Legislature(1993 - 1994)
11/16/1993 09:00 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN ROBIN TAYLOR called the Joint Senate and House
Judiciary Committee to order and invited REPRESENTATIVE BRIAN
PORTER to begin the meeting.
REPRESENTATIVE PORTER recognized committee members from the
House Judiciary Committee present: VICE-CHAIR JEANNETTE JAMES,
MAJORITY LEADER GAIL PHILLIPS, REPRESENTATIVE JOE GREEN,
REPRESENTATIVE JIM NORDLUND, and REPRESENTATIVE CLIFF DAVIDSON
testifying via teleconference from Kodiak. He introduced both
his legislative aide, ERIC MUSSER, and the House Judiciary
Counsel, DANIELLE ROPER.
SENATOR TAYLOR also reported a quorum of the Senate Judiciary
Committee with the appearance of SENATOR DAVE DONLEY and
SENATOR SUZANNE LITTLE.
REPRESENTATIVE 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 this time, REPRESENTATIVE PORTER welcomed REPRESENTATIVES
CON BUNDE and ED WILLIS, and announced the committee was now
connected by teleconference to Barrow, Ketchikan, Kodiak, and
Kotzebue.
REPRESENTATIVE 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, REPRESENTATIVE 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
REPRESENTATIVE 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." REPRESENTATIVE 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." REPRESENTATIVE 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, REPRESENTATIVE 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.
REPRESENTATIVE 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.
REPRESENTATIVE 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 REPRESENTATIVE 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 proposed to remove these protection 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 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, REPRESENTATIVE 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 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
REPRESENTATIVE 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.
REPRESENTATIVE 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. REPRESENTATIVE
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 over ridden 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, and 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.
REPRESENTATIVE PORTER next called on REPRESENTATIVE BUNDE, who
asked about the opposition to the victim's rights amendment.
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, and 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 that 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. REPRESENTATIVE 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.
Number 207
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 REPRESENTATIVE 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. REPRESENTATIVE 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 REPRESENTATIVE 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,
and 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.
Number 359
SENATOR DONLEY asked MS. AKERS for some additional information
on principles not directly in the victim's rights area, and
she 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
REPRESENTATIVE 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.
Number 499
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 REPRESENTATIVE
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 non-specific 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.
REPRESENTATIVE 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.
Number 118
REPRESENTATIVE PORTER relinquished the committee chair to
SENATOR TAYLOR, who announced the hearing on HB 162 (CAPITAL
PUNISHMENT FOR MURDER) and SB 127 (CAPITAL PUNISHMENT FOR
MURDER). SENATOR TAYLOR explained there would be a balance
of testimony on both sides of the issue.
(There was a pause in the proceedings.)
Number 346
SENATOR TAYLOR called the meeting back to order and gave some
background information when he co-sponsored a similar bill six
years ago. He said this was the first hearing to be held in
ten years on this issue. He further said he hoped the debate
would reach the floor in both houses for a vote, and he thinks
there should be a point in time when the death penalty should
be used at the discretion of the jury.
SENATOR TAYLOR spoke about the differences in the two bills,
but felt there could be some modifications in both. He then
invited REPRESENTATIVE SANDERS to give an overview of his
bill, HB 162.
REPRESENTATIVE SANDERS thanked those present who came to
discuss capital punishment, saying it has needed to be
addressed for many years. He claimed the will of the people
has been thwarted in past attempts to institute the death
penalty.
Number 404
REPRESENTATIVE SANDERS explained the bill seeks the death
penalty in cases of First Degree murder with aggravating
circumstances. He further explained that if the legislation
is passed by the legislature, it would go the public for an
advisory vote. REPRESENTATIVE SANDERS claimed the people of
Alaska have been in favor of the death penalty by 75 to 85%
in the different polls. He feels the death penalty would be
a deterrent and was supported by the will of the people. He
then turned the remainder of the overview over to his aide,
ELIZABETH BELLINGHIRI.
MS. BELLINGHIRI suggested that rather than giving a sectional
analysis, she would defer to JERRY LUCKHAUPT, the attorney who
drafted both capital punishment bills. REPRESENTATIVE SANDERS
checked to be sure MR. LUCKHAUPT would point out the
differences in the two bills.
REPRESENTATIVE PETER KOTT asked to question MS. BELLINGHIRI
as to his understanding the only difference in the two bills
was the prosecutorial discretion in the House version as to
the treatment of the offenders and the impact on the fiscal
notes.
Number 454
MS. BELLINGHIRI noted the fiscal notes were similar as
presented by the Department of Law despite the text change to
reflect the prosecutorial discretion. She said the fiscal
note for SB 127 should be approximately four times greater
than for HB 162 based on figures from the Department of Law.
She reviewed their analysis of the statistical manner on which
they based their costs and explained why the fiscal impacts
were not really similar. The Department of Law decided to
change their fiscal note for the Senate version to make it a
more accurate reflection.
MS. BELLINGHIRI explained what she called a "brief difference"
in the two bills, and she further explained the use of the
prosecutorial discretion to preserve the integrity of the
system. She said the discretion provision was to be used in
heinous situations where death was a possible sentence,
otherwise, she explained the two bills were the same. Without
prosecutorial discretion, MS. BELLINGHIRI said the legislation
opened the doors to litigation.
Number 499
SENATOR TAYLOR asked MR. LUCKHAUPT, Legislative Counsel for
Legal Services, to testify on the two bills.
MR. LUCKHAUPT began by noting both bills were drafted by him
in similar fashion but were based on different versions of
death penalty bills from the Fifteenth and Sixteenth
Legislature. He explained SB 127 was from a bill co-sponsored
by SENATOR TAYLOR from the Fifteenth Legislature that actually
passed the Senate that year, but did not proceed from there.
He also explained the bills had been updated over the years
to reflect the U. S. Supreme Court Cases on the death penalty
issue.
MR. LUCKHAUPT said the death penalty issue is one of the most
litigated issues to be found, but the direction from the
supreme court has made the bills easier to draft, such as to
narrow the discretion of the jury to the particularized nature
of the crime and the particularized characteristics of the
defendant. The narrowing of this focus permits the imposition
of the death penalty.
MR. LUCKHAUPT then reviewed the differences such as "findings"
in HB 162, but not in SB 127. He said these findings are for
the legislature to decide whether or not to use.
MR. LUCKHAUPT gave a comprehensive sectional analysis of both
bills.
TAPE 93-60, SIDE B
Number 001
This tape began with SENATOR DONLEY asking questions about the
aggravators. MR. LUCKHAUPT answered that in order to impose
the death penalty on someone convicted of First Degree murder,
at least one of the statutory aggravating factors, given later
in the bill, must be present. SENATOR TAYLOR asked if they
were specific to this death penalty, and MR. LUCKHAUPT said
they had been added in 1992.
MR. LUCKHAUPT continued with the sectional analysis and
expanded on some of the points which would provide for a
bifurcated trial and some options.
Number 125
REPRESENTATIVE PORTER asked MR. LUCKHAUPT if the burden of
proof for the jury in finding the aggravating factor must be
unanimous and beyond a reasonable doubt. Once that is found,
if they balance that and any other aggravating factors against
any mitigating factors they have found to a preponderance of
the evidence, which is a lower standard.
MR. LUCKHAUPT quoted the supreme court as saying that once the
aggravating factor is found beyond a reasonable doubt the case
is then eligible for the death penalty, and the mitigating
factors end up being a way to determine whether or not the
death penalty should be imposed. There was a general
discussion of mitigating and aggravating factors and the
problems of proof.
Number 375
SENATOR HALFORD spoke about the Court of Appeals as being
totally a legislative creation and questioned whether the
legislature could define the Court of Appeals by statute. He
said the Court of Appeals is not constitutional nor is it
constitutionally protected.
MR. LUCKHAUPT said the bill had changed the jurisdiction of
the Court of Appeals by not allowing them to hear capital
offenses. In answer to a question by SENATOR HALFORD, MR.
LUCKHAUPT argued it was not a rule change.
SENATOR HALFORD asked if the legislature, by simple majority,
could repeal the existence of the Court of Appeals, which was
created by simple majority. MR. LUCKHAUPT believed they
could.
Number 414
SENATOR TAYLOR asked MR. LUCKHAUPT to be available for
questions after lunch.
(The committee recessed for lunch.)
SENATOR TAYLOR reconvened the meeting in the midst of
questions to MR. LUCKHAUPT by SENATOR HALFORD on the standards
for the use of the aggravator and the mitigator.
MR. LUCKHAUPT explained the court would rule on the relevancy
of the mitigating factor. SENATOR HALFORD continued to
question MR. LUCKHAUPT closely on the use of the mitigating
factors and where they are found. MR. LUCKHAUPT said the
court could not limit the number of mitigators that go to the
jury, so there is no way to list them - but the judge must
allow any relevant mitigating evidence to go to the jury.
If the list can not be constitutionally contained, SENATOR
HALFORD asked if there were any parameters, and MR. LUCKHAUPT
quoted from supreme court decisions that would allow any one
juror to hang the process. SENATOR HALFORD wanted to know to
what extent the legislature can make the statute work, because
he was concerned the legislature would be creating something
that cannot ever be used.
SENATOR TAYLOR expressed interest in a more complete answer
to the use of mitigating factors as used by the other thirty
seven states that have a death penalty statute on their books.
Number 499
SENATOR DONLEY asked to add a caveat to the question asking
how many of those state have parallel provisions in their
constitution.
MR. LUCKHAUPT began his explanation by discussing the balance
of reformation with the protection of the public, and he
repeated testimony from the constitutional convention. He
said some of the Western states had comparable language, but
it was difficult to find a state that makes a perfect match.
He also explained HB 162 and SB 127 were based on the Georgia
system, which is used the most in the thirty seven states that
allow capital punishment. He reviewed similar systems from
other states.
MR. LUCKHAUPT said when the death penalty was struck down in
1968 by the U. S. Supreme Court, they struck down a series of
state laws that required mandatory imposition of the death
penalty for various crimes. States, such as Georgia, adopted
a system approved by the supreme court in the early 1970's.
TAPE 93-61, SIDE A
Number 001
This tape picks up the question and answer session by SENATOR
TAYLOR and SENATOR HALFORD with MR. LUCKHAUPT, who was
explaining additional aspects of the death penalty, including
the length of time served by people on death row. He reviewed
the number of appeals that could be made in Alaska, even with
the new legislation.
MR. LUCKHAUPT said the lack of prosecutorial resources could
hamper the use of the death penalty in Alaska, and he reviewed
the problems involved in prosecuting a death penalty case. He
offered to do some additional research on the constitutional
limits.
REPRESENTATIVE PORTER presented two understandings and asked
MR. LUCKHAUPT to comment. MR. LUCKHAUPT explained the voir
dire procedure where, before the trial, the two sides talk to
the jury to determine what they know about the case and their
feelings about the death penalty. He also explained the role
of the judge and new juries in this action.
REPRESENTATIVE PORTER asked if there was anything in the bills
that would alleviate the concerns people have at the lapsed
time between conviction and the execution sentence.
MR. LUCKHAUPT talked about the limitation on the Court of
Appeals in the bills and the provision for direct appeal to
the Alaska Supreme Court, which can remove about a year from
the appellate process. He described proposals in the federal
system to streamline the Federal habeas corpus procedures, but
he said it did not impact the bills. MR. LUCKHAUPT didn't
hold out much hope for speedy trials.
Number 093
REPRESENTATIVE GREEN asked for some understanding on the
procedure. For instance, what if the defendant pleads guilty,
would there still be a long drawn out process. MR. LUCKHAUPT
explained, under SB 127, if the defendant pleads guilty to
first degree murder, the death penalty phase of the sentencing
proceedings would begin. Under HB 162, if the prosecutor has
not elected to seek the death penalty, even if the defendant
pleads guilty, there would be no death penalty phase. If the
prosecutor elects to seek the death penalty, or if the
defendant pleads guilty without a plea bargain as to a life
sentence, then the death penalty phase would begin.
REPRESENTATIVE GREEN read from HB 162 and asked about the
jury. MR. LUCKHAUPT explained the role of the jury in the
sentencing phase of the trial, or in the case of the judge
hearing the case, a jury would have to be convened to hear the
sentencing phase. They continued to discuss these provisions
at some length.
Number 190
SENATOR DONLEY returned to constitutional issues and directed
MR. LUCKHAUPT to page 9 of a memorandum from JACK CHENOWETH,
an attorney from Legislative Legal Counsel, for his opinion
on the test for constitutionality under Article 1, Section 12,
and asked if he shared the same opinion as MR. CHENOWETH.
MR. LUCKHAUPT expressed no problem with MR. CHENOWETH'S
conclusion or his reasoning and explained there would be no
way to predict what the Alaska Supreme Court would do under
a challenge. He cited the Raven Case as an example in Alaska
and summarized conclusions from other states.
SENATOR DONLEY asked MR. LUCKHAUPT on what he based his
analysis of the law and gave an example from a previous
meeting on the "rule of evidence" where the courts refused to
recognize "legislative intent." SENATOR DONLEY wanted to know
if his analysis was based on what a neutral tribunal would do
or take into consideration the unique characteristics of
Alaska.
MR. LUCKHAUPT explained that all of the considerations were
factored into his decision, and he noted the inclination of
the Alaska Supreme Court to utilize the state constitution to
justify or strike down various actions of the legislature or
the executive branch. As a general rule, supreme courts in
other states have not been too active in the enforcement of
their own constitutions, but Alaska has been different. He
thought the Alaska Supreme Court has acted in a liberal manner
in defendant's rights but felt there has been a change in the
supreme court over the last few years, which he also felt has
mirrored the changing perception about crime by residents.
Number 276
SENATOR DONLEY again expressed his concerns about how the laws
could be made constitutional, and he referred to several
points of concern in both MR. CHENOWETH'S and MR. LUCKHAUPT'S
memorandums. SENATOR TAYLOR assured him there would be more
hearing on the death penalty bills.
SENATOR TAYLOR brought the questioning to a close to allow
more time to hear from others, beginning with EDWARD MCNALLY,
District Attorney for the Third Judicial District in Anchorage
and DEAN GUANELI, Chief of the Legal Services Section of the
Criminal Division, on the teleconference line from Juneau.
MR. MCNALLY expressed his appreciation at being able to
participate in the discussion and acknowledged those who had
championed the battle for capital punishment. He began by
conveying the support of GOVERNOR WALTER HICKEL for the
efforts of the committee and the governor's promise to sign
any legislation that would ensure that "cop killers, and
others guilty of vicious and heinous murders in Alaska will
face the full range of constitutionally approved penalties."
MR. MCNALLY also brought the personal thanks of ATTORNEY
GENERAL CHARLIE COLE, who regrets that he was unable to
participate in person. He explained that both the governor
and the attorney general had made the death penalty and the
battle against violent crime a top priority.
Number 333
MR. MCNALLY proposed questions to be asked of those who oppose
the death penalty, and he began with some background material,
including "the death penalty is in effect in Alaska, today for
R.D. CHEELEY. PRESIDENT BILL CLINTON is working to add forty
seven new categories to the laws that will be effect in the
State of Alaska through the Federal Court System."
MR. MCNALLY noted the trial would take place in Portland,
Oregon, and he asked the participants where they would prefer
to see the case heard.
MR. MCNALLY then focused on the governor's concern for "cop
killers" and the change in attitude of the offender towards
the police. He said today the police are the first ones shot
and targeted by criminals armed with a staggering array of
weapons. He reminded the committee of the weapons shown in
a previous meeting, and he presented a case history of a
heinous crime against a police officer by a juvenile with one
of these weapons.
Number 408
MR. MCNALLY presented some background information on the
sentencing procedures in Alaska and in other states where they
have capital punishment. He asked why the prosecutors in the
State of Alaska do not have the same tools as the prosecutors
on the federal level, with the full array of penalties on the
books. MR. MCNALLY urged a response from opponents of capital
punishment.
When talking about costs, MR. MCNALLY gave a perspective on
the cost of not having a death penalty. He thought there were
many cases that could be "disposed of" short of a trial, thus
saving on cost. He offered the statistic of 30,000 policemen
and women being killed in this country since it was founded,
twenty six of whom were killed here in Alaska. He said these
figures don't take into account the wounded, the disabled, and
the suffering of the families of the officers.
Number 462
MR. MCNALLY said the Alaskan Troopers and cops deserve all the
protection the law passed by the legislature can offer, and
criminals need to understand that in Alaska, if you shoot a
cop, you will be severely punished .... possibly with their
life. He returned to fiscal notes and budget considerations
and observed that the cost of the fiscal notes are unknown and
resource determinations are made every day when they are
screening 1,400 felony cases a year. MR. MCNALLY urged the
legislators not to make fiscal notes an obstacle to the
proposed legislation.
MR. MCNALLY said the death penalty was warranted in Alaska for
two principal reasons: first, because it can deter certain
crimes involving premeditation and calculation, and second,
society has the right to exact a just and proportionate
punishment for reprehensible offenses. He gave two examples
to prove his case for the death penalty.
TAPE 93-61, SIDE B
Number 001
MR. MCNALLY gave the following statement: "a criminal justice
system that is limited like ours, only to lesser sanctions,
is lacking in adequate deterrents and fails to meet our
community standards, and their need to exact a just and
proportionate punishment for the gravest offenses."
MR. MCNALLY enumerated the reasons given for criminal
behavior, but he rejected those in favor of designating
criminal behavior as a choice between good and evil.
MR. MCNALLY concluded by describing the memorial placed in
Washington D. C. to the slain police men and women of the
United States, as well as the memorial at the State Trooper's
Headquarters in Anchorage with the names of the twenty six
officers attached to a statute of an Alaskan law enforcement
officer. He offered his services as well as those of DEAN
GUANELI in Juneau to answer questions on the fiscal notes.
Number 067
SENATOR TAYLOR thanked MR. MCNALLY for his presentation, but
he requested the deferment of questions to allow persons on
the other side of the issue to testify. He then called on
JOHN SALEMI, Director of the Public Defender Agency, and BRANT
MCGEE, Director for the Office of Public Advocacy to testify.
MR. SALEMI spoke to the issue he thinks binds all persons in
the room together, which is our perception that we need to do
something in this nation, in this state, and in this community
to enhance the public safety of law abiding citizens. He
suggested that people were attending the meeting to support
the bills because they are frightened and frustrated by crime,
and they wanted solutions.
Number 102
MR. SALEMI would not characterize himself as someone who was
trying to defeat an enactment of the death penalty, but as a
person just as concerned as the participants in the meeting
over public safety issues. He explained he planned to present
some information so the public could make an informed decision
about how to use the finite resources that we have in this
state to fight crime, to provide rehabilitation, and to
prevent further victimization of the populace.
MR. SALEMI spoke to the perception that capital punishment
deters crime, which he classified as logical and rational.
He quoted REPRESENTATIVE SANDER'S view that the death penalty
would deter criminals, and he described a "stack of studies"
which indicates that capital punishment does not have a
deterrent effect. He asked the participants to look at more
obvious evidence, which he said was thirty seven large-scale
experiments - the states that have the death penalty, some for
many years.
MR. SALEMI explained there were no statistics from the thirty
seven states that gave evidence the death penalty had deterred
violent crime or homicides. "In fact," he said, "much of the
evidence suggests just the opposite, there is no significant
impact."
MR. SALEMI acknowledged that society is apparently becoming
increasingly dangerous, but those tools employed are not
working to fight crime. He listed capital punishment as one
of those failed experiments. He explained that if the death
penalty is removed as a deterrent to crime, it leaves only one
other strong or compelling use, which is to re-affirm the
values of society - possibly a moral judgement.
Number 158
MR. SALEMI discussed the down side in using capital punishment
to achieve retribution, the first being the expense, and he
respectfully disagreed with MR. MCNALLY on the resource
decisions, and drew on the experience of other jurisdictions
to speculate that it would be enormously expensive to employ
capital punishment in this state. He quoted the prevailing
belief that it is just the cost of law enforcement, the cost
of justly punishing people.
MR. SALEMI enumerated a list of what he considered the crimes
that really affect individuals on a large scale basis: drug
trafficking, burglaries, auto theft, property damage, sexual
abuse, and more. He explained the money that would go towards
processing the death penalty cases would be detracting from
efforts of law enforcement in addressing the crimes that
affect all of us on a very regular basis.
MR. SALEMI described the justice system as being frail, the
probability capital punishment would be instituted in the
state, and that innocent people would be executed. He said
no matter how many resources are spent on the legal process,
mistakes will be made, and he reviewed all the procedures that
might go wrong on all levels of a death penalty case. MR.
SALEMI said these cases can be documented.
Number 274
MR. SALEMI explained that both he and MR. MCGEE would need
larger budgets to process capital punishment cases. He listed
what he considered better uses for the money, and he suggested
using it for the education of people on crimes and deterrents.
He offered each member of the committee packets of information
on studies about capital punishment. He concluded by urging
people to go beyond the emotional components and look at the
practical effect of sound public policy.
Number 346
MR. MCGEE described his agency, the Office of Public Advocacy,
as small, expending about $6.4 million in public funds in the
representation of about 10 thousand citizens in the state,
with primary responsibility to abused and neglected children,
incapacitated persons, and indigent criminal defendants when
the court has determined the Public Defender Agency has a
conflict of interest.
MR. MCGEE said among his primary responsibilities is cost
control, because nearly two thirds of the cases, for which he
is responsible, are performed by private contractors and court
appointed professionals throughout the state. He said he had
become a student on the costs of the death penalty over the
past few years because it has been considered before.
MR. MCGEE expressed pleasure at being able to share his
personal research information, and he referred to a New York
study in 1982 which determined the average cost for each death
penalty case at $1.8 million. He extrapolated that to $2.5
million per case in 1996 dollars, and he said it did not point
to the real costs in every case.
Number 380
MR. MCGEE reviewed expenditures in California of $593 thousand
for trial costs alone, with one case in which they expended
over $5 million, and in one county, California contracted with
six private defense counsels to represent three separate
criminal defendants at $450 thousand per defendant per trial.
In 1988 California is spending over $90 million a year on
capital cases, and since capital punishment was instituted 11
years ago the costs have amounted to about $750 million. He
said California just executed their first person earlier this
year.
MR. MCGEE explained the prosecution failure rate is quite high
on the number of people actually executed as opposed to those
for whom the death penalty is pursued. The trial costs alone
in California is about $6 million before the person is put on
death row. He further explained in Florida the cost is $3.2
million per execution.
MR. MCGEE presented the combined fiscal notes for the Alaska
Court System, the Department of Law, the Public Defender
Agency, and the Office of Public Advocacy which would total
over $21 million in the first four years from the enactment
of the death penalty. He claimed the figure would likely
double during the first ten years, and it would be at least
eight to ten years before the first Alaskan defendant is
executed, which would mean Alaska would spend at least $40 to
$50 million before the first Alaskan defendant is executed.
Number 414
MR. MCGEE stressed the importance of the impact on the scarce
resources in the state in relation to the experiences in other
states, and he quoted California as devoting half the time of
their supreme court to death penalty cases. Currently none
of the Alaskan Supreme Court time is used on death penalty
cases, but MR. MCGEE contended there would be tens of
thousands of Alaskans, who are trying to get into District
Courts, Small Claims Court, Superior Court, and the Alaska
Supreme Court who would have to wait their turn in line. He
further contended there would be a dramatic slowing of the
process of both criminal justice in other cases and civil
justice in all cases, if the legislature enacts a law that
mandates the expenditure of vast public resources on just a
few cases.
MR. MCGEE disagreed with MR. MCNALLY as to the extent of the
costs, and he encouraged legislators to become informed on the
vastly expensive undertaking that should go forward only with
very good reasons. In his own agency, MR. MCGEE described how
his representation of other individuals within his statutory
mandate would suffer if he had death penalty cases, since they
would be the highest priority cases in every office in which
they are housed. He offered to respond to any specific
questions and to share his research information on other
aspects of the death penalty.
Number 461
SENATOR TAYLOR thanked both MR. SALEMI and MR. MCGEE, praised
their professional presentations, and assured them they would
be involved in additional debate.
Next, SENATOR TAYLOR invited SHARON NAHORNEY, who testified
as a member of a family of victims of violence. She thought
it was important to keep the death penalty issue before the
legislature, because they will realize it is a just law, and
a "must have" law for the State of Alaska to maintain a safe
and sane society.
MS. NAHORNEY suggested that money could be saved by not
providing law libraries and law degrees for prisoners to
create more appeals that come back through the court system.
She ask them to consider how to calculate the cash value of
avoiding murders and the value of the life of a loved one.
MS. NAHORNEY thought the capital punishment bill was necessary
to protect our community, and she felt the death penalty can
be a key anti-weapon and a major deterrent. She cited seven
and a half years as the average life sentence for murder
across the nation, putting them out to walk among us. She
didn't think this time period was enough, that crime was
repetitive and seasoned criminals come out to re-offend. She
gave some histories to defend her statements.
Number 499
MS. NAHORNEY described the new breed of criminals raised on
crack and more prone to violence, bring about an increase in
homicides. She reviewed the statistics of those favoring the
death penalty, the problems in rehabilitation, and the release
of criminals due to prison overcrowding. She recommended more
prisons if there is not to be a death penalty, and she blamed
the courts for being too concerned with the rights of the
prisoners rather than the rights of society. She said a
constitutional amendment must be passed to give victims equal
rights to perpetrators.
MS. NAHORNEY reviewed a series of studies on the low number
of criminals committed for their crimes, the rise in crime
rates, and the lack of protection for society.
TAPE 93-62, SIDE A
Number 001
Testimony continued from tape 3 on the "Gillmore Effect" where
publicized harsh punishments appear to contribute to lower
rates of violent crime, while unpublicized harsh punishments
have no affect on the rate of violent crime.
MS. NAHORNEY believes that had a death penalty been in effect
in 1985 when her family was murdered, it would have been a
sufficient deterrent to the murderers to have prevented the
crime.
Number 071
TED LEMAIRE, the grandfather of a victim, MANDY LEMAIRE,
testified he left the lower forty-eight to escape rising crime
rates, and he encouraged the legislature to look at anti-crime
legislation. Despite the fact that his eleven-year-old
granddaughter was kidnapped, sexually assaulted, and murdered,
he remains opposed to the death penalty. He has accepted her
death.
MR. LEMAIRE considers the real problem to be crime. He
advocates dealing with crime, but not through the death
penalty. He believes crime will affect all people at some
point in their lives.
Number 131
MR. LEMAIRE continued, saying the death penalty will not deter
a criminal, nothing will deter a criminal. In his grand-
daughter's case, he said the criminal had stalked several
other girls before killing his granddaughter. He explained
the difference between us and the criminal is that we can be
deterred by a host of things and the criminal cannot.
MR. LEMAIRE referenced an occurrence several months ago of a
confrontation between a gunman and police officers at Tudor
and Muldoon in Anchorage where the gunman could not be
deterred. He noted the gunman in the incident was a repeat
offender and said criminals lack the ability to see how the
principles of right and wrong apply to him. MR. LEMAIRE
claimed the law must be consistently practiced and applied to
be a deterrent, something which has never been done.
Number 248
MR. LEMAIRE summarizes by saying he has seen the public
defender and public advocacy people at work and said he was
offended by their operation. He claimed they had money to
burn and that their budgets should be cut. He said the
biggest problem with the use of the death penalty was the
legal hassles that are generated, and attorneys who over
utilize the appeals process should be penalized.
Number 305
SENATOR TAYLOR requested information on people wishing to
testify and asked for show of hands for those unable to
testify in Juneau. He stated he was willing to stay as long
as it takes for everyone who wishes to testify to do so.
DONNA DINSMORE POFF said she was testifying on behalf of her
son who was murdered. She contacted thirty-four legislators
regarding her son and was disappointed that she only received
responses from two legislators, REPRESENTATIVES GRUSSENDORF
and SANDERS. She said it takes too long for justice to be
served.
Number 387
SENATOR TAYLOR assured MS. POFF that all her comments from
both days of testimony will be in the record.
MS. POFF summarized by saying she never wants anyone to forget
her son and urged the committee to expedite the passing of
these bills.
Number 428
JONATHAN KATCHER testified the cost of the death penalty is
not intended to be a reflection of what the lives of the
victims are worth, but will take away funds and resources from
prosecuting crime. He thinks that implementing the death
penalty would prolong the pain of crime victims and their
families because of the greater degree of scrutiny with which
the courts would examine these cases.
Number 468
MR. KATCHER said he found it ironic that the same legislature
that is contemplating giving juries the power to dispense a
sentence of capital punishment is also contemplating taking
away the power of juries to award compensation in cases in
civil court.
MR. KATCHER described a person and a crime that would fall
under the guidelines of this legislation. He stated that
person is now heavily involved as an advocate in the Native
sobriety movement and is now doing positive things for this
community and this legislature, because it's saving money by
getting to the heart of the Native sobriety issue. He urged
the legislature to resist the emotional element in the passage
of the death penalty.
Number 535
SENATOR TAYLOR called the next witness, MICHELLE KERR, who
said she couldn't believe that the death penalty wouldn't
deter someone from committing a crime. She said she couldn't
think of a better argument for the death penalty than when
someone from prison conspires and succeeds in killing someone
else. She also agreed with the concept of "an eye for an
eye."
SENATOR TAYLOR thanks the previous witness and called the next
witness, JOHN FARLEIGH who stated he was at one time on a jury
for a murder trial. He said that murder is a horrible thing
and deserves to be punished as harshly as possible, but that
real life cases are not as "cut-and-dried" as they are on
Perry Mason.
Tape 93-62, SIDE B
Number 001
MR. FARLEIGH summarized by saying it would be hard for a jury
to decide whether or not to use the death penalty for fear
that an innocent person would accidentally be sentenced to
death. He thinks it would have been much harder for the jury
on which he served to come to a decision had the death penalty
been an available sentencing option. He concluded saying the
death penalty is a permanent decision and the potential for
executing someone wrongly exists. He commented that if
someone who is sentenced to serve jail time is later found to
be innocent, then at least that person can be let out of jail.
Number 059
SENATOR TAYLOR thanked MR. FARLEIGH again for his testimony
from the point of view of the juror and thanked him for giving
his time and energy to the American jury system.
the next witness was RANDALL BURNS, representing the Alaska
Civil Liberties Union, who stated the ACLU is opposed to the
death penalty and believes that capital punishment is
inconsistent with our fundamental values. He said the ACLU
is not soft on crime, but believes that any state that would
authorize the killing of another is committing an immoral act.
He says it is an issue of respect for human life.
MR. BURNS said it teaches the permissibility of using violence
to solve social problems, that capital punishment is really
murder by the government.
Number 105
MR. BURNS continued by saying the facts simply do not support
the idea that the death penalty would be a deterrent to
possible violent criminals. Most people think they will be
able to avoid detection in committing a crime, and the death
penalty simply is not going to stop that mind set.
MR. BURNS raised the issue of fairness, because death row
inmates are disproportionately composed of African-Americans.
He thought that in Alaska, Alaska Natives would possibly make
up a large number of the inmates on death row.
MR. BURNS commented that in the trial courts of this nation
at this time the killing of a white person is treated much
more severely than the killing of a black person. Of the 168
persons executed between January 1977 and April 1992, only
twenty-nine have been convicted of killing a non-white person,
and only one of these twenty-nine persons was white himself.
MR. BURNS stated that as utilized in our justice system, the
death penalty is reserved for murderers, regardless of their
race, who kill a white person. When discretion is used in
sentencing a person, it has always been used in this country
to mark for death the poor, the friendless, the uneducated,
and members of racial minorities, thus discretion becomes
injustice. Also, he said you cannot correct a mistaken
conviction once the state has taken that person's life.
MR. BURNS offered a list of examples of persons who have been
on death row who were later found to have been innocent of the
crimes for which they were sentenced and were later released
from prison.
Number 165
SENATOR TAYLOR requests that MR. BURNS submit a copy of the
list to the committee.
MR. BURNS suggested the legislators make alterations to
existing laws in order to clarify for the public that life
imprisonment without the possibility of parole exists in this
state and can be used by prosecutors.
MR. BURNS said he understands no person convicted in Alaska
of first degree murder is eligible for parole for at least
thirty-three years. He urged the legislature to adopt
specific language offering life without parole in Alaska and
ending the idea that we should be bringing the death penalty
to the state.
Number 198
MR. BURNS said in regards to the death penalty assuaging the
grief suffered by the family of the victim, that most families
of victims say that no penalty can substitute for the loss of
a loved one. He quoted from a report entitled "Sentencing for
Life" which was submitted to the committee.
MR. BURNS offered another report, "Millions Misspent: What
Politicians Don't Say About the High Cost of the Death
Penalty," which he submitted to the committee along with a
brochure on a poll which found that only 41% of the population
would support the death penalty if there were provisions in
law for first degree murderers to be sentenced to life in
prison with no possibility of parole.
Number 238
SENATOR TAYLOR calls the next witness, HUGH FLEISCHER, an
Anchorage attorney, who said there were no guarantees
whatsoever in this legislation that the only people sentenced
to death would be those who are without a doubt guilty of a
heinous crime. He recalled the second person to be executed
in the U.S. after the death penalty was reinstated in 1979 was
JOHN SPEKALINK, whose case was mismanaged by the defense,
since there were strong indications that he had acted in self-
defense when he committed the murder for which he was accused.
In addition, there were comments from one of the defense
attorneys stating that he did not feel qualified enough to
defend MR. SPEKALINK.
Number 289
MR. FLEISCHER said there are flaws in the system, and it is
important that the state do everything possible to help
victims of crime, but it should also insure that our state
does not make an innocent person a victim of this process.
Number 337
SENATOR TAYLOR thanked MR. FLEISCHER for testifying and called
the next witness, TERRY BURRELL, who described to the
committee her neighborhood community council meeting where
everyone agreed that it should be a priority to stop the
increasing rate of crime and to protect the neighborhoods.
She supported SB 162 or a combination of the Senate and House
bills relating to the subject, whichever could be implemented.
She also would like to see a limit on the number of appeals
available to defendants.
MS. BURRELL asked the legislature to please pass a capital
punishment law, effective January 1, 1995. She believes that
lethal injection or hanging would be a deterrent and agrees
with Ed McNally's testimony. She has not been a victim of
crime, but thinks the death penalty is needed. MS. BURRELL
urged the committee to ignore the testimony of the ACLU.
Number 376
SENATOR TAYLOR thanked MS. BURRELL for testifying and call on
JOHN HAVELOCK, who apologized to the committee for not being
able to hear previous testimony in order to avoid repeating
anything already said. He thought that if capital punishment
was an option in sentencing, there would be more defendants
pleading guilty on lesser charges in order to avoid the risk
of being punished with the death penalty. He questioned
whether this would be a desirable thing to do and thought that
it would be adding to the power of prosecutors. MR. HAVELOCK
doesn't like the trend of the past thirty years of taking more
discretion away from judges and giving it to prosecutors.
Number 422
MR. HAVELOCK continued by saying he thought this bill is a
part of that trend, and in addition, the death penalty is not
a good idea under the particular circumstances of the
administration of justice. He is not opposed to the death
penalty for moral reasons, but thinks that in Alaska it would
be a particularly "lousy idea."
MR. HAVELOCK also considered that under the Constitution of
the State of Alaska this bill would be unconstitutional. His
advice, if the death penalty is really needed, would be to
amend the Constitution of the State of Alaska. He believes
that the death penalty would cause problems in the multi-
racial population of the state, since figures show that
minorities would probably be unduly affected by such a law.
Number 470
MR. HAVELOCK also declared it would add to the increased
divisions between ethnic groups. He commented on the fact
that during the time he has been attending the committee
meeting he has seen no blacks, and perhaps one Native. He
once again asserts that the effect of the death penalty would
be to increase interracial hostility. MR. HAVELOCK continued
his analysis of the constitutionality of capital punishment
in the state.
Number 537
MR. HAVELOCK totally agreed with the need to do more for
victim's rights, and he agreed with the option of sentencing
first degree murderers to life imprisonment without chance of
parole.
SENATOR DONLEY asked about the constitutionality of having the
death penalty available for any charge of aggravated first
degree murder, and if MR. HAVELOCK doesn't think it is rather
a large leap from a sentence of twenty years to one of death.
Number 568
MR. HAVELOCK responded he wasn't particularly bothered by the
difference between the possibility of a twenty year sentence
and one of death. It does remind him of how much he is
bothered to see the cost of the justice system going up and
up and up. His theory was that every time one part of the
criminal justice system gets a little more money, you have to
give money to the other parts of the criminal justice system,
but he thinks each part should get a little less money. It
seemed to MR. HAVELOCK that the essence of fairness for
defendants is in the balance of funds within the Court System,
not the total sum of the defender's budget.
Number 599
SENATOR HALFORD reminded people the legislature does not set
the budget for the Public Defender Agency, but that the Court
System sets their budget; the legislature only supplements the
Public Defender Agency's budget.
SENATOR TAYLOR asked MR. HAVELOCK to look over the legal
opinion by JACK CHENOWETH regarding the bill.
An UNIDENTIFIED SPEAKER noted that there was also a question
of constitutionality regarding Section 12 and asked MR.
HAVELOCK to review HJR 43 in relation to amending Section 12.
SENATOR TAYLOR thanked MR. HAVELOCK once again for his
testimony and called the next witness, MARIE JOSEPH, who
stated she was not a victim, but she felt that many victims
are not seeing justice done. She thought it was time to pass
a capital punishment law, and the legislature could pass laws
that would make capital punishment more cost effective. (It
appears that TAPE 4 ended before MS. JOSEPH was finished
testifying.)
TAPE 93-63, SIDE A
Number 001
(It is obvious that TAPE 5 was not started until part way
through this witness' testimony.)
ALAN BARNES from the University of Alaska, Anchorage said the
Justice Center would offer to answer those questions
objectively. He said he was familiar with the SPEKALINK
situation and also with the NELSON/POGENY case.
SENATOR TAYLOR called the next witness, DIANE SCHENKER, from
the Department of Corrections, who had several points she
wanted the committee members to consider. The first one would
be to add the term "probation officer" to the list of other
terms used to describe peace officers, or simply use the term
"peace officer" consistently to describe all these positions.
She said another option would be to use the term "correctional
employees."
Secondly, MS. SCHENKER asked the committee to consider not
using hanging as an option in carrying out a sentence of
capital punishment. She said it is difficult and more
expensive than other types of execution.
Number 053
MS. SCHENKER also informed the committee that the fiscal note
had been dramatically revised from the previous year, because
the department made the erroneous assumption that had these
people not been sentenced to death, they simply would not have
existed in the system. In fact, had they not been sentenced
to death they most certainly would still have had a fiscal
impact on the system. The fiscal note has been revised to
show that impact. MS. SCHENKER claimed there is no space in
the correctional system for the next person sentenced to
ninety-nine years in prison, and in fact the prison system is
130 persons over capacity.
MS. SCHENKER said, with or without this bill, more space for
prisoners will need to be either contracted or built. She
stated that there would be no difference in the housing of
inmates on death row and the housing of other comparably
classified inmates - other than the last twenty-four hours
before the execution.
SENATOR DONLEY asked MS. SCHENKER to clarify where she got her
information on how death row prisoners are housed.
Number 092
MS. SCHENKER told SENATOR DONLEY that she had talked to
officials in the State of Washington and to persons who have
worked on death row in both Washington and California.
SENATOR DONLEY answered that he was more concerned with the
safety of other prisoners and correctional officers if
criminals, sentenced to capital punishment, were housed with
the general prison population. He asked MS. SCHENKER if it
wouldn't be preferable to house persons on death row separate
from other prisoners.
MS. SCHENKER noted that all prisoners, regardless of the
reason for incarceration, are segregated at the beginning of
their stay. She said the incentive for prisoners to behave
is in their having access to television, telephones, etc.
MS. SCHENKER was asked if the agencies coordinated their work
on fiscal notes, and she responded that a meeting had been
scheduled for all agencies to get together following the
committee meeting. She said she had talked briefly with the
Office of Management and Budget regarding her fiscal note, and
though it was agreed her fiscal note did not clash with anyone
else's, that was as far as the discussion went. She commented
that a lot of assumptions must be made in order to prepare a
fiscal note for this legislation, and it therefore may be
rather arbitrary.
Number 145
SENATOR TAYLOR thanked MS. SCHENKER and called the next
witness, CATHY KAINER, who testified she has personal
knowledge of the financial cost of the death penalty, having
worked in Texas while the death penalty was used. She
believed capital punishment cases tie up the justice system,
causing delays at all levels. She said the effect the death
penalty had on the judicial system was the best argument for
abolishing the death penalty.
MS. KAINER thought resources could be better used in the
prevention crime, rather than spending millions of dollars
trying to put a few people to death. She stated that by
instituting capital punishment, we are moving backwards from
the rest of the world. Most countries in the world are moving
towards abolishing the death penalty. MS. KAINER listed a
number of countries and the dates on which they abolished the
death penalty in those countries. She said we needed to ask
ourselves how other criminal justice systems work, since other
countries don't seem to be suffering from the same high rate
of crime as the United States.
Number 199
SENATOR TAYLOR thanked MS. KAINER for her patience and called
the next witness, JACK KEANE, who stated he has always been
opposed to the death penalty, particularly in Alaska, which
he has always considered to be ahead of the other states in
modern, clear, scientific thinking. MR. KEANE quoted from the
constitution, "Life, liberty, and the pursuit of happiness,
we hold those rights to be inalienable." He said somehow or
other we've ended up with a supreme court that says, "Well,
in these special cases we can sort of skip that provision."
MR. KEANE said he believes that capital punishment is
unconstitutional, and hopes the State of Alaska won't join
Texas and South Africa in instituting a death penalty. He
questioned whether it would be practical, considering we may
only have one execution every one to two years, and whether
it would really make a difference in terms of protecting the
citizens of the state from violent criminals.
Number 276
MR. KEANE did not think the justice system in Alaska works
well enough to entrust it with the death penalty. He claimed
he has seen things go wrong in the system, and it shouldn't
have the power to impose the death penalty.
SENATOR TAYLOR thanked MR. KEANE for his patience in waiting
to testify and called the next witness, LISA RIEGER from the
UAA Justice Center, who announced to the committee she was
speaking from the point of view of an attorney who has tried
a death penalty case. She said the process of trial and
sentencing in death penalty cases is extremely costly, and she
was not sure that anything would be gained by having the death
penalty.
Number 334
SENATOR TAYLOR thanked MS. RIEGER and called the next witness,
FRANK CAHILL, who told the committee that he opposed the death
penalty. He said he thinks there is a significant chance of
convicting the wrong person, and he feels it is uncivilized.
MR. CAHILL suggested we don't cut of people's hands to stop
them from snatching purses, etc. He advocated, as MR. BURNS
does, life sentences without possibility of parole. MR.
CAHILL'S final reason for opposing the death penalty was
because he thinks there is a chance that capital punishment
would be applied unfairly, and he doesn't want to be part of
a system that treats anybody unfairly.
Number 383
SENATOR TAYLOR called the next witness.
ARTHUR E. CURTIS testified it would be a shame to pass a law
instituting capital punishment. He stated that the statistics
show very clearly that capital punishment is not a deterrent.
He said that all the faults of the judicial system are
magnified when you get to the level of capital punishment, and
that capital punishment cases put too much sustained pressure
on everyone involved in the case: the jury, the prosecutors,
and the justices.
MR. CURTIS told the committee that it would also be a huge
expense to the system. He thinks that passing a capital
punishment law would only constitute a symbolic resolution of
the problem of violent crime, and would not address the real
causes and solutions.
Number 435
MR. CURTIS offered a suggestion to the committee as part of
the solution to the problem of violent crime, which would be
to spend more money on drug rehabilitation centers. He
thought it was pathetic that our society is looking for a
violent solution to violence.
SENATOR TAYLOR called the next witness, DAVID DOLESE, who read
a written statement to the committee regarding an experience
he had shortly before the end of World War II in which the
army division of which he was a part surrounded and liberated
a German concentration camp in Austria. He said that the
terrible things he saw in the concentration camp convinced him
that when governments decide to execute their own people,
mankind's dark and evil side emerges in a fearful manner.
DR. DOLESE continued reading his statement, describing how he
thought a justice system should function. He said that
execution does not have to be used to reach the goal of
protecting law-abiding citizens from violent criminals. He
suggested that capital punishment smacks of vengeance and
should not be part of an ideal government's actions - that
government should be above such emotional responses.
Number 511
DR. DOLESE compared legalized execution as being on the same
path as the torture and extra-judicial executions that occur
in other countries. He urged the committee to not debase
themselves by embracing this easy way out.
SENATOR TAYLOR asks DR. DOLESE if he was also opposed to the
war crimes trials that occurred after WWII and the results of
those trials.
DR. DOLESE replies that he was not opposed to the trials being
held or to the executions at the time they occurred.
SENATOR TAYLOR thanked DR. DOLESE for his testimony and called
the next witness, RON DAILEY, who stated he was speaking in
opposition to the death penalty legislation. He agreed with
most of the reasons given by previous witnesses, but would
confine his testimony to the moral question of whether we
should use our courts to carry out executions? MR. DAILEY
also thought it is a most uncivilized act. He claimed he was
not soft on crime, but believed that if someone commits a
murder, that person should be put in prison for the rest of
their life without the possibility of parole. He said since
that view is more stringent than the current laws, he cannot
be considered soft on crime.
Number 559
SENATOR TAYLOR thanked MR. DAILEY for his testimony and for
being patient in waiting to testify. He then called the next
witness, CHARLES E.MCKEE, who said he has studied what the
Bible says regarding capital punishment, and he quoted several
passages from the Bible. He noted the legislation before the
committee related to the judicial and financial aspects of
capital punishment. He also explained that both Christianity
and commerce are a part of common law.
SENATOR TAYLOR acknowledged that MR. MCKEE was discussing
interesting debates, but asked MR. MCKEE to stay on the topic.
Number 633
MR. MCKEE asked SENATOR TAYLOR to allow him to make his point
and accused the people around him of diverting his attention
from the subject matter. He then mentioned a report which he
was willing to hand out to the committee of what OPEC has done
to our society.
SENATOR TAYLOR advised MR. MCKEE this hearing was not about
OPEC.
CHARLES MCKEE says he has an interest in resolving heinous
crimes in our society because there has been an attempted
murder on his life. He mentions that a U.S. marshall tried
to instigate an attack him on October 18th after he found an
indictment on JUDGE HOLMES. MR. MCKEE described numerous
attacks on his person.
Number 685
SENATOR TAYLOR acknowledged that MR. MCKEE probably has some
great points on other subjects and that he would enjoy
listening to them sometime, but if MR. MCKEE wouldn't stick
to the legislation before the committee, he would leave.
MR. MCKEE continued his previous testimony, saying he opposed
the legislation regarding capital punishment primarily because
it recognized the monetary system in operation in the U.S.
Number 723
SENATOR TAYLOR thanks MR. MCKEE for his testimony and asks if
there was anyone one on the teleconference network who would
like to testify.
TAPE 93-63, SIDE B
Number 001
Next to testify was CONSTANCE GRIFFITY, who agreed with much
of the testimony expressed by others opposed to the death
penalty. She has been a member of the ACLU for fifty years,
has studied the issue of the death penalty, and believes it
has been used disproportionately to punish minorities. She
was concerned that this would also happen if the death penalty
was implemented in Alaska. She agreed the money would be
better spent controlling the causes of violence. She believed
the death penalty itself is by definition premeditated murder.
She expressed a hope that the committee would consider all
that has been said today regarding whether the death penalty
really does serve our needs. She said HJR 43 makes sense to
her; she does not believe victims should have to wait years
and years and years for restitution.
Number 047
SENATOR TAYLOR thanked MS. GRIFFITY for her testimony and
asked if there was anyone else on-line who would like to
testify.
LIZ DODD testified she was opposed to the death penalty for
a number of reasons. She thought by implementing a death
penalty, Alaska would be repeating the mistakes of other
states. She said capital punishment would be a drain on
public resources with no measurable deterrent effect. She
claimed not all families of victims of violent crimes were in
favor of capital punishment, and Alaska's justice policies
should be driven by prevention of crime, not by retribution.
MS. DODD cited a passage from the Alaska Constitution
supporting her belief that capital punishment was
unconstitutional. She said lives built on child abuse and
neglect, alcohol and drug abuse, domestic and culturalized
violence are lives which all too often end in tragedy. She
said the state needs to address violence where it begins in
people's lives, rather than adding on one more violent ending.
Number 080
LIZ DODD observed that support for the death penalty assumes
that the justice system in Alaska is working without
discrimination, and the state is somehow above error. The
death penalty is uncorrectable in situations in which an error
occurs. MS. DODD noted the titles of two books in which the
committee might be interested: In Spite of Innocence and Dead
Man Watching.
SENATOR TAYLOR thanked MS. DODD for testifying and called the
next witness, RON REED, who expressed his concern that
implementing the death penalty in Alaska would do nothing but
polarize the state, increase the cost of our criminal justice
system, and sooner or later culminate in the judicial murder
of someone wrongly convicted of a crime. He said past
experience with the death penalty in other states found an
increase in violent crime during the time in which capital
punishment was used.
MR. REED said violence begats more violence, innocent people
would undoubtedly be executed, and the composition of inmates
on death row would probably be made up of a disproportionate
number of Alaska's Native people and other people of color.
Finally, the state would incur the high cost associated with
the implementation and maintenance of a death penalty.
Number 148
SENATOR TAYLOR thanked MR. REED for his testimony and
requested anyone who read from written statements to please
give a copy to the committee for their files. SENATOR TAYLOR
called the next witness.
BILL GLUDE said he was speaking in opposition to the death
penalty and was horrified the possibility of implementing a
death penalty in Alaska was being considered. He appraised
the death penalty as being premeditated and the deliberate
killing of Alaskan citizens by our state government. He does
not believe the problem of violent crime can possibly be
solved by committing more murder in the name of the state.
MR. GLUDE stated that people who commit violent crime are not
thinking clearly about the consequences, don't care about the
consequences, or are intoxicated, and therefore would not be
deterred by the possibility of being sentenced to death. He
concludes by asking the committee members to consider how each
of them would feel if anyone were to be wrongly executed as
a result of their actions on this legislation. He commented
there are no easy solutions.
Number 188
SENATOR TAYLOR thanked MR. GLUDE for his testimony and asked
if there were any more people in Juneau who wished to testify.
AMY PAIGE stated for the committee that she was opposed to
capital punishment on moral and religious grounds and believes
it is no different from the crimes it seeks to punish. She
said it was morally wrong for the state to enact laws based
on revenge for wrongs committed.
MS. PAIGE said since the laws of our country state we must
regard all people as equal to one another, there was no
justification for the distinctions set forth in the
legislation before the committee that would recommend the
death penalty based on who the victim of the crime was. She
said this aspect of the legislation was unconstitutional.
Number 210
SENATOR TAYLOR thanked MS. PAIGE for her testimony and called
for witnesses from Soldotna.
DAVID RICHARDS informed the committee that he is definitely
in favor of the death penalty. He based his conviction on
moral and religious grounds because he feels that death is
proper justice for a person who willingly murders another
person.
MR. RICHARDS did not think that deterrent should be an issue,
but that capital punishment was a matter of proper justice.
He was in favor of putting an advisory vote relating to the
implementation of capital punishment on the ballot so that the
people of the State of Alaska can vote on the issue.
SENATOR TAYLOR thanked MR. RICHARDS for his testimony and
noted for the record that written testimony was received from
JOHN SHAFFER, KEVIN MCGEE, MARY GEDDES, and MATTHEW NICOLAI.
SENATOR TAYLOR also noted for the record that three members
of the House and one member of the Senate stayed for this
meeting until 6:07 p. m.
As there was no one else waiting to testify, SENATOR TAYLOR
thanked all the participants for their testimony, their
patience, and adjourned the meeting.
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