Legislature(1993 - 1994)
02/09/1994 01:34 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATOR TAYLOR introduced SB 234 (LIFE SENTENCE:SOME 3RD FELONY OFFENDERS) to committee and invited PORTIA BABCOCK to review the bill, sponsored by SENATOR LOREN LEMAN. MS. BABCOCK said SB 234 was commonly known as "three strikes and you're out." She noted that DEPUTY ATTY. GENERAL EDWARD MCNALLY from the Department of Law and JERRY LUCKHAUPT, the drafting attorney from Legislative Legal Counsel, would also be testifying on SB 234. MS. BABCOCK explained the court will be required to sentence a defendant convicted of a most serious felony to a mandatory 99 year prison term without the opportunity for parole, when the defendant has been previously convicted of at least two other "most serious" felonies. According to recent U.S. studies, MS. BABCOCK cited statistics showing recidivism as being extremely high for third timers, with a projection of a 76% chance of additional criminal behavior for habitual offenders. She stated statistics today in the United States show convicted felons serve an average of 25% of their sentences; 60% of prison inmates have been behind bars before, and 44% were on probation or parole when rearrested. MS. BABCOCK continued her statistics by estimating that 6% of criminals in the United States have committed nearly 70% of the violent crimes, and she claimed SB 234 would target most habitual offenders, a small but deadly group of individuals. By using statistics from Washington State, MS. BABCOCK estimated the fiscal impact will be a .01% increase in the Department of Correction's budget. MS. BABCOCK said she was still collecting information from other states on their habitual offender laws to work out what is comparable to SB 234, and she explained California presently has an initiative in the process. She also explained SENATOR LEMAN had introduced the bill because he thought it was important a small percentage of repeat offenders, and those with high recidivism rates, should be put away. Number 219 SENATOR JACKO asked how much it would change the way the State treats these offenders and whether the courts presently take into consideration recidivism. MS. BABCOCK said she would refer his question to MR. MCNALLY, but she thought priors would go into effect. SENATOR JACKO asked if the courts were prevented from doing this now, and MS. BABCOCK said it would be mandatory. SENATOR DONLEY asked if the bill would prohibit any good time deduction, and MS. BABCOCK said that it would. SENATOR DONLEY wanted to see the section of the bill prohibiting good time deductions, and MS. BABCOCK referred him to page 5, Section 9, lines 10 through 11. SENATOR TAYLOR declared it was a death sentence. MS. BABCOCK agreed, and said the only option would be clemency by the governor. SENATOR DONLEY said he was trying to understand how it would dovetail with previous legislation dealing with mandatory sentencing, with no good time deduction. SENATOR TAYLOR suggested MR. MCNALLY or MR. CHENOWETH would be able to explain how it would work. MS. BABCOCK asked MR. LUCKHAUPT, who drafted the bill, to come forth to answer SENATOR DONLEY'S questions. Number 260 SENATOR DONLEY referred to Section 9 in SB 234, which removed the applicability of good time, but above Section 9, he found a listing of two other statutes and wondered why the legislation was drafted this way. SENATOR LITTLE referred to the combined fiscal notes for the Department of Corrections and the Department of Law as being over a $100 million. MS. BABCOCK said she had been working with the Department of Corrections since SENATOR LEMAN disagrees with the amount of the fiscal notes. She explained the persons who would be incarcerated have all ready spent lengthy periods in prison, and she thought being put away for life was less expensive than the cost of numerous incarcerations by one person. MS. BABCOCK said the State of Washington has a much smaller forecast of their costs, and she was trying to workout their disagreement with Corrections. SENATOR LITTLE reviewed some statistics from the report from the Department of Corrections on the number of serious felonies, which would amount to about 200 offenders currently in prison. She thought that would be a substantial cost. MS. BABCOCK said most of that cost would be further down the road, because most of these offenders are all ready in the system. She predicted the percentage of increase would be a small impact on the cost. Number 312 SENATOR TAYLOR explained DIANE SCHENKER from the Department of Corrections could address the fiscal notes much more accurately. A general discussion centered around page 7 of the fiscal note which showed total additional expenses of $100,438,205. The explanation suggested the expenses would be $2,183,439 for additional operating and capital expenditures per year, every year from FY95 through FY41. SENATOR DONLEY reviewed the process by which a offender receives a mandated sentence of 99 years using the list of felonies and convictions given in the bill, and he questioned how these offenses would be triggered. MS. BABCOCK explained the defendant must have two of the three most serious felonies, with the third one a most serious felony, which leaves one of the three felonies a lesser type of felony. SENATOR TAYLOR thanked MS. BABCOCK and called on the bill drafter, JERRY LUCKHAUPT to answer questions from SENATOR DONLEY. SENATOR DONLEY referred to a previous meeting on first degree murder issues in which members were told of provisions to prevent good time from applying to certain mandatory sentences for first degree murder, to ask if he understood correctly. MR. LUCKHAUPT said it was his recollection that good time earned on the mandatory 99 year sentences is currently available, but wouldn't have much impact on the time to serve. SENATOR DONLEY asked about the good time application for the minimum 20 year sentences, and MR. LUCKHAUPT said it was available to the extent the judge decides not to make it available. He explained the judge could limit the parole eligibility. SENATOR DONLEY repeated his question as to whether the good time provision was applicable to the 20 year sentences, and MR. LUCKHAUPT thought it was currently available to all sentences basically in statute now. MR. LUCKHAUPT again explained the judge could limit the parole eligibility but not the good time provision. SENATOR DONLEY thanked MR. LUCKHAUPT for the confirmation of his understanding about the good time provision, and referred to Section 8 in SB 234, where a separate sentence makes a specific sentencing scheme not eligible to good time. Number 360 MR. LUCKHAUPT explained there was a similar discussion in the House when the bill was considered, and he said for a first murder the sentence could be as low as 20 years, but they would be eligible for the good time provision. He further explained prisoners would be eligible for parole after serving two thirds of their sentence. SENATOR DONLEY was puzzled at the contradiction with previous testimony on the 20 year sentence. SENATOR TAYLOR reminded SENATOR DONLEY the judge could still limit the likelihood of discretionary parole, but he questioned the mandatory parole at the end of fourteen years with the good time credit. MR. LUCKHAUPT said it was confusing because the mandatory parole works off the good time credit of one third of a twenty year sentence, and a person must be paroled, while the discretionary parole that kicks in after one half of the sentence has been served. At that point the offender can be released from prison. MR. LUCKHAUPT explained the mandatory 99 year sentence for murder were enacted two years ago, and provides a restriction on the eligibility for discretionary parole. He said this was the only distinction in the sentencing scheme at present, but the judge always has the option of limiting parole. He explained SB 234 would remove the eligibility of the habitual criminals for the good behavior statutes. SENATOR TAYLOR quoted the legislation as using two serious felonies and one "generic" felony for the 99 year sentence to be used, and at least the last one would have to be a "most serious" class of felony. MR. LUCKHAUPT said his description was correct. Number 400 MR. LUCKHAUPT said he drafted the bill that way, but he described the manner in which the State of Washington drafting theirs where all three of the felonies had to be serious, most violent felonies. He reviewed a United States Supreme Court decision from a habitual criminal law from the State of Oklahoma which was struck down, saying that sentence was not in relation to his current felony. All of his seven felonies were non-violent offenses, and the court said these offenses should not warrant a life sentence. The felon in question was not dangerous. For that reason, MR. LUCKHAUPT drafted SB 234 with this decision in mind, and he said all others drafted in this manner had withstood constitutional challenge. SENATOR TAYLOR asked for the number of states with habitual criminal statutes. MR. LUCKHAUPT explained he had not researched the number of states that have this statute, but he referred to his days as a prosecutor and being aware it was a fairly common provision in most states. He said Alaska had a habitual criminal law until the new sentencing code was adopted in 1978, and changed to presumptive sentencing which could increase the sentence for each offense. MR. LUCKHAUPT said presumptive sentencing did not operate the same as the habitual criminal law, and he reviewed what other states have done in this respect. He said the approach in SENATOR LEMAN'S bill was the most common approach used at present. SENATOR TAYLOR confirmed most states were providing a sentencing option. MR. LUCKHAUPT explained the 99 year sentence was not a new concept, and he said it was the buzz word in Washington D. C., but it is a concept Alaska has not had for 10 or 15 years. SENATOR JACKO questioned a reference in statute relating to the use of the words, knowingly directed, on the first line of page two of the bill, and asked if a person under the influence of drugs and alcohol could knowingly direct action. Number 453 MR. LUCKHAUPT explained being under the influence of drugs and alcohol usually reduces "intentional" down to a lesser state, but he suggested SENATOR JACKO ask MR. MCNALLY about the difference. He thought the state should still be able to obtain a conviction, even under the influence of drugs and alcohol, but it would reduce the crime from specific intent to a general intent crime. He explained "knowingly" fit into both sequences since it contains elements of both intentional and general. SENATOR TAYLOR asked how he had chosen the 99 year figure, and MR. LUCKHAUPT explained the sponsor was looking for a life in prison law, but in Alaska there is no life in prison law. The term of 99 years was decided by the legislature a number of years ago, and MR. LUCKHAUPT said it was used to fit in the current drafting style. SENATOR DONLEY referred to page 5, lines 10 through 11, to suggest inserting the statute with the three categories of mandatory 99 years without parole section for the three types of homicide without good time deductions, and he explained his reasons. SENATOR LEMAN thought SENATOR DONLEY'S suggestion made sense, and the concept of "no good time" was explained to SENATOR LITTLE. SENATOR DONLEY thought it should be used for the ultra serious homicides. MR. MCNALLY said he was appearing in his new role as Deputy Attorney General, and he said the Administration supports a three strikes concept of life in prison, without parole eligibility, for people who have been convicted of three serious, violent felonies. He explained the Criminal Division in the Department of Law was concerned about the kind of drafting it would take to achieve the results the sponsor and supporters seek. He offered to answer questions about the legislation. Number 509 SENATOR TAYLOR questioned when notification occurs, and he gave an example of a person brought before the judge on the third felony. He explained it was the judge's obligation to advise the person at arraignment of the possible ramifications a conviction or a plea of guilty on this charge would have. He asked if, on every serious felony, would the judge have to advise at the beginning. MR. MCNALLY gave some background information from the State of Washington which makes it discretionary, and PRESIDENT CLINTON'S federal bill which is silent on the question, as is SENATOR LEMAN'S bill, SB 234. He said REPRESENTATIVE BUNDE'S bill attempts to address the question requiring the court to advise the defendant, but he said the real question would be what is the consequences if the court does not advise the defendant. SENATOR TAYLOR said this was his fear. MR. MCNALLY said there was the question of how we go back in time to someone who was convicted six years ago, or 20 years ago, and are we opening a Pandora's Box, to create a statutory scheme where no one would be eligible for the sentence until 20 or 30 years from now? MR. MCNALLY explained the judges in Alaska already have a very lengthy set of warnings and advice that is provided whenever anyone comes before them. As a procedural matter, he said it would be simple to add a warning like this, but if it was incorporated in the statute, it would mean the three strikes clock begins running at the time of enactment rather than covering someone who is already a two time loser, and who is today behind bars in Alaska. He continues the scenario by explaining this person will complete his sentence seven years from now, and be released to commit a third violent felony. MR. MCNALLY said these were questions not fully resolved by the Criminal Division of the Department of Law. SENATOR TAYLOR said he didn't want to go through the exercise of drafting a law and returning home to find the first prosecution was going to the supreme court. He said he would prefer discussion and research at this time rather than after the fact. MR. MCNALLY explained the formation of an internal district attorney's task force consisting of some of the most senior veterans of the criminal division, who have been prosecuting at least 20 years apiece in Alaska, only on the "three strikes" bill. He said they were concerned at the possible pitfalls and a supreme court ruling three years from now, putting the problem back at the starting gate. SENATOR TAYLOR said he didn't want an immediate effective date following the legislation, which then starts the clock running at that time and would preclude having the sentencing option available for those most serious offenders getting out of jail over the next period of time. MR. MCNALLY said he had a sense there would be a way to avoid starting the clock now, but he wasn't sure of a way to accomplish it yet. He assumed the sponsor wanted the legislation to go back in time as well as forward in time. MR. LEMAN remarked that was his intent and said he would look forward to working with the task force. He hoped they would be able to craft the legislation to make it apply both ways. Number 556 SENATOR TAYLOR asked MR. MCNALLY for his additional questions on the legislation. MR. MCNALLY said the principal constitutional concern expressed by the Department of Law is the phrase, "manifest injustice." He reviewed a case in Texas to point out the need to draft a law that does not produce a manifestly unjust result. He referred to the presumptive sentencing scheme as passing constitutional muster in Alaska because manifest injustices are addressed by the three judge panel - the safety valve. He said the principal concern of the department was the need for a safety valve, and what it might be. MR. MCNALLY proposed three safety valves for the committee to consider. The first would be to provide prosecutorial discretion, to permit the district attorney's office, under the Executive Branch and Alaska's unified Department of Law, to have the option of seeking, or not seeking, the mandatory 99 years. He explained it would be similar to the aggravating factors in sentencing, and he explained the judge does not find aggravators where the State has not filed them. In which case, the 99 life in prison without parole would not be on the table unless the State filed it. MR. MCNALLY explained a second safety valve is the three judge panel option, because the bill is mandatory and not presumptive in nature, the three judge panel would not apply unless the bill specifically stated it would. He further explained the problem in legislating an escape valve such as the three judge panel, is that it may effectively negate the intent of the legislature and of the people in support of this legislation. He said their concern was all defendants would seek review by the three judge panel, would get review. He explained the three judge panel today routinely declines to reduce a sentence, but with the finality of the sentence, a large number of defendants would seek review. He didn't think it would be a very effective safety valve, given the intent of the legislation. MR. MCNALLY thought the best option maybe one uniquely suited to Alaska, is in operation in other states, but is a bit different from both SENATOR LEMAN or REPRESENTATIVE BUNDE'S bills. He attributed the notion to HARRY DAVIS, the district attorney in Fairbanks for 15 years and one of the few prosecutors who has used it. He said MR. DAVIS had experience with Alaska's old habitual offender law that was referenced earlier. He said it would create a whole new crime, which would be the crime of "Three Strikes." MR. MCNALLY said, instead of waiting for the third conviction where the new sentencing scheme occurs, on the third prosecution, the state would have to file an additional charge, not only charging an offender with the third crime, but also charging the offender with a "Three Strikes." MR. MCNALLY said it would be a fairly quick proceeding ... TAPE 94-9, SIDE B Number 001 ... and prove up the prior convictions, and he said it would be the equivalent to the current scheme in most states that have a death penalty, with a two part trial that would lead to the 99 year sentence without parole. He explained it could be the Alaskan equivalent to the death penalty, and he elaborated on the aspects of the idea. This was his third safety valve. SENATOR TAYLOR reviewed the last idea, saying it would be back to prosecutorial discretion with more of an automatic resolution on the third conviction. MR. MCNALLY said he was correct. SENATOR TAYLOR reviewed a 1978 intensive survey by the Alaska Judicial Council on sentencing practices in the State, and was part of the motivating factors for the mandatory sentencing which indicated a level of racial bias in the sentencing process. About that time, he said approximately 99% of the sentencing in this State was being done with plea bargains through district attorneys, and ratified by the judges. SENATOR TAYLOR said he still had some concerns about the plea bargaining process, but he praised AV GROSS for halting the overt practice, although he knows it is still used under the guise of charge bargaining. SENATOR TAYLOR said he wanted a meaningful safety valve, and an effective one, which has a focus on sentences that are going to continue to pass muster with both the Alaska State Supreme Court, the Ninth Circuit, and any other court that might be used. SENATOR TAYLOR said the committee will be very interested in the report from MR. MCNALLY and the task force. He asked JERRY LUCKHAUPT to help with the task force, also. SENATOR TAYLOR said he didn't want it to be a hollow act. SENATOR DONLEY quoted MR. MCNALLY as supporting the "three strikes you're out" for violent felonies, and described the breakdown of the felonies with only two as violent crimes. He suggested this was a bit different from MR. MCNALLY'S third proposal. MR. MCNALLY thought SENATOR DONLEY was talking about parameters, and he thought it was too soon to tell what all of the analysis would produce. He thought the question of degree of felonies in the three strikes was one of the major questions on the table, and he didn't think the Administration was at this point in a position to address the felony question. MR. MCNALLY thought the two other issues that should be on the table is, first, whether the three crimes have to be sequential, and he reviewed the federal bill and REPRESENTATIVE BUNDE'S bill in this regard. Number 062 SENATOR TAYLOR said he would appreciate the task force working on the subject to be able to make certain it doesn't matter how or when the three felonies occur. He said he has seen too many people released on conditions awaiting appeal, or released on conditions awaiting sentencing, and committing another major crime while waiting. SENATOR TAYLOR continued to express concern about the delays in the appeal process. MR. MCNALLY concluded the questions from the Department of Law, and said they would be working with the sponsor. He said the Governor and the Attorney General shared SENATOR TAYLOR'S concerns about prosecutorial discretion and plea bargaining. MR. MCNALLY reviewed his previous testimony before the Judiciary Committee concerning capital punishment, and he said one of the points made was that in 38 other states, as well as in the federal government, the prosecutors have considerable leeway. For example, he used DOUG GUSTAFSON, who plead guilty to all accounts in federal court, received life imprison without parole, to protect his sister and to escape the death penalty. He explained this negotiated settlement is prevalent throughout the nation, and he thought, if Alaska is not going to have a death penalty statute soon, the three strikes could become the moral equivalent of the death penalty with the worst felons. He explained how the three strikes could work in this kind of plea bargaining in Alaska, resulting in cost savings to the Department of Corrections and to the whole Criminal Justice system. Number 102 SENATOR DONLEY was interested in having MR. MCNALLY'S task force examine how the conspiracy statute interplays with the provisions on page 4, lines 8 through 13. MR. MCNALLY said it was something being considered, and he explained in substantive crimes the legislature might want to consider conspiracy, attempts, or solicitation to commit acts be included in the list to be counted as one of the three strikes. The committee members discussed conspiracy, consecutive sentences, and the options provided to the judges. MR. MCNALLY considered the Smithart Case in this context, although the murderer was sentenced to 99 years. MR. MCNALLY suggested SENATOR TAYLOR would not want to create periods of appeal where, for two years, there is a bubble of protection that is not counted in additional crimes. SENATOR TAYLOR agreed it was his concern and also agreed with SENATOR DONLEY'S concerns about the conspiracy aspects, too. SENATOR LITTLE asked to hear DIANE SCHENKER, from the Department of Corrections, and SENATOR TAYLOR recognized it was a good idea to look at the fiscal notes. MS. SCHENKER said she would answer questions on the correction's fiscal note. SENATOR LITTLE said she was very concerned about the requirements the committee seems to be making of the Department of Corrections without putting forth additional capital for operations. She referred to the fiscal note explanation, page 4, item 8, to the existing conditions in the system with current overcrowding. SENATOR LITTLE asked MS. SCHENKER if the legislation would require construction of a new facility. Number 146 MS. SCHENKER relayed the concerns of the Department of Corrections there would be an accumulative effect from the individual crime bills with the department not being able to predict the impact of a bill, such as the conspiracy bill as well as the three strikes bill. She said the Department of Corrections has always found it difficult to predict when these bills would result in the construction of an entirely new facilities. MS. SCHENKER claimed, if all of the crime legislation became law, the department would need a large number of beds. At present, she explained Corrections was more than 200 prisoners over capacity, plus there was a waiting list of over 700 people for minor crimes. MS. SCHENKER stressed the Department of Corrections supports the concept of three strikes, but she maintained the legislators need a clear understanding it would be expensive. She defended the department's assumptions in the fiscal note as very conservative, but she said these assumptions would change if not all three of the felonies had to be "most serious." She said if one of the felonies doesn't, it would make their estimate more conservative. SENATOR DONLEY expressed appreciation for MS. SCHENKER'S testimony and his concern for the accumulative effect of the legislation. He referred to a recent bulletin from Corrections, which said there were no beds available. MS. SCHENKER said he was correct, and she described Corrections as working on a daily basis with prosecutors, judges, and others to juggle the overcrowding. She described it as being in crisis, looking for solutions, but not having extra room. SENATOR DONLEY quoted people as explaining the non-dangerous prisoners should be moved out into community facilities, but he said these were not people he wanted to see in halfway houses. SENATOR DONLEY thought there was a real need for a new facility or some arrangement with another state, to house our criminals. He suggested the accumulative effect of all of the crime legislation would seriously justify additional facilities, which he supported. Number 194 SENATOR LEMAN asked MS. SCHENKER whether the approximately 3 thousand incarcerated were physically dangerous, and he suggested the woman who stole the Girl Scout money would not fit in this category. He wondered if any of those kind could be put in less expensive beds. MS. SCHENKER agreed they were not all physically dangerous and said presently there were over 300 people in halfway house community beds, soft beds. She described restitution centers but said most of the current prisoners had some violence in their past. MS. SCHENKER explained the constant reevaluation and classification of the prisoner, which has resulted in legislators who are uncomfortable with the level of classification. MS. SCHENKER said Corrections has identified those who need the lowest security, making lower cost beds. SENATOR TAYLOR expressed concern, on page 7, the $100 million total was considered too conservative by the Department of Corrections. MS. SCHENKER defended the fiscal note explaining the Department of Corrections spent a great deal of time on the issue, meeting with the Judicial Council, and availing themselves of every piece of criminal justice information available in the State. Using that information, she said she had made conservative assumptions. She said her only error was her assumption that all three felonies had to be "most serious." MS. SCHENKER said contracting the new beds would be less than the capital expense, and she discussed the impact of the number of crime bills passed. She added into the equation the increase in population plus the unknown number from the legislation, would make necessary a master plan for the Department of Corrections every time any three digit number of prisoners was added. MS. SCHENKER projected the cost of another Spring Creek at $100 thousand per bed including the cost of the core operations, but thought there could be some savings through expansion of existing facilities. SENATOR TAYLOR picked up on the total additional expense of over $100 million, and MS. SCHENKER described the impact would be over a 41 year period. She said the concerns of the Department of Corrections was the impact on the department after the fiscal note has run out when there would be more prisoners than resources. They discussed the impact of plea bargaining on the costs. Number 276 SENATOR DONLEY thought it was impossible for Correction to secure a fair fiscal note until the department knows the parameters of the variables identified by MR. MCNALLY. He hoped the Finance Committee would deal realistically with the figures, because he didn't want to see violent felons let loose because new laws did not provide additional facilities. SENATOR DONLEY said he supported money for building new facilities in either the budget or the capital bill. SENATOR LEMAN said he didn't want a college campus type of a facility, and there was a general discussion on using remote sites such as Attu. SENATOR TAYLOR suggested the legislators would let Mother Nature carry out the death sentence. SENATOR TAYLOR said SB 234 would be held until MR. MCNALLY and his task force can conclude their work. He had asked their work to be expedited and returned to committee. SENATOR TAYLOR suggested MR. MCNALLY work with Corrections on the fiscal note.