HOUSE BILL NO. 350 An Act repealing the statutory bars to the State of Alaska's prosecution of a criminal act that resulted in a conviction or acquittal by the United States, another state, or territory. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, explained that the bill would allow the State of Alaska to prosecute and punish an offender for a crime that has been prosecuted by the federal government or by another state. She noted that since early Statehood, the State of Alaska has had statutory prohibitions on the prosecuting and punishing a person, including a corporation, for an act that another jurisdiction has already prosecuted. The policy is not based on constitutional law; the State and federal constitutional prohibitions against being placed twice in jeopardy for the same act do not prohibit separate jurisdictions from separately prosecuting, and punishing the same act under different bodies of law. Ms. Carpeneti added that recent events have suggested a reconsideration of the policy. The federal prosecution of a cruise ship company for illegally discharging water polluted with oil and hazardous waste into our waters demonstrate that the harm suffered by the State should have been addressed in a separate prosecution. HB 350 will allow Alaska to prosecute an offender if a similar situation should arise. She noted that two cases have arisen in the last two years. The first was with the Royal Caribbean Cruise Line. The federal government prosecuted it under environmental criminal laws with a fine of $1800 dollars. In that case, Alaska did have substantial interest in litigating rights as a State and was unable to do so. The second example is the Raging Bond case. Ms. Carpeneti noted that woman defrauded people out of millions of dollars and was criminally prosecuted by the federal government for the scheme itself. Later the State prosecuted her for securities violations. The State is appealing that case. HB 350 would repeal the statutes that prohibit the State from prosecuting cases such as these. Co-Chair Mulder asked if the State has the ability to prosecute under civil law. Ms. Carpeneti acknowledged that they did. She noted that there is a civil settlement. In response to suggestions by Co-Chair Mulder, Ms. Carpeneti disagreed noting that the civil resolution of a case is very different from a criminal resolution. A civil resolution is done mainly to pay back the losses rather than to punish people who violate our criminal laws in the State. The settlement was for $3.5 million dollars which is not nearly the amount that could have been pursued in a criminal fine. She added that the State could pursue fines in many other categories with the Royal Caribbean Line through the proposed legislation. Co-Chair Mulder referenced the fiscal note from the Public Defenders Agency. He asked why Alaska has had a long- standing bar against excessive prosecution. Ms. Carpeneti replied that it is unknown why that statute was adopted at statehood. It is assumed that Alaska's statutes were borrowed from other western states. Prosecution in those states is on county by county basis, whereas, Alaska has a statewide prosecution system. It is more important to clarify that one county can not prosecute a criminal act. The purpose of the bill is to address where Alaska's interest has not been vindicated. Co-Chair Mulder suggested that removing the bar would not provide assurance that the proposed change would not allow for a multitude of prosecuting at both the federal and State level. Ms. Carpeneti pointed out that there is a Letter of Intent forwarded from the House Judiciary Committee, which clarifies that concern. Co-Chair Mulder argued that he did not see a compelling reason why a case would need to be prosecuted at both the State and federal level. Ms. Carpeneti replied that in some cases, there isn't a "compelling" reason and the State should not prosecute. The State works with the federal government on drug cases all the time. There is never a particular reason in those cases. In certain situations as the two listed above, there is an interest which the State should have been able to pursue. Co-Chair Mulder disagreed. He questions the reason for sticking the State law on those victims for expanded latitude. Ms. Carpeneti replied that civil penalties are part of the cost of "doing business" for most corporations. Criminal penalties are more serious and are a punishment for behavior that is a crime. The ability to prosecute somebody criminally is an important legal ability. Co-Chair Mulder asked if it was such a compelling interest to pursue the Royal Caribbean Cruise Line, why did the State not work with the federal government. Ms. Carpeneti stated that we could have done that, but that does not mean that they would not have prosecuted on their own. Representative J. Davies asked if there was a general bar limitation on double jeopardy between the State and the federal government. He noted that the legislation would provide the State the same latitude which the federal government currently has. Ms. Carpeneti noted that the double jeopardy provision does prohibit the same governmental authority from prosecuting the same act again. It would prohibit the municipality from prosecuting the same act as they derive their source of power from the same State power latitude that is available to the federal government. The federal government does not have a provision like that proposed in HB 350; however, the feds do have guideline provisions. Vice Chair Bunde asked if there was a retroactive portion to the legislation. Ms. Carpeneti stated there was not. Representative Bunde asked if there was an interconnection with the finding impacts on activities outside Alaska. Ms. Carpeneti explained that there was a $18 million dollar criminal fine that would remain separate. Representative Bunde asked if the legislation would be considered a "money maker" for the State. Ms. Carpeneti replied that would be going too far; she noted that the State has interest in "justice" which moves beyond "money". Representative J. Davies referenced the Judiciary Letter of Intent. He recommended incorporating the intent language into statute. Ms. Carpeneti advised that inclusion of that language in statute would make the Department responsible for litigating that issue in every case. She recommended language which would specify that the federal government require the Attorney General or that designee approval, subsequent prosecutions which the Legislature could consider. Co-Chair Therriault asked about the federal perimeters regarding whether lawful action is covered. Ms. Carpeneti replied that is an attorney general policy currently in federal law. Co-Chair Therriault commented that there had been criticism that the Department of Law was remiss in addressing the two above-mentioned cases. He questioned why the State had not undertaken the case first, and then the State could have prosecuted and the federal government could have made their decision after. He questioned the "motivator" for the legislation. Ms. Carpeneti offered to provide more information to the Committee regarding that concern. Representative J. Davies questioned if the underlining premise was correct in that, if the State "gets into the case first", then the statutes would not take affect. Ms. Carpeneti commented that the statutes state that the State can not prosecute if a person has been convicted or acquitted of charges. Representative J. Davies asked the time cut off. Ms. Carpeneti replied that she did not know. Co-Chair Mulder pointed out that these cases had compelling State interest. He asked why the State had not prosecuted these cases first before the federal government. Ms. Carpeneti reiterated that she would provide that information. Representative Grussendorf added that the idea of having criminal laws regarding these concerns, indicates to those parties guilty that they can not do something for fear that they will be criminally charged. He maintained that the civil charge is only the cost of "doing business". Representative Grussendorf emphasized that it would be in the State's best interest to impose the criminal repercussions. HB 350 was HELD in Committee for further consideration.