Legislature(1993 - 1994)

11/16/1993 09:00 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  CHAIRMAN PORTER introduced HJR 43 (PRINCIPLES OF PENAL                       
  ADMINISTRATION) by the House Judiciary Committee to the                      
  agenda.  He explained that HB 162 (CAPITAL PUNISHMENT FOR                    
  MURDER), along with the companion bill in the Senate, SB 127                 
  (CAPITAL PUNISHMENT FOR MURDER) would be considered later by                 
  SENATOR TAYLOR.                                                              
  At that time, CHAIRMAN PORTER welcomed REPRESENTATIVES CON                   
  BUNDE and ED WILLIS, and announced the committee was now                     
  connected by teleconference to Barrow, Ketchikan, Kodiak,                    
  and Kotzebue.                                                                
  Number 030                                                                   
  CHAIRMAN PORTER gave a historical review of HJR 43, credited                 
  SENATOR DONLEY for his involvement in the bill, and                          
  expressed his desire to see the bill passed this session.                    
  He introduced JANICE LIENHART, who has worked for Victims                    
  for Justice on the bill.  Additionally, CHAIRMAN PORTER                      
  presented the two parts of the bill as proposed                              
  constitutional amendments, and he described the manner in                    
  which the amendments would be confirmed in the legislative                   
  process and by a vote of the public.                                         
  Number 051                                                                   
  CHAIRMAN PORTER continued with an explanation of the bill as                 
  it dealt with Section 12 of Article I in relation to his                     
  previous experience in law enforcement.  He reviewed the                     
  provisions of Section 12 as explained in the Constitution to                 
  be the "reformation of the offender."  CHAIRMAN PORTER                       
  expressed his disagreement with this concept both presently                  
  and from his past work in law enforcement and urged the                      
  reconstruction of the constitutional provision to read as                    
  follows:  "Penal Administration shall be based upon the                      
  following, in the order provided.  First, the need for                       
  protecting the public, community condemnation of the                         
  offender, and the principal of reformation."  CHAIRMAN                       
  PORTER didn't propose the removal of reformation from the                    
  amendment, but thought it was time everyone else was given                   
  equal, if not first, consideration.                                          
  Secondly, CHAIRMAN PORTER indicated the need for a provision                 
  to include, within the Constitution, rights for the victims                  
  of crime, and he explained the need to balance the rights of                 
  people as described in the Bill of Rights in the U.S.                        
  Constitution.  He criticized the Constitution of the State                   
  of Alaska, how it most benefitted the defendants in criminal                 
  justice suits, and how the legislation would increase the                    
  fundamental rights for victims by placing the provisions of                  
  HJR 43 in the Alaskan Constitution.                                          
  CHAIRMAN PORTER continued to assure the continuance of                       
  rights that presently exist for criminal defendants, but he                  
  said HJR 43 would present more balanced rights to victims                    
  than have not existed previously.                                            
  CHAIRMAN PORTER concluded his presentation and called on the                 
  first person to testify, DEBORAH IVY, representing  Victims                  
  for Justice.  In addition, he explained MS. IVY would then                   
  introduce LINDA AKERS, a Deputy Director for Crime Strike,                   
  and a former U.S. Attorney for Arizona.                                      
  Number 096                                                                   
  SENATOR TAYLOR noted for the record the appearance of                        
  SENATOR HALFORD, Senate President.                                           
  MS. IVY introduced herself to the Joint Judiciary Committee                  
  as a victim's rights advocate, a life-long Alaskan resident,                 
  and a law partner in the firm of DELANEY, WILES, HAYS,                       
  REITMAN, & BRUBAKER, INC. in Anchorage.  She described the                   
  organization of Victims for Justice in Anchorage as being                    
  led by JANICE LIENHART and her sister to assist crime                        
  victims throughout the State of Alaska, and she further                      
  described her reasons for being involved in the                              
  MS. IVY thanked CHAIRMAN PORTER, and the members of the                      
  Joint Judiciary Committee, for the opportunity to address                    
  the legislators, and to commend them for taking the lead in                  
  passing a resolution to provide constitutional rights to                     
  crime victims, and she stressed the importance of their                      
  step.  She reiterated her commitment to assisting the                        
  committee members to pass the resolution on victim's                         
  constitutional rights, and she reviewed some concepts on the                 
  background of constitutional rights for victims, beginning                   
  with the work of a presidential task force on victims of                     
  crime in 1981 & 1982 under PRESIDENT RONALD REAGAN.                          
  As a result of this work, it was suggested the Sixth                         
  Amendment to the U.S. Constitution be expanded to include                    
  "the victim in every criminal prosecution shall have the                     
  right to be present and be heard at all critical stages of                   
  the judicial proceedings."  MS. IVY continued to explain the                 
  work done by local victims rights leaders in other states to                 
  implement victim's constitutional rights by amending their                   
  state constitutions, and thereafter to pursue amending the                   
  U.S. Constitution.                                                           
  Number 152                                                                   
  MS. IVY described to date the provision by fourteen states                   
  for victim's rights by changing their constitutions, with                    
  twelve more states presently seeking to amend their                          
  constitutions.  In addition, she described previous flagrant                 
  disregard for the statutory rights of crime victims in these                 
  states.  She quoted the findings of the presidential task                    
  force as asserting the statutory rights were, and are,                       
  subservient to the offender's constitutional rights and                      
  would not be changed until the victims were given equal                      
  MS. IVY continued to explain why this "basic law" should be                  
  in the Alaska State Constitution to prevent victims from                     
  becoming second class citizens in the process, and she                       
  discussed the relevance of the experience of victim's rights                 
  in the State of Michigan to the Alaskan Constitution.  MS.                   
  IVY explained how victims can become brutalized by a lack of                 
  victim's rights and cited an Alaskan case, Raven v. State,                   
  to prove her argument for amending the Alaskan Constitution.                 
  Number 209                                                                   
  MS. IVY described the pervasiveness of crime throughout the                  
  State of Alaska, and she examined the protection for the                     
  offender through numerous provisions.  She enumerated these                  
  protections as given in statute and interpreted "due                         
  process" to give expanded protection to the offenders.  MS.                  
  IVY also explained she did not propose to remove these                       
  protections for the offenders, but to change the status quo                  
  where presently the victim is "victimized" by both the                       
  offender and the judicial system.                                            
  Number 258                                                                   
  MS. IVY requested that the proposed amendment be placed                      
  before the voters in the next general election, and she                      
  explained why she thought the voters would vote "yes."  She                  
  concluded by sharing a quote from THOMAS JEFFERSON, since                    
  she thought it was particularly relevant.                                    
  At the conclusion of her testimony, CHAIRMAN PORTER reviewed                 
  the process from there and decided to invite MS. IVY to                      
  introduce LINDA AKERS.  MS. AKERS was introduced as the                      
  Deputy Director for Crime Strike, an arm of the National                     
  Rifle Association, working primarily in the area of victims                  
  rights advocacy to establish rights for crime victims and to                 
  combat crime through legislative reform.                                     
  MS. IVY reviewed her background of service as a U.S.                         
  Attorney, as a member of the U.S. Attorney General's                         
  advisory committee to assist the attorney general in                         
  formulating national policies within the U.S. Department of                  
  Justice, as well as other relevant positions in the justice                  
  Number 307                                                                   
  MS. AKERS commended the legislators for taking the step                      
  forward to provide for the rights of victims as well as for                  
  the accused.  She thanked the chairmen and members of both                   
  the Senate and House Judiciary Committees.                                   
  MS. AKERS testified as to her position with the National                     
  Rifle Association to provide criminal justice reform, with                   
  her main emphasis on victim's advocacy.  She described her                   
  vantage view of the impact of laws on the victims in                         
  relationship to the accused and the victims.  She described                  
  a time when victims she observed had no rights, but were                     
  merely used as evidence in a case.                                           
  MS. AKERS enumerated the grievances as perceived in victim's                 
  rights - no rights at all for victims in Alaska and for all                  
  but a few states in the United States.  She narrated lengthy                 
  scenarios in which victims were further victimized by the                    
  judicial system.                                                             
  Number 354                                                                   
  MS. AKERS explained how the courts could balance the rights                  
  of the victim against the rights of the accused, and why the                 
  changes should be made by inclusion in the constitution                      
  rather than by statue.  She outlined the problems of                         
  amending by statute using the premise of "fundamental law."                  
  She took on the arguments by those opposed to victim's                       
  rights, giving her answers from personal experience.  MS.                    
  AKERS explained how the changes would add to the                             
  responsibilities of the prosecutor, but stressed that no                     
  right of the victim would come at the expense of the                         
  defendant in the proposed amendment to the constitution.                     
  She took on the problem of cost, explaining why there would                  
  only be a minimal rise in cost.                                              
  Number 404                                                                   
  MS. AKERS explained the tremendous cost of crime to the                      
  victim and to society, and gave her opinion that the                         
  government's most important function should be the                           
  protection of life, liberty, and property of people.  She                    
  gave some background information on experience in Arizona                    
  with the passage of a victim's Bill of Rights in 1990 in a                   
  ballot initiative, and a subsequent set of laws written to                   
  implement the constitutional amendment in 1992.  She traced                  
  the evolvement of the victim's rights law in the Arizona                     
  Courts and gave extensive examples of cases to show the                      
  balance in the law.                                                          
  Number 450                                                                   
  MS. AKERS explained the opponents of victim's rights in                      
  Arizona had raised the same "predictions of doom" as those                   
  heard in Alaska, but she declared these predictions have not                 
  come true.  She also explained how the victims have become a                 
  part of the criminal justice system to the advantage of                      
  everyone in Arizona, and how the sanctity of the                             
  constitution could also be preserved in Alaska.                              
  MS. AKERS enumerated the plus side of the constitutional                     
  amendment which would provide the victims with basic rights                  
  to respect, protection, participation, justice, healing, and                 
  finality to their ordeal.  She described how obstacles to                    
  the victims would be minimized in terms of getting their                     
  rights established.  She concluded her remarks with a                        
  success story from Arizona and answered questions from the                   
  Number 499                                                                   
  CHAIRMAN PORTER thanked MS. AKERS for her extensive coverage                 
  of the manner in which the constitutional amendment works in                 
  Arizona.  He then read the specific victim's rights in HJR
  43 to be considered for inclusion in the Alaska                              
  Constitution.  He claimed the legislation would not change                   
  any of the statutory rights presently provided.                              
  CHAIRMAN PORTER then opened the meeting to questions, and                    
  called on SENATOR DONLEY, who described the differences                      
  between HJR 43 and SJR 2 (RIGHTS OF VICTIMS OF CRIMES).                      
  TAPE 93-59, SIDE B                                                           
  Number 001                                                                   
  SENATOR DONLEY spoke to possible interpretation when new                     
  material is introduced in the constitution.                                  
  CHAIRMAN PORTER explained the phrase in question was                         
  recognized by the Alaska Supreme Court.                                      
  SENATOR DONLEY explained victims were not treated in the                     
  same manner as the public.                                                   
  There ensued a discussion among the legislators and MS. IVY,                 
  who asked for a clear delineation to prevent problems with                   
  REPRESENTATIVE GREEN questioned a point by MS. AKERS about                   
  the placement of the provision in the Alaska State                           
  Constitution as to whether it could be overridden by any                     
  other condition.                                                             
  MS. AKERS explained it would give the victim's rights parity                 
  and equality within the fundamental document, whereas                        
  statutes can be subject to change, be amended, and be                        
  interpreted when inconsistent with a constitutional                          
  provision.  She also interpreted a constitutional provision                  
  as always given precedence over a statute.                                   
  REPRESENTATIVE GREEN than asked if there was any benefit to                  
  certain wording of the proposed amendment to prevent liberal                 
  interpretation by the courts.                                                
  MS. AKERS said the more specific the rights, the less chance                 
  it would be open to interpretation.                                          
  Number 063                                                                   
  MS. AKERS continued to explain the enumeration of specific                   
  victim's rights on which to be relied by the victims and the                 
  courts as was done in Arizona.                                               
  CHAIRMAN PORTER next called on REPRESENTATIVE BUNDE, who                     
  asked about the opposition to the victim's rights amendment.                 
  Number 100                                                                   
  MS. AKERS explained there was opposition from those who                      
  didn't want anything done to the rights of the defendant,                    
  from those who complained about cost, and prosecutors, who                   
  were concerned about various aspects.  She gave examples of                  
  these oppositions from her assignment in Arizona.                            
  Number 129                                                                   
  REPRESENTATIVE BUNDE asked if it would be considered a                       
  greater burden by the defense attorneys.                                     
  MS. AKERS replied the defense attorney would still have all                  
  of the rights that accrued to the defendant as established                   
  by judicial principles and court interpretations.  She                       
  pointed out the differences between the defense attorney and                 
  the role of the prosecutor.                                                  
  Number 160                                                                   
  REPRESENTATIVE JAMES expressed her distress that there has                   
  been unfair treatment of the victims, and they should have                   
  already been protected under the constitution.  She agreed                   
  with the quote from THOMAS JEFFERSON, and urged the "pushing                 
  forward" of the legislation.                                                 
  CHAIRMAN PORTER agreed with her distress.                                    
  In his turn, SENATOR DONLEY explained his feelings that the                  
  rights of the defendant were well protected, the costs were                  
  negligible, and the classic traditional criminal law theory                  
  had not done a good job in protecting the rights of the                      
  victims.  He suggested the bureaucracy as a huge opponent                    
  because the implementation of the rules create new jobs and                  
  new steps to follow - which they don't like.                                 
  SENATOR DONLEY also disagreed there should be any impact on                  
  the defendants, but said there would be the question of the                  
  impact on sentencing.  He referred to a previous case                        
  concerning a victim's impact on sentencing, and he asked MS.                 
  AKERS if she knew of such legislation.                                       
  MS. AKERS said the case was overturned and the victims were                  
  allowed to talk about the impact of the capital crime on                     
  them at the sentencing phase.                                                
  SENATOR DONLEY thought it was important to differentiate                     
  between the guilt phase and the sentencing of the defendant.                 
  He reminded the committee the victim did not get a chance to                 
  testify until guilt had been assigned and not prejudicial to                 
  the guilt of the defendant.                                                  
  Next CHAIRMAN PORTER called on REPRESENTATIVE PHILLIPS who                   
  said SENATOR DONLEY had partially answered her question, but                 
  she wanted to know what had held up passage of the bill in                   
  the past.                                                                    
  CHAIRMAN PORTER said he would ask someone to testify on                      
  SENATOR TAYLOR explained he had sat on three sides of the                    
  issue, one being as a public defender during his time in                     
  private practice, his service of six years on the district                   
  court bench, and now, to look at the issue from the                          
  legislative perspective.  He was in agreement with SENATOR                   
  DONLEY 'S description of the stages to decide on guilt and                   
  moving on to what is an appropriate sentence - an entirely                   
  different forum.  SENATOR TAYLOR explained it was at this                    
  point the additional attention from the victim would be                      
  Number 263                                                                   
  SENATOR TAYLOR described how, in earlier years, defendants                   
  might plead to a Class A misdemeanor and end up in his                       
  district court without the benefit of the superior court                     
  with pre-sentencing reports from those involved with the                     
  defendant.  He also described how he tried, when he was a                    
  judge, to contact the victim, which he felt gave him a                       
  broader depth of the offense.  SENATOR TAYLOR thought it                     
  enabled him to provide a rehabilitative factor in the                        
  sentencing of the defendant.                                                 
  SENATOR TAYLOR discussed with CHAIRMAN PORTER the advantage                  
  of slowing down the repeat offender, and how important he                    
  thought the legislation was to structuring sentencing.                       
  Number 305                                                                   
  MS. AKERS used the recent DENNY trial in Los Angeles, in                     
  which the victim had forgiven his assailants, to explain the                 
  use of the victim's impact statement.                                        
  SENATOR TAYLOR agreed that many people resolve their                         
  feelings as a victim by forgiveness.                                         
  MS. AKERS explained it was important that the victim have                    
  the right to participate and be heard.                                       
  REPRESENTATIVE GREEN asked MS. AKERS if there was any                        
  relation to civil cases, and she had no evidence from                        
  Arizona that made it easier to sue in such a case.                           
  SENATOR DONLEY asked MS. AKERS for some additional                           
  information on principles not directly in the victim's                       
  rights area.  MS. AKERS explained his request dealt mainly                   
  with appellate decisions as to the purpose of sentencing.                    
  She thought his proposed language should be kept in mind                     
  during the implementation of the legislative language.                       
  Number 422                                                                   
  CHAIRMAN PORTER next invited WILLIAM F. DEWEY, a criminal                    
  defense attorney from Anchorage, to testify on the proposed                  
  MR. DEWEY criticized the previous testimony for discussing                   
  the criminals and criminal defendants as if they were                        
  already convicted, and their rights as being different from                  
  those of a citizen.  Based on his experience, he thought the                 
  proposed legislation was cosmetic, and he gave some examples                 
  from his cases.                                                              
  MR. DEWEY said all of the victim's rights mentioned in the                   
  proposed legislation were currently in statute, but he                       
  explained the statutes were flawed and should be known to                    
  the legislators.  He said the establishment of liability to                  
  the victim is there at the time of the criminal offense, and                 
  many criminals in this state have the means to pay their                     
  victim for the crime they have committed.                                    
  MR. DEWEY said the present Victims Crime Act puts the                        
  lawyer, at the time of conviction, at a disadvantage to                      
  obtain police reports, witness statements, the kinds of                      
  information necessary to further litigate the rest of the                    
  action - to present a restitution argument to a judge.  He                   
  claimed those are not available to a crime victim now.  MR.                  
  DEWEY said laws should be formulated to allow crime victims                  
  the ability to get restitution.  He reviewed a second                        
  provision in the act that absolves the Department of Law and                 
  prosecutors from liability for not doing what they are                       
  required to do under the act.                                                
  Number 485                                                                   
  MR. DEWEY said the results were, when the lawyer was not                     
  given the information by the prosecutor, to increase the                     
  expenses to the attorney representing the victim.  He                        
  claimed there was no definition, except for a broad policy                   
  sense, in the Victims Crime Act as to what damages are                       
  available to victims.  He gave some case histories to                        
  support restitution.  MR. DEWEY suggested the committee                      
  focus on the real victim's needs and work towards that end.                  
  He reviewed his reasons as to why the present act would not                  
  work and what is needed to put some teeth in the law to make                 
  it work.                                                                     
  When asked to summarize, MR. DEWEY reviewed his solutions to                 
  meaningful legislation to which a civil litigant is                          
  SENATOR DONLEY said that in 1987 he testified in support of                  
  a bill containing all of MR. DEWEY'S suggestions, but it was                 
  opposed by the Department of Law, the Governor's Office, and                 
  the court system.                                                            
  TAPE 93-60, SIDE A                                                           
  Number 001                                                                   
  SENATOR DONLEY claimed his legislation was killed by the                     
  bureaucracy and described an ingrained opposition to the                     
  proposals in HJR 43.                                                         
  There was some general conversation among the legislators,                   
  and MR. DEWEY resumed his criticism saying all of the                        
  provisions were in statute now.  He suggested the committee                  
  challenge the court system on the efficiency of the system                   
  and move forward to deal with the suggestions by SENATOR                     
  There was a review of the reasons for putting the Victims                    
  Crime Act into the Alaska Constitution by CHAIRMAN PORTER,                   
  mainly to protect the provisions in case the statutory                       
  rights come into conflict with the constitutional rights of                  
  the defendants.                                                              
  In answer to a question from SENATOR TAYLOR on what he would                 
  like to see in the bill, MR. DEWEY listed a definition of                    
  restitution in the constitutional provision written to have                  
  some meaning.  He said restitution presently has no meaning                  
  to a crime victim who wants to go to court to ask for                        
  restitution of nonspecific damages, and he explained why the                 
  present definition did not work.                                             
  Number 062                                                                   
  MR. DEWEY gave some suggested language that would protect                    
  the right of the victim to collect additional civil damages.                 
  SENATOR DONLEY clarified the language by explaining that                     
  victims of crime have greater rights than other people in                    
  civil court, because the previous Victims Rights Act                         
  provided fewer exemptions from the collection of restitution                 
  from people who committed the crime.  He explained how there                 
  was a more limited scope in present proceedings.                             
  MR. DEWEY explained how the view could be changed to make                    
  restitution simpler.                                                         
  SENATOR DONLEY concluded with a follow-up as to whether it                   
  would be appropriate to include victims in Section 1.                        
  CHAIRMAN PORTER and SENATOR TAYLOR discussed the role of the                 
  victim in the decision making stages and whether it belonged                 
  in Section 24, to keep the victim apprised of all                            

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