Legislature(1993 - 1994)

01/12/1994 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HJR 43 - PRINCIPLES OF PENAL ADMINISTRATION                                  
  Number 530                                                                   
  REP. BRIAN PORTER, prime sponsor of HJR 43, said he would                    
  explain the general provisions of bill and philosophy and                    
  then have the committee counsel and Department of Law (DOL)                  
  representative discuss it further.                                           
  Number 702                                                                   
  REP. PORTER stated in general terms that the bill provides                   
  two major sections.  One deals with the administration of                    
  penal justice.  He said Alaska's constitution provides first                 
  for the reformation of the offender and then the protection                  
  of the public.  He stated he would like to change the order                  
  to protection of the public, add community condemnation of                   
  the offender, and then the principle of reformation.                         
  REP. PORTER said the second section of the bill deals with                   
  victims' rights.  The rights of the criminal defendant have                  
  long existed in the U.S. and Alaska constitutions.  In                       
  balancing, Rep. Porter said it is appropriate for the rights                 
  of victims to have the same status, at least, as the rights                  
  of criminal defendants.  Some of the statutory rights that                   
  already exist for victims would be moved into the                            
  constitutional amendment and a couple more added.                            
  Number 954                                                                   
  DANIELLA LOPER, House Judiciary Committee Counsel, came                      
  forward to further explain the bill and answer questions                     
  from the committee.  She reiterated the two elements of the                  
  bill. The first section dealt with excessive punishment on                   
  the penal code.  The bill, for the first time, would                         
  establish a hierarchy of what the penal code is trying to                    
  establish.  Instead of just balancing the principles of                      
  reformation and protecting the public, the bill would have a                 
  hierarchy in saying that protecting the public is the first                  
  element.  The second element was the community condemnation                  
  of the offender; and the third was the principle of                          
  MS. LOPER stated that community condemnation of the offender                 
  comes from the Cheney case, decided in 1970, by the Supreme                  
  Court.  This is the foundation for the community                             
  condemnation amendment in the constitution.                                  
  MS. LOPER described the second section as relating to the                    
  rights of crime victims.  She referred to a handout in the                   
  packet entitled Rights and Current Law, which showed that                    
  the rights of crime victims are already established by                       
  Alaska statute and nothing new is added in the bill.  In                     
  addition, Ms. Loper stressed that there is not one sentence,                 
  clause, word or punctuation mark of this victims rights bill                 
  which in anyway repeals, amends or alters any constitutional                 
  or statutory right of a person accused or convicted of a                     
  crime.  She summarized existing rights that would be                         
  included in the constitutional amendment, including the                      
  right to be reasonably protected from the accused; to confer                 
  with the prosecution; treated with dignity, respect and                      
  fairness; restitution; be informed of and present at all                     
  criminal or juvenile proceedings; to be heard, upon request,                 
  at sentencing and when release from custody is being                         
  considered; and upon request, to be informed of the accused                  
  or offenders escape or release from custody.                                 
  Number 1443                                                                  
  REP. NORDLUND said in regard to Section 1 that the current                   
  constitution as it reads doesn't establish an order, it                      
  lists two things; and as he reads it, it doesn't necessarily                 
  state one as being more important that the other one.  He                    
  said he didn't mind having "community condemnation" in the                   
  bill, but wonders why the sponsor feels a need to establish                  
  an order when it's not an order already.                                     
  Number 1522                                                                  
  MS. LOPER responded that the principle of reformation was                    
  always listed first.  The Cheney case proves that all of                     
  this is considered in sentencing, but for the first time the                 
  need for protecting the public is first, and public                          
  condemnation of the offender is second.  She said she was                    
  sure it would be up to the discretion of the courts, and as                  
  in the Cheney case, they look at all the issues in mind.                     
  Number 1601                                                                  
  REPRESENTATIVE JAMES said that she supported the hierarchy                   
  listing because the general public has the assumption that                   
  protection of the public is not first, and she thinks the                    
  public would want that to be first.  The reformation of the                  
  criminal is certainly important and should be considered,                    
  particularly when you're talking about the penalty they are                  
  going to pay, so they should be given every opportunity to                   
  be reformed, if that is a possibility.  Rep. James                           
  emphasized that it should be put in the record that public                   
  safety is the very first issue.                                              
  REPRESENTATIVE GREEN stated he strongly supports the concept                 
  and wondered if the bill would in any way impact a liberal                   
  judge as unduly influencing the decision maker, and wondered                 
  if it had been looked at.                                                    
  MS. LOPER said it is up to the judge to develop the                          
  balancing scale, and the intent of the bill is to finally                    
  establish a balancing scale between the victim and offender.                 
  She said if a liberal judge did take a look at this, just                    
  being a judge would balance the scale out and balance the                    
  rights.  In addition, the language of the bill says "upon                    
  request," and it has already been going on for some years.                   
  She stated the bill is a balancing scale.                                    
  Number 1843                                                                  
  REP. PORTER added that a judge would be more prone to give                   
  weight to the right of the defendant if that right were a                    
  portion of the constitution, as opposed to just a statute,                   
  and that's the reason for moving these to the level of the                   
  constitution.  He said if the rights of the victim were                      
  raised up to this level, then it balances.                                   
  Number 1940                                                                  
  REP. DAVIDSON asked if the legal system so simplistically                    
  labeled judges as conservative or liberal, and what does                     
  this spectrum mean?  He asked where the term "community                      
  condemnation" came from and asked the Chair to expand on the                 
  Number 2047                                                                  
  MS. LOPER replied through the Chair that she didn't                          
  understand his question about liberals and conservatives.                    
  Number 2107                                                                  
  REP. DAVIDSON apologized for the mushiness of the question,                  
  and asked if Ms. Loper, within the legal system, recognized                  
  people as labeled liberal or conservative.                                   
  Number 2133                                                                  
  MS. LOPER said that removing liberal and conservative labels                 
  out of the arena would be a lot better, and if you try and                   
  label things too early, it would probably be to your own                     
  MS. LOPER returned to the question of community condemnation                 
  and said the bill packet contains the case State v. Cheney                   
  and an Alaska Law Review article, that list all the elements                 
  and exactly what they meant by community condemnation of the                 
  offender.  She said the court needs to be aware of what the                  
  community condemns.                                                          
  Number 2340                                                                  
  REP. DAVIDSON asked if there was a different condemnation                    
  standard for communities 99 percent white versus a community                 
  that is 38 percent Native.                                                   
  Number 2354                                                                  
  MS. LOPER replied absolutely not, because the bill is not                    
  comprised of any minority status at all, that it is the act                  
  itself that's being looked at (for example, murder), rather                  
  than the person that committed it.                                           
  Number 2421                                                                  
  REP. PHILLIPS commented that the packet shows 14 other                       
  states have amended their constitutions in a similar way and                 
  asked what if other states are considering changes to their                  
  constitutions also.                                                          
  Number 2440                                                                  
  MS. LOPER replied yes, and would find out for the committee                  
  the other states considering it.                                             
  Number 2507                                                                  
  REP. PHILLIPS voiced a point of concern to the Chairman,                     
  that since it is a constitutional amendment that the                         
  language on the ballot proposition be absolutely clear and                   
  correct, and asked that her comments be put on the record                    
  that should this go through they all make sure the language                  
  is correct.                                                                  
  Number 2544                                                                  
  REP. PORTER edified for the audience that the bill before                    
  the committee is a resolution that would allow the public to                 
  vote on whether or not the constitution should be amended to                 
  include these provisions.                                                    
  Number 2610                                                                  
  REP. NORDLUND asked to hear what the practical impact would                  
  be in terms of more people being put away for a longer time,                 
  and how is it going to affect the criminal justice system.                   
  He suggested their might be some confusion about the word                    
  community in community condemnation and said that societal                   
  condemnation would be a better word.                                         
  Number 2651                                                                  
  REP. PORTER explained that the phrase is one that's used by                  
  the Supreme Court, and since they will be interpreting the                   
  bill, and it's their phrase, it shouldn't be a problem.                      
  Number 2729                                                                  
  REP. KOTT commented that when changing the constitution we                   
  have to be very careful; and victims' rights historically                    
  had been at the bottom of the ladder.  He asked Ms. Loper                    
  why that occurs in spite of having the issue in statute and                  
  having the equal protection clause in the constitution.                      
  Number 2828                                                                  
  MS. LOPER used the analogy of freedom of speech being in                     
  statute versus the constitution, and said victims' rights                    
  need to be in the constitution to prevent future                             
  legislatures from changing or removing it again.  She said                   
  having a constitutional right to attend a hearing is a                       
  little different than a statutory right, because it carries                  
  greater weight.                                                              
  Number 2926                                                                  
  REP. KOTT asked why victims at this point have not been                      
  given that right.  He also asked if it's a real problem we                   
  need to correct, or is it something we just want to elevate                  
  to a different level to ensure that a problem does not occur                 
  at a future time.                                                            
  MS. LOPER replied that everyone in this country is given due                 
  process, it seems like, except crime victims.  The accused                   
  are given due process and essentially, notice, but crime                     
  victims are not.  She further stated that this gives the                     
  victim the same constitutional right to attend the                           
  proceedings as the accused.                                                  
  Number 3051                                                                  
  REP. DAVIDSON asked why this greater weight idea was not                     
  discussed by the framers of our constitution.                                
  Number 3141                                                                  
  MS. LOPER replied that she could not answer Rep. Davidson's                  
  question, but the important idea was that we have a chance                   
  Number 3200                                                                  
  REP. PORTER also responded that what existed at the time the                 
  U.S. Constitution was framed was who was the victim and who                  
  was the offender, and it was the government that was the                     
  offender and all of us were the victims, which is why the                    
  country was formed.  He said that was the perspective from                   
  which the Bill of Rights was adopted, and in almost all                      
  cases the Bill of Rights has been transported to states'                     
  constitutions.  Rep. Porter expounded on the theme and                       
  concluded that it has reached a point where we've gone                       
  overboard and it needs to be balanced again.                                 
  Number 3304                                                                  
  REP. GREEN concurred with Rep. Porter's assessment of the                    
  Number 3314                                                                  
  REP. JAMES  responded that we all have rights until we run                   
  into someone else's and that's where we have to define it,                   
  so we can say our rights only go so far, and when it                         
  involves someone else's rights we have to determine which                    
  comes first.                                                                 
  Number 3407                                                                  
  REP. KOTT asked if there are any initiatives being proposed                  
  by the national authorities regarding this issues.                           
  Number 3440                                                                  
  MS. LOPER replied that it is being looked at by a man named                  
  Steve Twist, and there is a national organization working at                 
  the state level.  If enough states pass legislation it                       
  should create enough momentum to change the U.S.                             
  Number 3605                                                                  
  JANICE LEINHART with Victims for Justice testified in                        
  support of the legislation.  She suggested adding language                   
  to the bill that victims "be informed of rights herein."                     
  REP. NORDLUND asked the sponsor if there would be two                        
  separate amendments to the constitution based on this bill.                  
  REP. PORTER responded that it would amend one section and                    
  add another, but would be one vote, one issue, and one                       
  ballot proposition.                                                          
  Number 4107                                                                  
  REP. NORDLUND followed up by asking what if someone goes to                  
  the polls and wants to vote yes on one section and no on the                 
  other.  He commented that they are two completely separate                   
  Number 4120                                                                  
  REP. PORTER responded that to him they addressed the same                    
  basic proposition, and that community as opposed to criminal                 
  defendant should have equal status.                                          
  Number 4142                                                                  
  DEAN GUANELI, Assistant Attorney General, Criminal Division,                 
  Department of Law, stated that he knew very little about the                 
  single subject requirement and would check on that, but                      
  first the administration supports this resolution.  He                       
  explained why, starting with the rights of crime victims.                    
  He said there is a statute on the books that gives crime                     
  victims certain rights.  One of the primary differences with                 
  the proposed constitutional amendment is a clause that                       
  provides a right to a timely disposition to the case                         
  following the arrest of the accused.  Mr. Guaneli said this                  
  would not require a defendant  to go to trial before they                    
  are prepared, but would require a judge to think carefully                   
  about whether to grant that fourth or fifth postponement of                  
  the proceedings.  Further, he said, it will tend to level                    
  the playing field among victims and defendants of crimes,                    
  but will not give crime victims all the same rights as                       
  defendants.  For example, it will not give victims the right                 
  to a court appointed attorney to represent them in the                       
  MR. GUANELI said he thinks the critical phrase in here is                    
  that they have a right to be treated with dignity, respect                   
  and fairness.  He used another example where a victim of an                  
  assault has all of his or her past conduct paraded before                    
  the jury, to be basically labeled a violent, aggressive                      
  person, when at the same time the jury is not allowed to                     
  hear about the defendant's own past violent tendencies.                      
  TAPE 94-1, SIDE 2                                                            
  Number 017                                                                   
  MR. GUANELI moved on to the other provision and said it                      
  affects the criminal justice system in two distinct ways.                    
  One, it tends to affect the sentencing process and two, it                   
  tends to affect the way the prisons are administered, which                  
  provides some appropriate guidance for the courts.                           
  In response to a question raised earlier by Rep. Nordlund,                   
  MR. GUANELI replied that the state already has a very                        
  detailed sentencing system called presumptive sentencing,                    
  which sets out in a fair amount of detail what kind of                       
  sentences the judges are supposed to impose in run-of-the-                   
  mill cases that fit in with certain criteria.  He continued                  
  by saying there are cases that don't fit neatly within the                   
  presumptive sentencing system, and in those instances the                    
  courts look to what the Supreme Court has said, and as                       
  mentioned earlier, comes from the Cheney case.  The court                    
  sets out five criteria for judges to set sentences.  He                      
  briefly described the criteria:  1) isolation of the                         
  offender; 2)  deter others; 3) deter individual from doing                   
  it again; 4) community condemnation; and 5) rehabilitate the                 
  Number 208                                                                   
  MR. GUANELI continued his testimony, saying that the Supreme                 
  Court has never really articulated how these are to be                       
  weighed; it is left to the discretion of the judge.  He                      
  cited examples of how the court might weigh various crimes.                  
  He said that when everything else is equal, the need to                      
  protect the public ought to be considered first.  He made a                  
  comment regarding the phrase "community condemnation",                       
  saying he could envision cases where it might not be                         
  appropriate to send someone to jail for any other reason                     
  than community condemnation.  He cited an example where a                    
  person may have suffered shame, etc., and the judge                          
  sentenced the person because of public outrage by what                       
  happened.  By that reason alone, that person ought to spend                  
  some time in jail.  The Supreme Court has recognized this as                 
  an appropriate situation in sentencing for over twenty                       
  years, and there is no reason why that can't be in the                       
  constitution.  He said he didn't have any strong feelings                    
  about whether the phrase is "community condemnation" or                      
  "societal condemnation."                                                     
  MR. GUANELI discussed how this legislation affects penal                     
  administration and how the prisons are run.  He said it's                    
  probably a good idea that the people of this state tell the                  
  Department of Corrections (DOC) and the executive branch "we                 
  want you to be careful, we want to be protected from the                     
  people who have been imprisoned."  He also said that it's a                  
  good idea that the principle of reformation stay in the                      
  constitution.  The Supreme Court has said that prisoners at                  
  least have a right to expect that the state will try to                      
  reform them and make some efforts, but it shouldn't be the                   
  overriding consideration, and particularly when we are                       
  telling the DOC to put more and more people out into the                     
  community.  The public has a right to expect they are going                  
  to do that carefully.                                                        
  Number 620                                                                   
  REP. KOTT asked Mr. Guaneli about the clause referring to                    
  the right to fairness during all phases of the criminal                      
  justice process and wondered if that could be construed by a                 
  judge to provide counsel to the victim.                                      
  Number 635                                                                   
  MR. GUANELI answered that he supposed a judge could read                     
  into this what a judge wants to read into this, but there's                  
  nothing in the legislation that's similar to constitutional                  
  provisions, such as the right to counsel, that have been                     
  interpreted to require publicly financed attorneys.                          
  Number 801                                                                   
  REP. KOTT moved to adopt the committee substitute (CS) for                   
  HJR 43.                                                                      
  Number 834                                                                   
  REP. PORTER said that without objection, CS for HJR 43 had                   
  been adopted, and asked for discussion on the motion to move                 
  CSHJR 43 out of committee.                                                   
  Number 842                                                                   
  REP. NORDLUND asked if the committee could get an answer                     
  about combining the two subjects on one ballot measure.                      
  Number 849                                                                   
  REP. PORTER stated he would ask Ms. Loper and Mr. Guaneli to                 
  make that analysis as soon as they could, and if it does                     
  present a problem, he would ask the Speaker to send it back                  
  and the committee can separate it.                                           
  Further discussion occurred on the subject of the ballot                     
  language and general discussion took place about the                         
  Number 1630                                                                  
  REP. DAVIDSON requested a fiscal note from the DOC before it                 
  goes to the floor.                                                           
  Number 1356                                                                  
  REP. PORTER requested a roll call vote.  The committee voted                 
  unanimously to move the bill out of committee with                           
  individual recommendations.                                                  
  Number 1702                                                                  
  REP. PORTER announced that SB 45 was the next order of                       

Document Name Date/Time Subjects