Alaska Has Jurisdiction over Crime Committed in Canadian Waters

Lynda Lancaster, J.D.
Stephanie Showalter

Last year the Alaska Supreme Court held that the state has jurisdiction to prosecute crimes committed onboard a state ferry while it is in Canadian waters.

Background
The citizens of coastal Alaska depend on the Alaska Marine Highway and its ferries in much the same way as city dwellers rely on a subway system. The ferry system connects coastal communities and Alaska to the lower 48 states. In addition to transporting locals, the ferry system attracts tourists from around the world wishing to experience Alaska’s spectacular scenery.

In May 2001, the ferry Matanuska was traveling between Seattle, Washington and Ketchikan, Alaska. Vernon Jack allegedly sexually assaulted a sixteen-year old passenger while the ferry was traversing Canadian waters. An off duty Alaska Trooper, who happened to be onboard, investigated the assault and arrested Jack to stand trial in Alaska. The Juneau Superior Court dismissed the indictment on grounds that Alaska did not have jurisdiction in the waters where the assault took place. The Alaska Court of Appeals affirmed, holding that Alaska’s criminal jurisdiction did not extend to Canadian territorial waters.1 The state appealed.

Jurisdiction
To prosecute Jack, Alaska must have jurisdiction. Because the crime happened in foreign waters, the extent of U.S. jurisdiction is also relevant. “United States criminal jurisdiction exists over crimes committed on United States flagged ships, even when they are in foreign territorial water, if the local sovereign has not asserted jurisdiction.”2 Generally a coastal nation is authorized to assert jurisdiction over foreign vessels only if the “peace or dignity of the country or the tranquility of the port” is threatened.3 Canada had not asserted jurisdiction, so the U.S. could have clearly exercised jurisdiction if it had so desired.

“A state, by statute, may extend its jurisdiction to enforce violations of its substantive criminal law when a person’s conduct occurring outside the territorial limits of the state affects an in-state interest.”4 Alaska statutes provide that “the jurisdiction of the state extends to water offshore from the coast of the state [including] the high seas to the extent that jurisdiction is claimed by the United States of America, or to the extent recognized by the usages and customs of international law.”5 The above provision, however, “does not limit or restrict the jurisdiction of the state over a person or subject inside or outside the state that is exercisable by reason of citizenship, residence, or another reason recognized by law.”6

“Water Offshore From the Coast”
The Alaska Supreme Court concluded that the assault occurred in water offshore the coast of Alaska within the meaning of Alaska Statute § 44.03.010(2). The court first determined that the legislature intended to provide the state with extraterritorial jurisdiction coterminous with that of the United States and, therefore, the terms of § 44.03.010 should be read broadly. The court agreed with the state that “high seas” should be defined as “encompassing all ocean waters beyond the boundaries of the low-water mark” of the state, including the territorial waters of foreign nations.7 Because the crime occurred in ocean waters beyond the low water mark, it occurred on the high seas and in “water offshore from the coast.”

The court’s reasoning is interesting. The “high seas” is generally recognized as that area of the ocean that remains beyond the reach of any nation. For instance, the high seas provisions in Article 86 of the U.N. Convention on the Law of the Sea apply only to the “parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State.” The “high seas” are “international waters” and are not generally considered to include foreign territorial waters.

Judge Carpeneti’s concurring opinion highlights this flaw in the majority’s reasoning. “Because the territorial waters of Canada do not appear to be the ‘high seas,’ I would not base the state’s jurisdiction on AS 44.03.010(2).”8 Justice Carpeneti, however, would have reached the same conclusion albeit under a different section. Under § 44.03.030(1), Alaska may exercise extraterritorial jurisdiction over a person outside the state by reason of citizenship, residence, or “another reason exercisable by law.”

The Effects Doctrine
In addition to meeting the prerequisites of the jurisdictional statutes, to exercise jurisdiction over Jack, Alaska must have a substantial interest. “The effects doctrine recognizes that a state may exercise extraterritorial jurisdiction over conduct outside the state that has or is intended to have a substantial effect within the state so long as the exercise of jurisdiction does not conflict with federal law and is otherwise reasonable.” In certain situations the effects doctrine can provide an independent basis for the exercise of extraterritorial jurisdiction. The court determined that the state meet the threshold requirements of the effects doctrine in this case. Alaska has a significant interest to ensure passengers and cargo transported on state ferries are safe. There is no conflict with federal law and exercise of jurisdiction is reasonable in light of the importance of the ferry system.

Conclusion
Although one justice disagreed as to the proper statutory provisions, the Alaska Supreme Court held that the state had jurisdiction to prosecute crimes committed onboard state ferries while in Canadian waters.

Endnotes
1. State v. Jack, 67 P.3d 673 (Alaska Ct. App. 2003).
2. State v. Jack, No. S-11051, slip op. at 15 (Alaska Dec. 12, 2005).
3. Id. at 16.
4. State v. Jack, 67 P.3d 673 at 674.
5. Alaska Stat. § 44.03.010(2).
6. Id. § 44.03.030(1).
7. State v. Jack, No. S-11051, slip op. at 10.
8. Id. at 29.