Legislature(2019 - 2020)GRUENBERG 120
03/02/2020 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB198 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 198 | TELECONFERENCED | |
| + | HB 148 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 198-AGGRAVATING FACTORS AT SENTENCING
2:28:04 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 198, "An Act relating to aggravating factors
considered at sentencing."
2:28:27 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor presented HB 198. He stated that HB 198 is not "a
civil rights bill, it's a crime bill." He said that the
legislation proposed under HB 198 would establish that if a
group of Alaskans, who identify as homosexual or have a gender
identity that is expressed differently than the majority, are
deliberately attacked by an assailant because of those
characteristics, the assailant could be subject to enhanced
penalties. He expressed that some people might say that HB 198
sounds radical, but he said that it is not radical. He stated
that there are variations of this type of legislation in 32 of
the 50 U.S. states, including 6 very conservative states, such
as Nebraska and Kansas. He expressed that a vast majority of
the states have these types of hate crimes.
REPRESENTATIVE JOSEPHSON said that hate crimes have existed
since the late 1970s and early 1980s. He said that 45 states
have hate crimes, 32 of which have an enhanced penalty called a
"bias-motivated aggravator" when someone is targeted because of
his/her sexual orientation or gender identity. He expressed
that the proposed legislation would rarely be needed, "but when
it's needed, it's really needed," otherwise the result is
community outrage. He explained that Chief Justice William
Rehnquist, a very conservative justice originally appointed by
President Richard Nixon as an Associate Justice and then Chief
Justice under President Ronald Reagan, declared in the 1993 case
of Wisconsin v. Mitchell that it is constitutional to consider
enhanced penalties in hate crime cases. He stated that in the
1993 decision, Chief Justice Rehnquist reversed the decision
made by Wisconsin's Supreme Court that it was unlawful to punish
a hate crime more severely. He explained that what had happened
in the case, is some African American men had deliberately
attacked a man because he was white. Wisconsin determined that
it was going to punish the crime more severely because it was a
race-based crime. He said that in his decision, Chief Justice
Rehnquist expressed concern with the idea that an attack on an
individual based on an inherent characteristic could result in a
response from the community that would provoke retaliatory
crimes, inflict distinct emotional harms on the victims, and
insight community unrest.
2:33:05 PM
REPRESENTATIVE JOSEPHSON said that Chief Justice Rehnquist
explained that those kinds of crimes could result in racial
infighting based on retaliatory acts and inflict emotional harm.
He said that crimes without specifically targeted populations
affect all people equally; there is no greater harm to one
segment of society. He said the only way to protect a group
from a crime, inflicted with the intent to hurt that specific
group, is through a statement of community condemnation.
REPRESENTATIVE JOSEPHSON said that he thinks some people think
that the legislation proposed under HB 198 would be unfair, as
members of a majority population would not "benefit" from it.
He expressed that his reaction to that is that it would not be
something to begrudge, because no one gets a benefit except for
the community "writ large." He said that the victim in a
situation like this would have been assaulted feloniously or
murdered; an individual would not want to be in a position that
he/she would benefit from the proposed legislation, as something
"went horribly wrong" if he/she entered that category.
REPRESENTATIVE JOSEPHSON explained that the proposed legislation
is about community condemnation. He expressed that Alaska
already has 37 "aggravators" and the proposed legislation would
add a sexual orientation and gender identity clause to the
twenty-second aggravator, which is about race, religion, creed,
and nationality; he said that the clause fits in logically with
this group. He expressed that the proposed legislation could
not be abused by a prosecutor. He explained that current law
requires a finding beyond a reasonable doubt that the aggravator
should apply, the finding must be made by all 12 jurors who just
found the defendant guilty at sentencing, and then the judge
would be the "final backstop," and could decide not to enhance
the sentence.
REPRESENTATIVE JOSEPHSON remarked that the City Councils in
Kenai and Soldotna, which are most closely connected to the
incident that Representative Knopp would be describing in his
presentation, voted overwhelmingly, by a vote of 5 to 2, to
support HB 198 as the remedy to the solution. He said that 11
members of the Anchorage Municipality, by not taking it off the
consent agenda, voted recently to support HB 198.
2:36:55 PM
REPRESENTATIVE GARY KNOPP, Alaska State Legislature, as co-
sponsor provided information regarding HB 198. He expressed
that there was no one better than Representative Josephson to
explain the details and legalities of the proposed legislation.
He stated that he was present to speak about HB 198 because the
issue that prompted the proposed legislation happened in his
hometown. He said that his Bureau and cities in his District
passed overwhelming support for HB 198.
REPRESENTATIVE KNOPP explained that supporters of the Lesbian,
Gay, Bisexual, and Transgender (LGBTQ) community held a town
hall meeting to address what had happened in his hometown and
invited him to attend, which he did; there were approximately
200 people at the meeting. He said that the LGBTQ community
requested that he bring the proposed legislation forward, which
he said he thinks was a fair and reasonable request. He
remarked that he has been asked whether a new class of people is
being created by offering support to these people, and he said
that is not the case; fair and equal treatment is being extended
to all classes of people, regardless of who they are, their
beliefs, and how they choose to live their lives.
REPRESENTATIVE KNOPP expressed that he was honored to sit in
front of the House Judiciary Standing Committee, as it has two
members who worked in law enforcement for most of their careers
to fight for equality, and three licensed attorneys who
practiced law in support of equal representation. He said that
legislators need to try and extend that same equality. He
stated that some people can not get over their religious beliefs
and express a dislike for the LGBTQ community, and he said that
people are not being asked to like the LGBTQ community, only to
extend equal treatment to all members of society. He reiterated
what Representative Josephson had said regarding the hurdles for
applying aggravators; they are enormous.
REPRESENTATIVE KNOPP stated that discrimination is not allowed
based on religious beliefs, or hate crimes, without additional
penalties. As an example, he asked whether the same thing would
apply to a group of Atheists, who didn't have religious beliefs
but were targeted in a hate crime. He expressed that the LGBTQ
group could be considered in the same category and the proposed
legislation would not be creating a special group. He added
that he thinks a series of issues relating to hate crimes could
come forward in the future, and the legislature's job is to
ensure that people are treated equally across a spectrum,
regardless of how they live their lives. He expressed that he
thinks HB 198 is the appropriate legislation to move.
2:40:40 PM
REPRESENTATIVE KNOPP stated that it was very clear to him that
the attack that took place in Soldotna was a targeted hate
crime. He explained that there was a homophobic note, a smashed
windshield and damage to the vehicle, and a knife attack which
cut the victim up severely requiring many days in the hospital.
He said that it was a horrific crime, the attacker was full of
hatred, and it quite possibly could have been a murder. He said
that these attacks are what he hopes the proposed legislation
would prevent and would make it clear that the consequences are
severe in a targeted hate crime.
2:42:05 PM
REPRESENTATIVE JOSEPHSON commented that in the event that the
question would arise as to whether there are federal laws that
would offer solace or comfort to these victims of hate crimes,
the answer is no; he explained that a "federal nexus" or a
connection to federal jurisdiction is required. He said that
the attack mentioned by Representative Knopp took place at the
victim's garage door late at night, the attacker was not there
to steal, and the victim was cut badly from the wrist to the
elbow on both arms. He expressed that this was a serious felony
assault.
2:43:10 PM
NATHANIEL GRABMAN, Staff, Representative Andy Josephson, Alaska
State Legislature, offered a PowerPoint presentation on HB 198,
on behalf of Representative Andy Josephson, prime sponsor.
2:43:36 PM
MR. GRABMAN, referencing slide 2 of the PowerPoint Presentation,
explained that aggravating factors in sentencing do not come in
to play until after a defendant has been convicted of a crime.
He said that AS 12.55.155(c) contains 37 separate factors which
can be considered at sentencing and must first be proven, which
allows for sentencing beyond the presumptive ranges set out in
law. He said that AS 12.55.125(d) contains mitigating factors
and the combination of mitigating factors and aggravating
factors can cause sentences to be above or below presumptive
sentences in some cases.
2:44:42 PM
MR. GRABMAN, referencing slide 3 of the PowerPoint presentation,
explained that aggravating factors exist because motive and
details are important, things aren't always in "black and white
context," and there are often "far more shades of gray between
those extremes." He said that all laws are ultimately
reflections of societal attitudes about right and wrong. He
remarked that when aggravating factors come into relevance, the
defendant has already been convicted and the details are broadly
considered to be abhorrent or aberrant from what could be
considered a typical crime of that sort.
2:44:59 PM
MR. GRABMAN, referencing slide 4 of the PowerPoint presentation,
stated that HB 198 would amend Aggravator 22, which comes into
play when a victim is targeted based on his/her race, sex,
color, creed, physical or mental disability, and ancestry or
national origin. He said that HB 198 would add the words
"sexual orientation or gender identity" to that list.
2:45:23 PM
MR. GRABMAN, referencing slide 5 of the PowerPoint presentation,
explained some of the data from the Federal Bureau of
Investigation (FBI) Uniform Crime Reporting Program over the
last few years. He pointed out that crimes reported to the FBI
that were motivated by bias against an individual because of
his/her sexual orientation have risen approximately 15 percent
from 2015 to 2018. He said that crimes reported based on a bias
against someone for his/her gender identity, increased by
approximately 30 percent in 2018.
2:46:23 PM
MR. GRABMAN, referencing slide 6 of the PowerPoint presentation,
pointed out that Alaska has not been immune to hate crimes. He
said that the events on the Kenai Peninsula occurred over a few
weeks in late November and early December of 2019, which
prompted HB 198 into existence.
2:46:42 PM
MR. GRABMAN, referencing slide 7 of the PowerPoint presentation,
pointed out the U.S. states that have aggravator laws in place.
He expressed that he found it interesting that there are four or
five states that do not have aggravator laws, and a majority of
states have aggravators relating to sexual orientation and
gender identity.
2:47:19 PM
MR. GRABMAN played a YouTube video that was approximately three
minutes long that explained hate crime statistics.
[https://www.cnn.com/videos/us/2019/11/07/hate-crime-statistics-
explainer-orig.cnn]
2:50:42 PM
CHAIR CLAMAN opened invited and public testimony on HB 198.
2:50:58 PM
TAMMIE WILLIS offered testimony in support of HB 198, and
related information pertaining to an assault that she endured.
She stated that on November 14, 2019, she found a note on her
truck that was full of homophobic slurs and a threat that she
would be hurt. She said that on November 22, 2019, an object
was thrown at her truck, which shattered her windshield. She
explained that she later learned that the Soldotna police found
a rock with the word "dyke" written on it at the location where
her windshield was shattered. She said that on December 9,
2019, the situation escalated to include an assault in her home,
where she was repeatedly cut with a knife and punched until
nearly the entire left side of her body was covered in bruises.
She said that her wounds required 20 staples and 2 stitches, and
it took almost a month for the bruises to disappear. She
expressed that she was lucky that a power outage the morning of
the assault made it difficult for her assailant to see her,
otherwise she said that she has no doubt the outcome would have
been much worse for her.
MS. WILLIS stated that since the assault she has left her home
in Sterling and moved into the residence hall at Kenai Peninsula
College where she works. She said that she rarely goes out
anymore, and when she does it is for short trips typically in
the company of a friend. She expressed that she does not sleep
well, has panic attacks in the dark, and still wakes her wife up
with nightmares. She said that since coming forth with her
experience, she has learned the hard way why people are often
reluctant to come forward with their stories; she expressed that
the outpouring of hatred she has experienced on social media
since coming forward "cuts deep, just like the knife did." She
said that every news story, every time she testifies, and every
time she takes a stand against what happened there is a new
outpouring of hate rhetoric that attempts to dismiss her
experience altogether.
MS. WILLIS stated that there has also been an outpouring of
support from people all over Alaska and the community where she
was hurt. She said that this support was clearly demonstrated
on January 4, 2020, when 200 people attended a town hall meeting
to discuss the safety of the LGBTQ community. She said that
religious leaders, community leaders, state leaders, and
community members showed her that there were more people willing
to take a stand against hate than she had ever imagined. She
expressed that these people listened with their hearts open as
members of the LGBTQ community shared stories of bullying,
harassment, violence, prejudice, and loss due to issues relating
to sexual orientation and gender identity. She said that due to
listening with open hearts, people came to understand that her
experience was not the exception, and that the reality for LGBTQ
people living in Alaska includes living with fear, harassment,
and the threat of violence.
MS. WILLIS stated that legislation like that proposed under HB
198 would not be needed in an ideal world, but the world is not
there yet. She said that what happened to her was a hate crime,
and she clarified that a hate crime is a message crime, meant to
instill fear in the victim and the group that the victim belongs
to. She expressed that until the world is at a place where
everyone is treated with respect and dignity, HB 198 would send
a clear message from Alaska's leaders that hate and violence are
not the values shared as a community; they are not Alaskan
values and they will not be tolerated.
MS. WILLIS expressed thanks for the committee listening to her
testimony and said that she thinks the proposed legislation is
very important and means a lot to her as a member of the LGBTQ
community. She said that she learned in the last week or so
that nearly 1,000 people have signed a petition in support of HB
198, many of them members of the LGBTQ community and their
allies who have similar stories to hers.
2:54:42 PM
CHAIR CLAMAN thanked Ms. Willis for her testimony and remarked,
"I think I express the sentiment of all members of the committee
that what happened to you is not acceptable in any way, and in
fact quite horrible, and I'm sorry that you suffered that."
2:55:04 PM
KAREN LOEFFLER offered testimony in support of HB 198, as former
United States Attorney for the District of Alaska. She stated
that she wanted to emphasize the points Representative Josephson
had made about why it is necessary for the state to move the
proposed legislation forward. She explained that the federal
government takes a "back seat" to the state on hate crimes; not
only do the federal statutes require special jurisdiction, in
order for a U.S. attorney in Alaska to take up a hate crime,
he/she has to go to Washington and get permission. She stated
that it is acknowledged that the government entity responsible
for protecting its citizens in these areas is the state. She
explained that the proposed legislation would fill in a hole
that the federal government also had to fill.
MS. LOEFFLER said that in 2009 the federal legislature enacted
the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention
Act, which she said involved two murders, "one was a young man
killed at the University of Wyoming because he was gay, the
other individual was killed in Texas; he was a black man that
was dragged behind a truck." She said that the reason the law
was passed is because federal law, like Alaska state law, dealt
with increased punishments for race, religion, and other things,
but did not address the issue of someone who was killed solely
because of his/her sexual orientation. She spoke of the danger
and lack of safety in communities when individuals are targeted
for who they are, which she said was noted by the individual who
was the victim of this crime in a way upon which she could never
expound.
2:57:46 PM
CHARLES MCKEE stated, "I support this bill." He then offered
further information regarding his experience.
3:00:28 PM
VIKKI JO KENNEDY, Self-Gramma Brigade, offered testimony in
support of HB 198. She said that she had lived with the first
legally married lesbian couple in Duval County, Florida, and
expressed that she had never received so much kindness and love
in her life. She said that she was living with the couple when
a massacre happened in Orlando, which devastated the community
in that area. She said that she doesn't think that the proposed
legislation would stop hate crimes from happening in Alaska, but
she thinks it would help in sentencing. She expressed that she
was in support of HB 198 and feels very badly for the individual
who was attacked in Soldotna. She said that supporting the
proposed legislation does not indicate that someone is in
support of being gay or not but supports sentencing for people
who promote hate. She summarized that "hate is hate," and
encouraged that this group of people be added to existing
statute, as a group to be protected like everyone else.
3:02:54 PM
DAVID BRIGHTON offered testimony in support of HB 198. He
stated that many people in the LGTBQ community remain anonymous
out of fear, many LGBTQ students suffer due to their sexual
orientation or gender identity, and the risk of suicide is
substantial for young people in the LGBTQ community. He
expressed that HB 198 would not solve all the problems, but it
would address some of them, and would help the situation. He
asked that the committee please support the proposed legislation
and take a stand to express that it wants to protect the youth
in the LGBTQ community. He stated that he is on the planning
committee for Soldotna Pride in the Park, and when he left the
last meeting, he was looking over his shoulder to see if he was
being followed. He expressed that he had not been in situations
where he was afraid of retaliation very often in his life. He
said that he has heard people in this debate say that people in
the LGBTQ community are looking to be considered "more equal,"
but he encouraged that it be considered that the proposed
legislation would offer more protection for a group of people
that are at a higher risk of violence against them.
3:04:55 PM
NATALI JONES, Itinerant School Counselor, offered testimony in
support of HB 198. She expressed that it broke her heart to see
that students who had spoken out in Soldotna had not received
support from the adults in their community. She said that she
thinks, as legislators, the committee has an opportunity to set
a standard and expectation of safety. She expressed that she
hopes HB 198 gets passed, so that there will be a greater
understanding that every person deserves to be safe. She said
that as her colleague had just mentioned, the LGBTQ community
has one of the highest rates of suicide, because its members
live in fear and are marginalized. She said that the LGBTQ
community is in a situation in which it is unequal, and the
community is asking for the equality and safety which every
student, and human, deserves.
3:06:01 PM
CHAIR CLAMAN, after ascertaining that there was no one else who
wished to testify, closed public testimony on HB 198.
3:06:12 PM
CHAIR CLAMAN announced that HB 198 would be held over for
further review.