Legislature(1993 - 1994)
11/16/1993 09:00 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 organization. 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 consideration. 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 system. 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 audience. 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 interpretation. 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 this. 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 important. 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 legislation. 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 entitled. 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 DONLEY. 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 proceedings.