HSTA - 02/09/95 HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER  Number 438 REPRESENTATIVE CON BUNDE stated he and his aide had worked on this issue for the past three years and he had a sponsor statement that he would pass out to the committee. WALT WILCOX, Committee Aide for State Affairs, announced that the public defender was on teleconference from Anchorage and asked her to identify herself. BARBARA BRINK announced that she was the Deputy Public Defender in Anchorage. She asked if she would have the opportunity to make any comments. MR. WILCOX verified that she would. REPRESENTATIVE BUNDE stated that HB 38 provided for a mandatory 99-year sentence for a specific group of offenders, who have two separate prior Class A or unclassified felony convictions. He said it was called popularly the "Three Strikes" bill, but that had such negative connotations in other states, whose bills were not as carefully drafted, that he would prefer to call it the habitual offender bill. Under this proposed legislation, discretionary parole and good time sentence reductions are not available to offenders who are sentenced to a 99-year term. However, HB 38 does allow the court to reduce a sentence after 50 years have been served, the rationale being that someone that is in for a third felony conviction is probably in their thirties or forties, and by the time they are sixty or seventy years old, they are probably no longer a threat to society. They become very expensive for the state to house and it is frankly good business to allow them to petition to be released at the Governor's discretion. REPRESENTATIVE BUNDE explained that this bill also includes some prosecutorial discretion and flexibility, so that either normal presumptive sentencing can take place, or in a case of weak circumstantial evidence, we can avoid the kinds of things that we hear about, where someone is a lifetime career criminal and then they steal a piece of pizza and are locked up for life as their third offense. He mentioned that he knew there were costs associated with incarcerating someone for 99 years, but this bill was crafted to keep that cost to a minimum. He thought it would actually save the state money in the long run. REPRESENTATIVE BUNDE argued that strong punishment does help to shape behavior and deter crime, and that although it was certainly a goal of the state to rehabilitate people, that some who have proven with a lifetime of crime, that they were beyond or incapable of being rehabilitated. He said there was little left for the legislature to do, except to protect society from these predators who continue to create more victims. He claimed research has shown that the recidivism rate is 65 to 70 percent and it appears that only 5 to 6 people a year would fall under the effect of this legislation. He said there is not a large population of these types of criminals, but there is a significant core of these types of predators. He said these offenders are taking up costly time in the judicial system, to say nothing of the costs to their victims. He felt that if the revolving door of justice was stopped, these types of crimes would decrease. He said we had too many repeat offenders, depending on the goodwill of the people of Alaska. He said that HB 38 would make Alaska a safer place. REPRESENTATIVE BUNDE asked to read a few things into the record from the packets that the committee had received from a group called Crime Strike, a division of the National Rifle Association. He said he wanted to emphasize that Alaska was not immune to the crime wave spreading across our nation, that a woman was raped every 15 hours, someone was robbed every 13 hours, and that in fact, a violent crime was committed in Alaska every 2 hours and 15 minutes. He added they suggested that passage of this bill would help to alleviate the effects of crime on the citizens of Alaska by locking up these incorrigible criminals for life. He further stated that repeat offenders are a serious threat to public safety, according to the National Center for Policy Analysis, the average criminal commits between 187-287 crimes per year. REPRESENTATIVE BUNDE said with the passage of this bill, the threat to the public will be substantially reduced by taking these repeat offenders off the street. He pointed out an accompanying chart which showed that when Alaska's level of incarceration went up, its level of crime went down. He pointed to California as a state that had experience with this type of legislation, and showed statistics which documented that their rate of violent crime went down 7 percent in the first 6 months their bill was in effect. Homicides and robbery were both down 11 percent. He said that the National Center for Policy Analysis reported that it costs taxpayers about $25,000 a year to incarcerate criminals, a nationwide average that Alaska does not achieve unless we send our prisoners outside. He said if the criminal was out on the street committing 187-287 crimes a year, the average cost to society was about $2,300 per crime. Added together, one career criminal could cost Alaska $430,000 annually. He stated California has figured that their "Three Strikes" legislation has saved taxpayers $29.5 billion over 5 years. He said he would be willing to answer any questions. CHAIR JAMES stated she noticed that in fiscal year 1996, there was a note of almost $5 million in contractual fees that doesn't show up afterwards. She also noticed the fiscal note showed that this bill would put an additional 202 prisoners in jail over a period of time. She asked if Representative Bunde could explain the fiscal note and its accuracy. Number 571 REPRESENTATIVE BUNDE stated he had some serious disagreements with the attached fiscal note for HB 38. He said he would point out that they are dramatically larger than the fiscal notes received last year on the same bill. He thought the logic behind this fiscal note had its problems. He stated he would ask the committee to focus on the philosophy of this bill, as he was still gathering information to refute this fiscal note. He said he would like the opportunity to do that in the Finance Committee. He mentioned that he thought the large fiscal note may stem from those who are philosophically opposed to this bill, or there may be some errors in calculation. He said that as he pointed out, there should only be 3 to 5 people incarcerated each year, and there should be zero fiscal impact for the next 10-12 years, because if someone is convicted under this bill, as it would be their third felony conviction, they would be incarcerated for that long under current statute. He thought there were some weaknesses in the calculations for this current fiscal note, and he would like to argue that point after he had finished gathering his information. Number 585 REPRESENTATIVE GREEN stated he was appalled that so few people are responsible for so many crimes. He questioned if the recidivism statistics showed that after someone was caught twice committing a crime, if they became more clever, and so committed a proportionately larger number of crimes before being caught the third time. He said he was concerned there might be a larger number of people out there with two convictions on their record, who might be close to getting convicted under this bill. He stated though, he thought this was a good use of general funds, because as a criminal got more experienced, he figured they committed many more crimes before getting caught the third time. Thus, he figured the cuts to crime will actually be better than the statistics document. REPRESENTATIVE BUNDE agreed, saying he found it appalling that the average criminal commits 200 crimes a year. He commented that equalled almost one crime a day and that was rather busy. He said he could alleviate any concerns that there was this huge population of criminals that would be impacted by this legislation, and pointed out that only unclassified and Class A felonies would fall under this bill. To give an example, he said the type of criminal that would be affected by this would be first-degree murderers, kidnappers, first-degree sexual assault cases, first-degree sexual abuse of a minor, and similar cases. REPRESENTATIVE GREEN asked if there wasn't a different mind set between the hardened criminal who would commit these types of crimes, and the smaller petty criminal, such as the petty thief. Number 628 REPRESENTATIVE PORTER stated he had spent a good part of his life trying to figure that out and came to the conclusion that all of them are different. CHAIR JAMES asked Barbara Brink, the public defender, if she had any comments or questions. Number 635 BARBARA BRINK, Public Defender testified via teleconference from Anchorage and said she had been a public defender in Alaska for 13 years and wanted to share her perspective as to how this bill would affect them. She said this bill would cause increased litigation for the public defender's office in three ways: 1) An individual charged with a third felony, will more likely exercise their right to trial, as opposed to pleading out; 2) she said there would have to be a more extensive look at the two prior convictions to make sure that they are constitutionally valid; and 3) a person charged with a conviction will be more likely to take their case to trial instead of pleading out, as they will not want even the first conviction on their record for fear that it will count towards their allowed total of three convictions. She argued that today, 94 percent of their felony cases do not go to trial, but are pleaded out short of trial. She feared that with this bill, the existing system would collapse on itself because of the increased workload. She said there was dispute as to how many cases this bill would affect. She stated the Criminal Justice Working Group, made up of representatives from all of the criminal justice agencies, believed that prosecution of 10-30 defendants will occur each year. While developing this fiscal note, they had picked 15 cases a year as a fair representation of the projected number that this bill would affect. She said even this small number would consume weeks for the court system. She pointed out that in California, after they passed their "Three Strikes" law, the Los Angeles District Attorney's Office had to shut down numerous departments dealing with environmental law and fraud, to deal with the increased workload from the "Three Strikes" cases. She added the California Judicial Council projected that this law would amount to an extra 17,000 jury trials per year. She also said that many of the civil judges in California had been taken off of the civil bench and reassigned to criminal cases. She thought this was an important lesson for us to learn of the far reaching consequences of this legislation. She said that figures from the FBI and the Bureau of Justice Statistics showed there had not been growth in the overall crime rate over the last two decades. She said the rate of violent crime had actually dropped 22 percent between 1980 and 1992. TAPE 95-12, SIDE B Number 000 MS. BRINK said she wanted to point out that the rate of violent crime among offenders 35 and older has decreased, and that where violent crime is on the increase, is in younger populations which would not be affected by this bill. She said that in Washington State, prosecutors and police officers have observed that since the passage of their "Three Strikes" law, criminals have been showing a scary tendency to be more violent or desperate when they are about to be apprehended. They are more willing to resist arrest, knowing that for that crime, they will spend a lifetime in prison. She also argued that incarcerating a person for life places a much larger management burden, as there is no incentive for good behavior. She also thought that the incarceration of older prisoners forces the release of younger ones, and so the desired result is not a consequence of this bill. She said the largest group of inmates is in the 18- to 24-year-old category and is uneducated and unemployed. They don't have a high school degree and are likely to have been raised by a single parent. They have an income of less than $10,000 a year. Nationwide, more than half of convicted violent offenders were under the influence of drugs or alcohol and she thought that in Alaska, the percentages were probably higher. She said child abuse and neglect increased by 40 percent, the chance that the child will eventually become a criminal. She said these are areas where violent crime could be effectively combatted through education and social policy. Violent crime needs to be prevented, not punished after the fact. She feared the legacy of the "Three Strikes" bill could be that it diverted limited resources away from things that actually could have had a positive effect on our crime rate. Number 089 REPRESENTATIVE BUNDE responded saying he agreed Alaska's violent crime rate has not gone up, but he would argue that the type of violent crime had gone from domestic violence to drive by shootings. He also said the public's perceptions of their vulnerability to violent crime has increased. He thought part of what this bill did was to send a message of support to the average citizen, building their support in the criminal justice system. He thought it was pretty low now, after 40 years of what he said that some would call coddling criminals. He said it was hard for him to imagine and the testimony last year indicated that serious felonies such as this bill affects, are already seriously litigated. He also reminded the committee there was discretion allowed on the part of the prosecutor, and he argued that they would only attempt this route, if they had a sure case. He stated he would also like to remind the committee that this bill is not like the "Three Strikes" legislation of other states that have plugged up their courts, and he could say, at least in the case of New York, they were wanting copies of this bill to use as a starting point for their own "Three Strikes" or habitual offender legislation. Finally, he wanted to remind the committee there were perks in prison, and so he was not convinced by arguments that if you place someone in prison long term, they would not be able to be managed. He said that there were perks for good behavior and so we did not have to let them out early to make them feel good. Number 130 REPRESENTATIVE PORTER wanted to verify whether there was any other testimony. MARGARET BERCK, Attorney and member of the Alaska Chapter of the American Civil Liberties Union, said that in looking at this bill as a trial attorney, she wanted to share her views as to what she thought this bill would mean to the public and criminals in Alaska. She stated she could think of one of her clients that might fit under this legislation, who had been sentenced to 61 years in prison with 20 years suspended. By the time he gets released and is clear of his sentence, he would be 72 years of age. She was concerned that the bill, as currently worded, did not allow for the discretion of either the parole board or the judge to go back and look at someone's sentence until they had served half of it, or 49 1/2 years. She thought the sponsor intended that when the person gets in their sixties or seventies and is unlikely to commit any more crimes, they would be released, so the public would not have to care for them in a costly prison nursing home. She was concerned that there was no provision for going back to the court and requesting a modification of sentence for a rehabilitated prisoner. She pointed out that she had only been successful twice in getting a modification of sentence for any of her clients, and one was for a person diagnosed with terminal cancer. She also expressed concern that this bill would limit the ability of the judiciary, who she thought had acted very responsibly. She also thought the committee should reconsider the position of this bill to force an elderly individual to serve the remainder of their sentence, after they are no longer a threat to society. She was also concerned that this bill would give greater discretionary authority to the prosecutor by forcing up the penalties and making them more mandatory. She pointed out that prosecutors are not elected and so the public has very little control over them. She concluded by saying she agreed with Representative Porter, who she thought was saying that each person was an individual and that bills such as these, took away the discretionary authority of the judiciary to treat each person as an individual and make individual decisions on the people who appear before them. Number 308 REPRESENTATIVE OGAN asked Ms. Berck what she meant when she said she had only one client who would fall under the purview of this bill. MS. BERCK verified that what she meant was she had one client within the last two years, who would fall within the parameters of this bill. REPRESENTATIVE OGAN stated he thought that the fact that this bill was before the committee, was a demonstration of the public perception that criminals get sentenced lightly and are back on the streets creating havoc. He asked if Ms. Berck could offer an alternative solution to this bill that would keep criminals in jail for a longer period of time their first or second offense, and that would satisfy his constituents' demands that the legislature do something about these repeat offenders. Number 355 MS. BERCK said she thought that public perception was possibly skewed by the unusual cases that are publicized in the press. She said she didn't know how to educate the public and she didn't know who was responsible for this education process. She said her response was to not take the discretion away from the judiciary to make those determinations of who should be sent to prison for a long time and who should have the chance of rehabilitation. Number 383 REPRESENTATIVE ROBINSON asked Ms. Berck to explain how in the 1980s we completely revamped our criminal code and put in presumptive sentencing. She wanted to point out that a lot of discretion was taken away from judges a long time ago. CHAIR JAMES commented that she thought the members of this committee were aware of presumptive sentencing, and so asked Ms. Berck to respond quickly in the interest of saving time. MS. BERCK stated that under presumptive sentencing, the criminal code did increase penalties and did erode the discretionary authority of the judges. She said if larger penalties do deter criminals, we should have seen some results from these stiffer penalties of the 1980s, but haven't. CHAIR JAMES stated she wanted to point out that although the level of crime has remained relatively the same, statistics show that there is a difference in the kind of crimes and the people who are committing them. She stated if that were included and we realized that even with this new layer of crimes and criminals, the level of overall crime had stayed the same, then we could safely assume the crime that we had before had decreased as a result of presumptive sentencing. Number 421 REPRESENTATIVE PORTER admitted that his background was going to show on this bill. He said that presumptive sentencing came about as a result of the abuse of judicial discretion. He stated a study had indicated that the judges at that time were sentencing minorities and people of lower economic backgrounds to harsher penalties than those who were not in these categories. He submitted that the average offender would not be affected by this bill, but rather your "John Dillinger" variety of criminal. He thought these people should be sent away for longer periods of time. He argued that the fiscal notes and concerns of the defense bar were driven by the philosophy of what would happen if every opportunity of invoking this legislation were invoked. He said these decisions would be made by the prosecutors. He pointed out there was a history of the habitual offender law in this state which would suggest that these fiscal notes were not correct. He said when he was a police officer, there was a habitual offender law and it was used as a deterrent to persuade some professional criminals to get out of business. He also argued that this type of law does help to turn around the average criminal who gets into a bad pattern, because they feel the threat of being sent away for life. He said that habitual offender legislation has saved a lot of crime and expense in this state, as opposed to causing it. REPRESENTATIVE IVAN asked if there was anyone representing the Department of Corrections. He asked what percentage of the population who had committed these types of crimes were minorities. Number 475 JERRY SHRINER, Special Assistant to the Commissioner, Department of Corrections, said he couldn't answer the question of what percentage of these criminals were minorities. CHAIR JAMES asked that he gather this information and provide it to Representative Ivan. REPRESENTATIVE ROBINSON was curious if we had invited the Department of Law to testify on this bill. CHAIR JAMES responded there was no special guest list; anyone was invited to testify on any bill they wished. She added that the State Affairs committee's overview was to see how these bills would affect the state, and while there probably was some legal questions, she felt very comfortable with letting them be raised in the Judiciary Committee. She said Representative Robinson was free to invite anyone she wished in the future, but this committee did not have a special guest list. She added that generally the sponsor makes many of these invitations or they come on their own. Number 510 REPRESENTATIVE PORTER moved that the committee pass HB 38 with individual recommendations and the attached questionable fiscal notes. CHAIR JAMES asked if there were any objections. Hearing none, the bill was passed to the next committee of referral.