Legislature(2001 - 2002)

03/25/2002 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               SB 344-TERRORISM AGGRAVATING FACTOR                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR  stated  that  he   introduced  this  legislation                                                              
because of  an article that appeared  some years ago in  the Earth                                                            
First journal. He said his concern  stems from the fact that he is                                                            
seeing more articles in the newspaper  about people acting out and                                                              
committing arson to protect animals  or protect the earth. He said                                                              
that those acts would be considered  terrorism in any other forum.                                                              
SB 344  increases the aggravating  factors at sentencing  should a                                                              
person  be  found to  have  committed  a  criminal act  for  these                                                              
purposes. He then took public testimony.                                                                                        
                                                                                                                                
MS. JENNIFER RUDINGER,  Alaska Civil Liberties Union  (ACLU), said                                                              
the ACLU is a non-profit organization  dedicated to preserving and                                                              
defending the principles of liberty  and free speech guaranteed in                                                              
the Bill  of Rights  and the Alaska  Constitution. The  ACLU urges                                                              
committee  members  not to  pass  SB  344 from  committee  because                                                              
rather than punishing criminal acts,  this bill punishes political                                                              
ideas and  motivations, which  are at the  core of what  the First                                                              
Amendment  was  adopted  to  protect,  that  being  the  right  of                                                              
citizens to  petition their government  for redress  of grievances                                                              
and the  right of  dissenting voices  to be  heard. She  clarified                                                              
that the ACLU  does not oppose the criminal prosecution  of people                                                              
who commit  acts of  civil disobedience  if those  acts result  in                                                              
property damage or  place people in danger. That  type of behavior                                                              
is  already  illegal. However,  such  crimes  are often  not  what                                                              
Alaskans think  of as terrorism and  it would be  very unfortunate                                                              
if  the legislative  response  to terrorism  is  to start  turning                                                              
ordinary Alaskans  into terrorists  just because their  motivation                                                              
is to effect political change.                                                                                                  
                                                                                                                                
MS.  RUDINGER stated  that under  the sweeping  definitions in  SB
344,  the desire  to  effect  change could  in  and  of itself  be                                                              
sufficient  to  aggravate  the sentences  or  people  whose  civil                                                              
disobedience  does  not  come  anywhere  near the  level  of  what                                                              
Alaskans think of  as terrorism. She said recent  examples are the                                                              
World Trade Organization  protestors who engaged in  minor acts of                                                              
vandalism  or   anti-abortion  protestors  who  engage   in  civil                                                              
disobedience by blocking entry to clinics.                                                                                      
                                                                                                                                
TAPE 02-11, SIDE B                                                                                                              
                                                                                                                                
MS. RUDINGER  said another  example is the  people in  Puerto Rico                                                              
who committed civil disobedience  to stop the use of the island of                                                              
Puerto  Rico for  weapons testing  and bombing.  She repeated  the                                                              
criminal acts  of vandalism and  assault in those  examples should                                                              
be  punished  and  existing  law allows  for  punishment  of  acts                                                              
involving force  or violence  against persons  or property,  as SB
344  recognizes. However,  the motivations  of  the protestors  to                                                              
influence world  economic policy,  to dissuade women  from seeking                                                              
abortions  or to  change U.S.  policy  with regard  to bombing  in                                                              
Puerto Rico are the bedrock of democracy.  She concluded by saying                                                              
she supports  Chairman  Taylor's effort  to punish criminal  acts,                                                              
but  in  legislators'  efforts  to   protect  Alaskans  from  real                                                              
criminal threats, it is important  that they not criminalize ideas                                                              
and  beliefs  protected  by  the   First  Amendment  by  punishing                                                              
Alaskans' political motivations.                                                                                                
                                                                                                                                
SENATOR  DONLEY  asked  Ms.  Rudinger  if the  ACLU  has  taken  a                                                              
position on hate crimes legislation.                                                                                            
                                                                                                                                
MS.  RUDINGER replied  that about  eight  or nine  years ago,  the                                                              
national ACLU submitted  a brief to the U.S. Supreme  Court urging                                                              
it to uphold a Wisconsin hate crimes  enhancement statute as being                                                              
constitutional, however  the ACLU also asked the  Supreme Court to                                                              
set  forth  a clear  set  of  rules  governing  the use  of  these                                                              
statutes. The ACLU warned the court  that if the state is not able                                                              
to  prove that  a defendant's  speech  is directly  linked to  the                                                              
criminal behavior,  chances would  increase that the  state's hate                                                              
crime  prosecution  would  be  politically   motivated.  She  told                                                              
Senator  Donley  that she  appreciated  the question  because  the                                                              
issue  is very  complicated. She  said  the ACLU  is against  hate                                                              
speech  codes   in  which  only  politically  correct   speech  is                                                              
tolerated, but it does support a  narrowly crafted hate crime bill                                                              
if it  has restrictions  on the kind  of evidence introduced.  She                                                              
asserted  that the  intent and  the effect  of hate  crimes is  to                                                              
oppress and silence  a group of vulnerable people  using fear. She                                                              
emphasized   the  importance   of  ensuring   that  the   evidence                                                              
introduced is limited to the hate crime charges.                                                                                
                                                                                                                                
SENATOR  DONLEY asked  if the  ACLU  does not  oppose hate  crimes                                                              
legislation  if there  is  linkage between  the  actual speech  or                                                              
thought.                                                                                                                        
                                                                                                                                
MS. RUDINGER said  she thought Senator Donley was  right but it is                                                              
a tough line  to draw. ACLU opposed Senator Ted  Kennedy's bill in                                                              
Congress  unless it  was amended  to narrow the  kind of  evidence                                                              
that could  be introduced. The ACLU  was leery of the  broad scope                                                              
of the bill  and how much  of a person's beliefs  and associations                                                              
could be  used against them in  a trial about a  particular crime.                                                              
However,  sometimes speech  is related to  a crime,  such as  in a                                                              
lynching,  so  it is  a  very difficult  line  to draw.  The  ACLU                                                              
supports hate crime legislation overall  because of the oppressive                                                              
effect hate crimes have on vulnerable groups of people.                                                                         
                                                                                                                                
SENATOR DONLEY asked if the ACLU  has extended its area of concern                                                              
into disparate  treatment based on  race or other  non-permissible                                                              
factors.                                                                                                                        
                                                                                                                                
MS. RUDINGER asked Senator Donley to be more specific.                                                                          
                                                                                                                                
SENATOR  DONLEY  asked  Ms.  Rudinger  if the  ACLU  has  taken  a                                                              
position on the Governor's proposed subsistence amendment.                                                                      
                                                                                                                                
MS. RUDINGER  said the  ACLU supports  a constitutional  amendment                                                              
but it hasn't  yet testified on the  issue. The ACLU does  not see                                                              
the subsistence issue  as a race-based issue but  one of necessity                                                              
that is connected  to freedom of religion and  spiritual heritage.                                                              
She  said   the  short   answer  is  the   ACLU  does   support  a                                                              
constitutional   amendment   or  some   kind   of  protection   of                                                              
subsistence use based on the fact  that subsistence is so integral                                                              
to Native culture  - it goes beyond simply food and  gets into the                                                              
spiritual heritage of the culture.                                                                                              
                                                                                                                                
SENATOR  DONLEY   asked  why  the  ACLU  feels   a  constitutional                                                              
amendment  is   necessary  when  the  state   already  prioritizes                                                              
subsistence uses as the highest priority  use. The only purpose of                                                              
a constitutional amendment would  be to provide for discrimination                                                              
of urban  subsistence users  to the  benefit of rural  subsistence                                                              
users, not necessarily based on any  merit or cultural background.                                                              
                                                                                                                                
MS.  RUDINGER responded  by  saying the  ACLU  wouldn't limit  its                                                              
support to just a constitutional  amendment but it would support a                                                              
subsistence  preference in  times  of shortage,  the reason  being                                                              
that subsistence  is so much a  part of the culture  and heritage.                                                              
Subsistence is not  simply a matter of gathering  food. The Alaska                                                              
Constitution gives  everyone the right  to eat. The  ACLU supports                                                              
subsistence  because it  believes it  is a  very important  matter                                                              
that  needs to be  resolved  and it will  only come  into play  in                                                              
times of shortage. She repeated that  during times of shortage, it                                                              
is  very important  to protect  the spiritual  heritage of  Alaska                                                              
Natives. She offered  to meet with Senator Donley  at another time                                                              
to elaborate further.                                                                                                           
                                                                                                                                
SENATOR  DONLEY  said  he appreciates  Ms.  Rudinger's  offer  and                                                              
explanation but he doesn't believe  her explanation is consistent.                                                              
                                                                                                                                
MS. RUDINGER remarked  that it is hard to sum up  a position on an                                                              
issue like subsistence in a short time period.                                                                                  
                                                                                                                                
SENATOR DONLEY noted the Anchorage  Assembly thinks it's competent                                                              
enough to do so.                                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR said  he was fascinated by Ms.  Rudinger's comment                                                              
that the  ACLU supports  hate crime legislation  if it  contains a                                                              
sufficient limitation upon the evidence  of motive or the evidence                                                              
of hate.                                                                                                                        
                                                                                                                                
MS. RUDINGER agreed  that is what she said and stated  the ACLU is                                                              
opposed to  hate speech  codes. The ACLU  does not believe  speech                                                              
can be restricted  and, in fact, the ACLU has  defended the rights                                                              
of  numerous  groups  whose  speech  she  can't  stand.  The  ACLU                                                              
defended the rights  of the Nazi party to peaceably  march through                                                              
a primarily  Jewish town  in Illinois. However,  when it  comes to                                                              
hate crimes,  the motivation in  itself does harm.  The motivation                                                              
behind a hate crime  is not just aimed at the  victim of the crime                                                              
but  it is  aimed  at an  entire  group of  people  and sends  the                                                              
message that  this will happen to  you if you assert  your rights.                                                              
The ACLU  is very  cautious however,  and has  opposed hate  crime                                                              
bills that include speech.                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR  said SB  344 refers  to the defendant's  criminal                                                              
conduct so it does not apply to anything  that is defensible under                                                              
the First Amendment because that  wouldn't be criminal conduct. He                                                              
read from  SB 344, "...the  defendant's criminal  conduct involved                                                              
the use of force  or violence against persons or  property and was                                                              
designed to  (A) intimidate or  coerce a civilian  population." He                                                              
asked, "Isn't that what a lynching is all about?"                                                                               
                                                                                                                                
MS. RUDINGER said SB 344 does not  affect criminal conduct because                                                              
the conduct  has already  been punished. SB  344 does say  that at                                                              
sentencing for that  conduct, there's an aggravating  factor as to                                                              
what the  motivation was in the  mind of the person  who committed                                                              
the act.                                                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR asked,  "Isn't that what we do  in all sentencing?                                                              
Don't  we look  to the  motive and  the  mens rea  - the  criminal                                                              
intent of the individual?"                                                                                                      
                                                                                                                                
MS. RUDINGER replied:                                                                                                           
                                                                                                                                
     Mr.  Chairman,  intent  and motive  are  different.  The                                                                   
     intent  is to commit  the act  or to  see that the  harm                                                                   
     itself is done but the motives  listed here are not just                                                                   
     to commit the act, but to send  a message. This looks at                                                                   
     is the  motive behind the  act being committed,  is that                                                                   
     motive  to send  a message.  The sending  of a  message,                                                                   
     however unpopular  the message  may be, is exactly  what                                                                   
     the  First Amendment  was designed  to  protect. We  can                                                                   
     punish the  means, and we already  do in the  first part                                                                   
     of  statute  12.55.155  and  .125 but  the  motive,  the                                                                   
     thought, we  cannot and should not punish,  especially -                                                                   
     we  have  some  concerns about  how  vaguely  these  are                                                                   
     worded...  as I  look at  all of  the verbs  in here,  I                                                                   
     think they  all boil down  to wanting to make  political                                                                   
     change.                                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked  how the verbs are any different  than those                                                              
found within the  definitions of the various hate  crime laws that                                                              
Ms. Rudinger  mentioned. He questioned  how the lynching  she used                                                              
as an example was  not designed by the Ku Klux  Klan to intimidate                                                              
or coerce a civilian population?                                                                                                
                                                                                                                                
MS. RUDINGER said  clearly lynchings and hate  crimes are designed                                                              
to intimidate  but the difference  between hate crimes and  SB 344                                                              
is who  the intimidation  is aimed  at. She  noted the  motivation                                                              
behind a hate  crime is designed to intimidate  and oppress groups                                                              
of people who have been oppressed in the past.                                                                                  
                                                                                                                                
CHAIRMAN TAYLOR  asked why  hate crimes only  apply to  groups who                                                              
have been intimidated in the past.                                                                                              
                                                                                                                                
MS. RUDINGER  said the hate  crimes bills  that she has  seen have                                                              
tried  to protect  people from  being oppressed  by violence.  The                                                              
bills  are aimed  at correcting  past  discrimination. She  stated                                                              
there is  a big difference  between oppressing  a group  of people                                                              
who are  vulnerable and intimidating  the government. Any  kind of                                                              
protest is designed  to influence the policy of  a government, and                                                              
one could argue  by intimidation if  a lot of voters are  going to                                                              
be upset by it.                                                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR commented, "Not by criminal conduct, I hope."                                                                   
                                                                                                                                
MS. RUDINGER said  the conduct should be punished  under the first                                                              
part of the statute.                                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR asked if that punishment  should not be aggravated                                                              
by what  the conduct  was designed  to do. He  stated, "If  it was                                                              
intentionally designed by the people  who did the criminal conduct                                                              
to intimidate and coerce all of the  people living down river from                                                              
the dam when  they blew the dam  up, and they blackmailed  on that                                                              
basis,  they said  pay us $2  million  or we'll blow  up the  dam.                                                              
That's pure  and simple,  we don't have  a problem with  that one.                                                              
But,  if instead  they say  you cannot  allow  that nuclear  power                                                              
plant to be  built down river or  we'll blow up your  dam, somehow                                                              
that's free speech  and the other one is not. It's  a criminal act                                                              
that should be punished. Why should the aggravator not apply?"                                                                  
                                                                                                                                
MS.  RUDINGER  said   both  acts  are  criminal   acts.  The  acts                                                              
themselves  say  harm  will  come if  something  isn't  done.  She                                                              
continued, "The acts themselves are  criminal conduct and this, of                                                              
course,  is  limited   to  using  force  or  violence,   not  just                                                              
threatening to use force or violence."                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR said that is correct.                                                                                           
                                                                                                                                
MS. RUDINGER stated:                                                                                                            
                                                                                                                                
     The only thing  that your bill changes is  the part that                                                                   
     says and was  designed to (A)(B)(C)(D), in  other words,                                                                   
     the motivation  was (A)(B)(C) or (D).  Those motivations                                                                   
     are so vaguely worded, we have  some real concerns about                                                                   
     protected  free  speech  being   swept  into  them  just                                                                   
     because that speech might be  politically unpopular if a                                                                   
     prosecutor  wanted  to  try   to  add  some  aggravating                                                                   
     sentences and send a message.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR said he understood Ms. Rudinger's point.                                                                        
                                                                                                                                
SENATOR THERRIAULT  noted there must be the  underlying commission                                                              
of a crime  so none of SB  344 would be triggered unless  a person                                                              
commits and is convicted of a crime.  He said he believes a lot of                                                              
limits were built into SB 344 by the way it is structured.                                                                      
                                                                                                                                
MS. RUDINGER  gave the  example of the  WTO protest several  years                                                              
ago  at which  protesters got  out  of hand.  The individuals  who                                                              
vandalized the car  would be prosecuted.  If SB 344  was in force,                                                              
it would  apply during the sentencing  stage. Without SB  344, the                                                              
sentence would  be whatever it is  for vandalizing a car.  With SB
344, it would  be possible to  say that because the  motivation of                                                              
the act was to influence the economic  policy, the sentence should                                                              
be  worse. She  said  the motivation  is  protected  by the  First                                                              
Amendment but the act is not so SB  344 would be turning the First                                                              
Amendment on its head.                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT   asked  if   the  question  is   whether  the                                                              
perpetrator wanted to affect policy  change through the commission                                                              
of a crime.                                                                                                                     
                                                                                                                                
MS.  RUDINGER replied,  "No, the  conduct should  be punished  but                                                              
it's not the same thing to say we  want to affect policy as to say                                                              
well, we want  to affect policy by  - you know, things  got out of                                                              
hand so we should not be responsible."  If things get out of hand,                                                              
the protester is  responsible and should be punished  for the act,                                                              
but to say  the motivation is  an aggravating factor says  the act                                                              
itself is even worse because of the motivation.                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR said, regarding the  WTO protest, from the reports                                                              
he has  seen, nothing  got out of  hand, it  was well planned  and                                                              
orchestrated  to  create  mob violence  in  downtown  Seattle.  He                                                              
stated:                                                                                                                         
                                                                                                                                
     Inability to show total conspiracy  on the part of those                                                                   
     individuals -  somehow it's okay  now to yell fire  in a                                                                   
     crowded theatre if you're doing  it for the right reason                                                                   
     but  the judge shouldn't  consider  that the outcome  of                                                                   
     your act, if you were not doing  it for some politically                                                                   
     correct  reason,  that somehow  the  judge  has to  have                                                                   
     blinders on  and go, oh no.  You were Mahatma  Gandhi in                                                                   
     the middle of  the theatre and you just yelled  fire and                                                                   
     it happened to get out of hand  and you didn't do it for                                                                   
     any  other  reason but  if  you  were  part of  the  WTO                                                                   
     protesters  and  you sent  a  person into  every  single                                                                   
     theatre in  town and the yelling  of fire occurs  all at                                                                   
     the  same  time,  that  the judge  is  not  supposed  to                                                                   
     consider that  as an aggravating  factor? That  was what                                                                   
     your criminal conduct was designed to do?                                                                                  
                                                                                                                                
MS. RUDINGER stated  that shouting fire in a crowded  theatre with                                                              
the  obvious intent  of causing  a  panic would  not be  protected                                                              
speech. In  the example of a protest  that gets out of  hand, even                                                              
if  there was  a conspiracy  to cause  a riot,  she felt  Chairman                                                              
Taylor was saying  that some people were caught and  some were not                                                              
so this would be a way to tie in those who weren't caught.                                                                      
                                                                                                                                
CHAIRMAN TAYLOR said he was not suggesting that at all.                                                                         
                                                                                                                                
MS.  RUDINGER said  SB 344  only  comes into  play at  sentencing,                                                              
after a person has been convicted.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR said SB 344 only  comes into play after all of the                                                              
events have occurred. The person  was found guilty and is standing                                                              
before the court to be sentenced.  He said Ms. Rudinger is telling                                                              
him that the Alaska Legislature can't  tell the judge to look into                                                              
the  heart of  the individual  and the  heart of  the action  that                                                              
occurred to determine  what the action was designed  to accomplish                                                              
- whether the  intent of the protester  was to be part  of a group                                                              
to intimidate  and coerce  another  group of people,  just  like a                                                              
lynching was intended to. He asked  Ms. Rudinger how she makes the                                                              
fine line distinction between that  which is a protected designed-                                                              
to-do activity because  it might involve speech and  is a criminal                                                              
act, and  that which is  not protected.  He said apparently  it is                                                              
politically correct  to use hate crime legislation and  to use, as                                                              
an aggravator, somebody who lynches  a black person, yet it is not                                                              
politically correct  to use, as an aggravator,  somebody who tears                                                              
up downtown Seattle, puts people in hospitals and causes mayhem.                                                                
                                                                                                                                
MS. RUDINGER responded that most  Alaskans would want a person who                                                              
threw a rock through  a window to be punished but  would not think                                                              
of that act as terrorism.                                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR  said maybe  his  act  wasn't designed  for  that                                                              
purpose.                                                                                                                        
                                                                                                                                
MS. RUDINGER said, regarding Chairman  Taylor's question on how to                                                              
draw that line,  she agrees it is a difficult line  to draw so she                                                              
would look  to the First Amendment,  which she read parts  of. The                                                              
First  Amendment provides  for the  right of  people to  peaceably                                                              
assemble  and  to  petition  the   government  for  a  redress  of                                                              
grievances. She said that according  to Section (C) of SB 344, the                                                              
aggravating factor  would apply to  acts that "affect  the conduct                                                              
of a  unit of  government;". Therefore  redressing the  government                                                              
for grievances would be the motive.                                                                                             
                                                                                                                                
CHAIRMAN  TAYLOR clarified  that  it applies  to criminal  conduct                                                              
used to influence  government and asked what is  so shocking about                                                              
that.  He  pointed out  that  by  statute,  one cannot  coerce  or                                                              
financially threaten a seated legislator on how they vote.                                                                      
                                                                                                                                
MS. RUDINGER  said the ACLU  agrees with  that statute but  SB 344                                                              
doesn't affect it. She said:                                                                                                    
                                                                                                                                
     We've  already   got  criminal  conduct.  We've   got  a                                                                   
     conviction  and  now  we're  at  sentencing.  This  bill                                                                   
     really says  [it applies if]  that criminal  conduct was                                                                   
     designed to (A)(B)(C)(D) and  the (A)(B)(C)(D) look like                                                                   
     the  First Amendment's  goal of  protecting -  affecting                                                                   
     change.  It's the  motivation  that is  the  aggravating                                                                   
     factor.  The motivation is  affecting political  change,                                                                   
     the  behavior  should  be  punished  and  we  completely                                                                   
     agree,  no one  has a  right  to use  violence or  force                                                                   
     against people or property for any reason - we agree.                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR said  there must  be some reasons  for which  the                                                              
ACLU is saying there should be no aggravators.                                                                                  
                                                                                                                                
MS. RUDINGER  stated it is not  the conduct, it's the  idea behind                                                              
it that  SB 344  is affecting.  She clarified  that she  is saying                                                              
those  should not  make the  sentence  worse; they  should not  be                                                              
aggravators.                                                                                                                    
                                                                                                                                
CHAIRMAN  TAYLOR  said  he  has  a  difficult  time  working  that                                                              
rationale into watching the Twin  Towers collapse on September 11.                                                              
He can't  believe those  acts were  any other  than criminal  acts                                                              
designed to intimidate or coerce  a civilian population, influence                                                              
the policy  of a  government by intimidation  or coercion,  affect                                                              
the conduct of a unit of government,  or influence the policy of a                                                              
private  enterprise  by  intimidation  or  coercion.  He  said  in                                                              
essence,  Ms. Rudinger  is  saying  those perpetrators  should  be                                                              
charged  with violating  flight laws  of the  U.S. Government  and                                                              
that conduct should be punished.                                                                                                
                                                                                                                                
MS. RUDINGER disagreed and said her  caution to the Legislature is                                                              
that  SB 344  will  "throw  the baby  out  with the  bath  water."                                                              
Alaskans  need  protection from  real  terrorists  but  SB 344  is                                                              
worded so  broadly it could sweep  into its scope  protected First                                                              
Amendment activity by protesters.                                                                                               
                                                                                                                                
CHAIRMAN TAYLOR  said his difficulty in understanding  her concern                                                              
is:                                                                                                                             
                                                                                                                                
     The  fellow  who goes  out  because he's  all  concerned                                                                   
     about the  environment and drives ceramic spikes  into a                                                                   
     tree because he knows that the  detection unit for metal                                                                   
     objects will  not register the  ceramic spike,  and then                                                                   
     the  ceramic spike  in the  tree ends  up in  a mill  in                                                                   
     Oregon  where it goes  through, and  he knows that  it's                                                                   
     going to that  plant, it goes through a high  speed saw.                                                                   
     The saw hits the ceramic spike  and the saw blows up and                                                                   
     kills  the  workman  inside  the plant.  Now  those  are                                                                   
     actual facts.  What's he guilty  of - of trespassing  on                                                                   
     the tree? Or  did he intend and was his  act and conduct                                                                   
     designed to  intimidate and coerce an entire  section of                                                                   
     our population. And if there's  something in there about                                                                   
     his freedom  of speech because  he thought he  was doing                                                                   
     it  for  some  good  purpose, I'm  having  a  hard  time                                                                   
     understanding your analogies.                                                                                              
                                                                                                                                
MS. RUDINGER  said he  would be  guilty of  the criminal  conduct,                                                              
which gets him to the sentencing phase.                                                                                         
                                                                                                                                
CHAIRMAN  TAYLOR asked  if,  at the  sentencing  stage, the  judge                                                              
should consider why  he was motivated to design and  carry out the                                                              
act.                                                                                                                            
                                                                                                                                
MS. RUDINGER said at the sentencing  phase, the fact that somebody                                                              
wanted to  affect political  change should  not be an  aggravating                                                              
factor  on the  sentence.  The sentence  should  be harsh  because                                                              
someone  died  but the  motivation  of  wanting to  affect  change                                                              
should not be the factor that makes the sentence worse.                                                                         
                                                                                                                                
CHAIRMAN TAYLOR replied:                                                                                                        
                                                                                                                                
     The  Unabomber  should not  be  -  should not  have  his                                                                   
     sentence  enhanced because of  the thing that  motivated                                                                   
     him to  blow people up? He  should only be  convicted of                                                                   
     and  sentenced to  whatever  damage, I  guess, the  bomb                                                                   
     caused  when it  went off?  Nobody  should consider  his                                                                   
     motivation  for  doing  it?  I find  that  difficult  to                                                                   
     understand why you would expect  the judge to have those                                                                   
     blinders on.                                                                                                               
                                                                                                                                
MS. RUDINGER  said that is not what  she is saying. She  is saying                                                              
that SB 344 is  so broadly worded that in his  attempt to go after                                                              
real terrorism, he is sweeping into  the scope of this bill people                                                              
who  the ACLU  doesn't think  of as  terrorists. She  noted if  an                                                              
abortion protester  uses force to  block a person from  entering a                                                              
clinic, the protester will be arrested  for assault or battery but                                                              
the motivation could have been to  affect change and should not be                                                              
an  aggravating factor  in sentencing.  She pointed  out that  the                                                              
First Amendment does  not protect a person who  uses criminal acts                                                              
to affect change, and SB 344 does not change that.                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  noted that civil  disobedience is not civil  if a                                                              
person hurts another;  the act is criminal. The  Constitution does                                                              
not sanction criminal acts as free speech.                                                                                      
                                                                                                                                
MS. RUDINGER  said the ACLU is not  saying that the act  is an act                                                              
of free speech.  The act is an act of violence.  She said the ACLU                                                              
agrees with the  premise that criminal conduct  should be punished                                                              
but it does not  agree the sentence should be  harsher because the                                                              
criminal conduct was done to make  a political statement. The ACLU                                                              
believes  doing so  could be  dangerous  because it  will lead  to                                                              
prosecution  of  unpopular  political   ideas  as  an  aggravating                                                              
factor.                                                                                                                         
                                                                                                                                
CHAIRMAN  TAYLOR  said he  understands  Ms. Rudinger's  point  and                                                              
appreciates the  discourse, as it is  important to have  it on the                                                              
record. There was no further testimony on SB 344.                                                                               
                                                                                                                                
SENATOR COWDERY  moved SB  344 to the  next committee  of referral                                                              
with individual recommendations.                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR announced that without  objection, SB 344 moved to                                                              
the next committee of referral.                                                                                                 

Document Name Date/Time Subjects