(HES)                                      
  02/10/93       288    (H)   HES RPT  7DP  2NR                                
  02/10/93       288    (H)   DP: BUNDE, G.DAVIS, TOOHEY,                      
  02/10/93       288    (H)   DP: NICHOLIA, B.DAVIS, BRICE                     
  02/10/93       288    (H)   NR:  KOTT, VEZEY                                 
  02/10/93       289    (H)   -ZERO FISCAL NOTE  (DHSS)                        
  02/17/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  BILL:  HB 100                                                                
  SHORT TITLE: PROSECUTION OF JUVENILE FELONS                                  
  SPONSOR(S): REPRESENTATIVE(S) BUNDE,Green                                    
  TITLE: "An Act relating to criminal charges brought against                  
  JRN-DATE    JRN-PG                     ACTION                                
  01/29/93       178    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/29/93       178    (H)   HES, JUDICIARY                                   
  02/03/93       224    (H)   COSPONSOR(S): GREEN                              
  02/05/93       240    (H)   HES WAIVED 5-DAY  HEARING                        
                              NOTICE,RULE 23                                   
  02/08/93              (H)   HES AT 03:00 PM CAPITOL 106                      
  02/08/93              (H)   MINUTE(HES)                                      
  02/10/93       289    (H)   HES RPT  5DP  1DNP  2NR                          
  02/10/93       289    (H)   DP:  KOTT, VEZEY, BUNDE, TOOHEY,                 
  02/10/93       289    (H)   DNP: NICHOLIA                                    
  02/10/93       289    (H)   NR:  G.DAVIS, BRICE                              
  02/10/93       289    (H)   -2 FNS (ADM, ADM)  2/10/93                       
  02/10/93       289    (H)   -2 ZERO FNS (DPS, DHSS)  2/10/93                 
  02/10/93       289    (H)   REFERRED TO JUDICIARY                            
  02/17/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  ACTION NARRATIVE                                                             
  TAPE 93-14, SIDE A                                                           
  Number 000                                                                   
  CHAIRMAN PORTER called the House Judiciary Committee meeting                 
  to order at 1:15 p.m. on February 17, 1993.  A quorum was                    
  HB 43:  CRIME OF CONSPIRACY                                                  
  CHAIRMAN PORTER said that HB 43 was the first item before                    
  the committee.  As the sponsor of the bill, the Chairman                     
  made a brief opening statement regarding HB 43.  He then                     
  turned to witnesses in Juneau and in the teleconference                      
  sites.  He said that Chief Richard Ross from Kenai had                       
  intended to testify, but had a last-minute conflict.                         
  Chairman Porter noted that the Chief had sent a letter                       
  supporting HB 43, which the committee members had before                     
  Number 066                                                                   
  CHIEF RON OTTE of the PALMER POLICE DEPARTMENT testified via                 
  teleconference from Wasilla.  He said that for many years,                   
  Alaska law enforcement chiefs had supported conspiracy                       
  legislation.  However, efforts to enact conspiracy laws had                  
  never been successful.  He noted his belief that Alaska was                  
  the only state in the nation that did not have a conspiracy                  
  law on the books.                                                            
  CHIEF OTTE said that there was fear that an Alaska                           
  conspiracy law would be abused by law enforcement officials.                 
  He stated that HB 43 addressed those fears by limiting                       
  conspiracy to serious felony offenses.  He noted that HB 43                  
  took a sensible approach to implementing a conspiracy law in                 
  CHIEF OTTE mentioned many instances in which the police had                  
  opportunities to intervene before crimes were actually                       
  committed, but were unable to do so due to the lack of a                     
  conspiracy law.  He added that Alaska desperately needed a                   
  conspiracy law, and that the law would not be abused.  He                    
  urged the committee to pass the bill.                                        
  Number 134                                                                   
  VIRGINIA PHILLIPS testified via teleconference from Sitka.                   
  She told the committee that she had formerly lived in West                   
  Virginia, where she was a volunteer at a minimum security                    
  prison.  She added that she had a degree in criminal                         
  justice.  She said that she was shocked to find out, in the                  
  early 1980s, that Alaska did not have a conspiracy law.  She                 
  asserted her belief that Alaska needed to define and punish                  
  the crime of conspiracy.                                                     
  Number 181                                                                   
  (Rep. Nordlund joined the committee.)                                        
  Number 192                                                                   
  CHIEF TOM WALKER of the SEWARD POLICE DEPARTMENT, testified                  
  in support of HB 43 via teleconference from Seward.  He said                 
  HB 43 would bring Alaska in line with all of the other                       
  states in the nation with regard to the crime of conspiracy.                 
  He noted the difficulty of convicting criminals who were not                 
  "smoking gun participants," as in murder-for-hire cases.                     
  CHIEF WALKER said a conspiracy law would also be helpful in                  
  drug enforcement.  He told the committee that under present                  
  law, a hand-to-hand purchase of a controlled substance had                   
  to occur before a person could be charged with the sale of a                 
  controlled substance.  He stated that the organizers, the                    
  money launderers, and the investors were effectively immune                  
  from prosecution.  He noted that HB 43 would allow law                       
  enforcement officials to charge these individuals with a                     
  Number 240                                                                   
  CHIEF WALKER mentioned the increase in organized crime and                   
  gang activity in Alaska and the necessity of a conspiracy                    
  law to effectively confront that increase.                                   
  Number 250                                                                   
  REP. PHILLIPS asked Chief Walker for some examples of how                    
  HB 43 would deter the increase in gang activity.                             
  Number 256                                                                   
  CHIEF WALKER mentioned gangs' participation in crack cocaine                 
  distribution and in drive-by shootings.  He said the leaders                 
  of these gangs were rarely charged with crimes.  However, he                 
  noted that with a conspiracy law, law enforcement officials                  
  could not just go after isolated crimes, but entire crime                    
  Number 280                                                                   
  SAFETY DEPARTMENT, testified via teleconference from Barrow                  
  that there was a void in the prosecution of narcotics crimes                 
  due to the lack of a conspiracy law.  He said he supported                   
  HB 43 100 percent.  He added that he concurred with previous                 
  testimony regarding gang activity and murder.                                
  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                             
  (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                                                                   
  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                                                                   
  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                        
  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                                                                   
  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                     
  Number 660                                                                   
  CHAIRMAN PORTER said that the Office of Public Advocacy's                    
  fiscal note reflected a 7.8 percent increase in its total                    
  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                      
  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.                                                          
  Number 561                                                                   
  REP. NORDLUND expressed trepidation about HB 43.  He said he                 
  believed it to be very important that law enforcement have                   
  tools to prosecute people who committed controlled substance                 
  crimes, but noted his fear that people who never intended to                 
  commit a crime might be convicted of conspiracy.  He said he                 
  found nothing in HB 43 that indicated a level of judgment                    
  required to assess whether an individual truly intended to                   
  commit a crime.  He commented that he was apprehensive about                 
  potential abuses of a conspiracy law.                                        
  Number 605                                                                   
  COMMITTEE, addressed Rep. Nordlund's concerns.  She said                     
  that the bill, as currently drafted, held that in order for                  
  any person to be guilty of conspiracy there must be three                    
  specific elements.  The first element was a specific intent                  
  to promote or facilitate a serious felony offense.  The                      
  second element was that an offender agreed with at least one                 
  other person to engage in or cause the furtherance of the                    
  crime.  The third element was that one of the individuals in                 
  the group must carry out an overt act in furtherance of the                  
  conspiracy.  All three elements were required to add up to a                 
  conspiracy, she noted.                                                       
  MS. HORETSKI commented that cases where the parties were                     
  only "joking" would not be prosecuted very far, if at all,                   
  due to the law's clear requirement of the three elements.                    
  REP. NORDLUND expressed a concern that all individuals                       
  involved in a conspiracy could be charged with the same                      
  serious felony, regardless of their role in that conspiracy.                 
  CHAIRMAN PORTER commented that, under existing law, a                        
  peripheral participant in a crime, who was fully                             
  knowledgeable about the crime that she or he was helping to                  
  commit, was as guilty as any of the other participants in                    
  the crime.                                                                   
  Number 692                                                                   
  REP. NORDLUND mentioned a situation in which a crime was to                  
  be committed, yet not all of the participants were aware of                  
  the extent of the crime to be committed.  He said he feared                  
  that a person who unknowingly participated in a conspiracy                   
  would be charged with the same crime as the ringleaders of                   
  the conspiracy.                                                              
  Number 709                                                                   
  CHAIRMAN PORTER said that each element of a crime had to be                  
  proved beyond a reasonable doubt.  One of the elements of                    
  conspiracy, he added, was the intent to conspire to commit                   
  one of the crimes addressed in HB 43.  He said Rep.                          
  Nordlund's example would provide a perfect defense for a                     
  person who unwittingly participated in a conspiracy.                         
  Number 726                                                                   
  MR. GUANELI pointed out that under the crime of conspiracy,                  
  a person had to intend to facilitate the particular serious                  
  felony.  He added that the burden was on the prosecution to                  
  prove that specific intent existed.                                          
  Number 756                                                                   
  REP. GREEN said that someone had called Mr. Brown's comments                 
  a worst-case scenario, and asked that someone provide a                      
  scenario that did not portend disaster.  He noted that Mr.                   
  Brown had brought up more than a dozen negative issues                       
  surrounding HB 43, and said Mr. Brown's testimony was                        
  probably more opinion than fact.                                             
  Number 800                                                                   
  CHAIRMAN PORTER noted Mr. Brown's assertion that it would be                 
  difficult to find criminal defense lawyers willing to work                   
  for $50 per hour.  He countered that if the court required a                 
  lawyer to take a case, the lawyer would have to be paid a                    
  standard wage.                                                               
  CHAIRMAN PORTER said that it was a matter of perception as                   
  to what had happened with conspiracy laws in other states as                 
  compared to what might happen if Alaska had a conspiracy                     
  law.  He stated that the same arguments presented against HB
  43 were presented against the marijuana recriminalization                    
  law.  He said it was clear that the law enforcement                          
  community had never intended to arrest every teenager                        
  possessing a joint of marijuana.  Their desire was to clear                  
  up confusion about why marijuana was legal if its use was                    
  wrong.  He said that he viewed the arguments against HB 43                   
  in the same light.                                                           
  TAPE 93-15, SIDE B                                                           
  Number 000                                                                   
  CHAIRMAN PORTER reiterated his belief that HB 43 was a good                  
  tool that would be used in isolated cases, particularly for                  
  prevention.  He added that some of the crimes addressed by                   
  the conspiracy law were more likely to occur in places where                 
  there was a lot of money, like Alaska.  Secondly, those                      
  types of crimes occurred less often in areas with the                        
  reputation for being fully equipped to combat them.                          
  Number 037                                                                   
  REP. NORDLUND said he was concerned about the debate over                    
  HB 43's fiscal impact on the state.  He noted that most of                   
  the agencies, with the exception of the Department of Law,                   
  were indicating that the bill would have a fiscal impact.                    
  He said he thought that Mr. Guaneli's explanations of the                    
  Department of Law's fiscal note were good, but he still had                  
  some difficulty accepting a zero fiscal note from them.  He                  
  stated that he felt it was appropriate for the Finance                       
  Committee to analyze the discrepancies among the fiscal                      
  Number 070                                                                   
  CHAIRMAN PORTER commented that he intended to write a letter                 
  of intent expressing the committee's concern about fiscal                    
  notes attached to HB 43.  He expressed his own concern over                  
  fiscal notes provided by the Office of Public Advocacy and                   
  the Public Defender Agency.                                                  
  Number 093                                                                   
  REP. NORDLUND removed his objection to Rep. Kott's motion to                 
  pass out HB 43.                                                              
  Number 095                                                                   
  REP. KOTT commented that the concern over the fiscal notes                   
  was a point well taken and would be addressed by the Finance                 
  Number 104                                                                   
  CHAIRMAN PORTER, hearing no objection, ordered that HB 43 be                 
  moved out of committee with individual recommendations, and                  
  with a letter of intent.                                                     
  CHAIRMAN PORTER adjourned the meeting at 3:28 p.m.                           

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