Legislature(1993 - 1994)
01/12/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 reformation. 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 meaning. 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 detriment. 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 now. 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 problem. 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. Constitution. 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 issues. 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 proceedings. 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 person. 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 resolution. 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 business.