Legislature(2003 - 2004)
04/07/2004 08:09 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
SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
SENATOR GEORGIANNA LINCOLN, sponsor of SB 246, informed
members that the media has reported stories related to hate
crimes around the state over the years, the most recent being
a paintball attack on a young woman in November of 2003.
However, many other hate/bias motivated crimes take place that
go unreported. She pointed to a chart of hate crimes in
members' packets from the Anchorage Police Department that
provides just a sampling of what is going on in the state.
Senator Lincoln said SB 246 was drafted after the 2001
Governor's Conference on Tolerance prepared recommendations.
Between 1998 and 2002, Anchorage had 67 reported cases of
hate/bias motivated incidences with only 17 arrests. She
indicated the Anchorage Chief of Police was available to
testify, as were Juneau Douglas High School students who are
representing students who have experienced hate/bias
incidences at school.
SENATOR LINCOLN explained that a hate crime is any criminal
offense committed against a person or property that is
motivated in whole or part by the offender's bias against
race, religion, ethnic or national origin, or sexual
orientation. SB 246 was modeled after national model
legislation created by the Anti-Defamation League. The
League's legal counsel has reviewed the legislation and will
testify today. She pointed out that Alaska and Wyoming are the
only two states that have not enacted a law similar to the
Anti-Defamation League's model.
SENATOR LINCOLN explained that SB 246 expands the state's
penalty enhancement provision in statute. The existing penalty
enhancement provision only applies to defendants facing
presumptive sentences, which are usually repeat felons. It
does not apply to anyone found guilty of a misdemeanor or most
first time felons. SB 246 includes those crimes, thereby
making them eligible for penalty enhancement. For example,
under SB 246, a class B misdemeanor would be elevated to a
class A misdemeanor charge if the offender's actions are
determined to be motivated by prejudice, bias, or hate. If the
crime committed were a class B misdemeanor, it would be
elevated to a class C felony. In the case of the paintball
attack in 2001, one man was charged with seven counts of a
class A misdemeanor, which amounted to a slap on the hands.
Had that man been prosecuted under SB 246, a class C felony
charge would have been added.
SENATOR LINCOLN pointed out the majority of hate crimes
reported in Alaska include assault, intimidation, and
harassment, and would therefore be misdemeanors. Aggravating
factors only apply to felonies; and since most hate crimes are
misdemeanors, the majority of hate crimes are outside of the
scope of aggravating factors in law. SB 246 also adds gender
to its hate crimes legislation, which sends an important
message that gender-based crimes will not be tolerated.
Legislators around the country have realized the importance of
distinguishing race-based and religion-based hate crimes from
gender-based crimes.
SENATOR LINCOLN maintained that what sets hate crimes apart
from other acts of violence is the psychological damage they
do. The American Psychological Association (APA) determined
that victims of hate crimes suffer the symptoms of post-
traumatic stress disorder and social and economic
ramifications. She urged members to read Dr. Langdon's letter
concerning the psychological damages that occur. She then
mentioned that an elder Yupik woman told her of an incident
she recently experienced at a Fred Meyers store in Anchorage.
The woman placed her basket at the side of the aisle to look
at items on the shelf. After a man bumped her basket, she
turned and said excuse me to him, although she was not at
fault. As he passed her, he loudly said watch where you're
going, slant eyes. The woman said it broke her heart but said,
God bless you too, because a child was with him. The woman
believes it is important to feed children words from which
children grow spiritually and she did not want the child to
grow up adopting that man's attitude toward another race.
SENATOR LINCOLN concluded by informing members that several
people were available to testify and answer questions.
8:30 a.m.
SENATOR OGAN indicated that Senator Lincoln's story was very
touching and that the Yupik woman's response was impressive.
He then noted when visiting a Native village years ago, a
Native man warned him that he shoots white men and dumps them
in the river so [Senator Ogan] better get out of the village.
He commented that unfortunately, racism is not always "a one-
way street." Senator Ogan said he struggles with creating a
class distinction in the crime statutes because all crime is
hateful. He questioned whether the legislature will next have
to add political parties to the list in case a Democrat
commits a crime against a Republican or vice versa because the
crime was politically motivated. He expressed concern that SB
246 starts a slippery slope of creating an unequal class of
people.
SENATOR LINCOLN responded that SB 246 is not meant to apply to
any one particular race; it applies to anyone. She stated:
It's the idea that if somebody is so intent, and it
has to be a preponderance of evidence...it just
can't be somebody saying, somebody like the lady in
Fred Meyers, you have to prove - and certainly there
are lawyers here sitting on your committee that know
more than I on that and the Department of Law. But
you would have, I would hope, so few cases that it's
not simply somebody saying somebody said something
wrong to me, that it was because I'm a certain
party. I hope that we never get to that point. But,
you look at these young men that videotaped the
paintball incident that, you will recall, that said
we're out looking for Natives - that particular
incident - and we're not shooting anyone but
Natives. That's all they were looking for and they
had the videotape of that. That should not be
allowed in our society and we, as lawmakers, should
do everything we can to dissuade folks like that
from continuing.
SENATOR OGAN agreed the [paintball incident] is a horrible
example and was an insult to everyone who engages in civil
behavior. He noted the outrage from the community was
appropriate and believes the offenders had no idea the
community reaction would be so intense. He offered that
shooting a person with a paintball is not a terribly serious
crime and the offenders probably would not have gotten in
trouble for it had their actions not been racially motivated.
He said he does not recall the outcome of that crime, but
believes it got a lot more scrutiny because of the community's
outrage.
SENATOR LINCOLN repeated that the offenders were charged with
misdemeanors, which means their hands were slapped. She
agreed that people were outraged, but the statutory punishment
did not allow for more than a misdemeanor charge so they were
not adequately punished.
SENATOR FRENCH reiterated two points made by Senator Lincoln,
the first being that the number of cases that would be brought
under SB 246 would be fairly small for two reasons. The proof
requirements are stringent and, thankfully, hate crimes are
fairly rare. He noted in the absence of the videotape in the
paintball incident, a prosecution would not have been
sustainable.
SENATOR THERRIAULT asked if there is any compelling reason
that these crimes should not be [elevated] with an aggravator.
SENATOR FRENCH pointed out that fourth degree assault crimes
are misdemeanors. A paintball is not inherently dangerous so a
crime using one is a misdemeanor and the aggravators in Alaska
law do not apply to misdemeanors. Therefore, to take into
account the motivation of the crime, the crime must be
elevated to a higher level, which is what SB 246 does. He
added:
And the same would go - even if it were a class C
felony, a first offender on a class C felony,
there's no presumptive term. You can be sentenced to
zero days in jail if the judge sees fit. So it's
not as if - and that sort of leaves two arguments.
It's not as if the person whose charged with this
crime for a fourth degree assault is suddenly going
to go off to jail for a long time. The judge, you
know, looks at the whole picture. The judge can
still send that individual away with no time in
jail. On the other hand, making it a class C felony
gives the judge a lot more leeway because you can
kind of go up to about two years on the first
offense without really running afoul of the law.
SENATOR THERRIAULT asked if SB 246 notches all categories of
crime up one degree.
SENATOR FRENCH said it does.
SENATOR THERRIAULT asked if that could not be done with
aggravators instead.
SENATOR FRENCH said it cannot for misdemeanors.
SENATOR OGAN asked if the law that applies to aggravators and
misdemeanors could be changed.
SENATOR FRENCH said that is what Senator Lincoln is doing with
SB 246.
SENATOR LINCOLN indicated that a representative from the
Department of Law (DOL) was available to answer technical,
legal questions. She then pointed to language on page 2, line
22, and said the word "knowingly" requires a higher mental
element.
SENATOR FRENCH said it is very difficult to prove what a
person is thinking so SB 246 places a high burden on the
prosecution.
SENATOR OGAN referred to line 8 of page 3, specifically the
words, "prejudice, bias, or hatred," and said he can't
imagine, unless a person is insane, a violent crime being
committed by someone who is not motivated by hatred or rage.
He questioned what violent crime is not hateful.
SENATOR LINCOLN deferred to other testifiers to answer that
question.
CHAIR SEEKINS took public testimony.
MR. ROBERT JACOBS, Pacific Northwest Regional Director of the
Anti-Defamation League (ADL), informed members that Mr.
Michael Lieberman, legal counsel, was unavailable because of
Passover, but that Mr. Lieberman would provide written
responses to any legal questions members have tomorrow. He
then gave the following testimony.
Since 1913 it's been the mission of the ADL to stop
the defamation of the Jewish people and to secure
justice and fair treatment to all citizens alike.
We're dedicated to combating prejudice and bigotry
of all kinds and defending democratic ideals and to
promoting civil rights.
The Anti-Defamation League is proud to support SB
246, which would take an important step toward
providing appropriate civil remedies and criminal
penalties for hate crimes in Alaska. SB 246 would
provide for additional and specific penalties for
crimes committed against persons or property because
of that person or the owner or owner's race, color,
religion, nationality, country of origin,
disability, gender, or sexual orientation [indisc.].
46 states and the District of Columbia have passed
hate crimes legislation with strong bi-partisan
support; 31 of those states provide a similar remedy
to the remedies provided in SB 246.
...I did want to respond to a Senator's express
concern that this legislation will create a special
class that needs more protection than others.
Violent crimes of bigotry demand a priority response
because of their special emotional and psychological
impact on the victim and the victim's community. The
damage done by hate crimes cannot be measured solely
in terms of physical injury or dollars or cents.
Hate crimes may effectively intimidate other members
of that victim's community, leaving them feeling
isolated, vulnerable or unprotected by the law. By
making members of minority communities fearful,
angry, and suspicious of other groups, and of the
power structure that is supposed to protect them,
these incidents can damage the fabric of our society
and fragment communities.
Some people ask why a crime committed against an
African-American, a gay person, or a Jew, simply
because that person is African-American, gay or
Jewish, is worse than a random robbery or assault or
vandalism. And aren't we all terribly violated
whenever we are the victims of physical attack? The
answer is absolutely yes. From the victim's
perspective, all crimes create a sense of violation.
But there is a difference. A random crime is
committed not because of a person's identity, but
because of a person's misfortune. A random robbery
is committed not because of who you are, but because
of, for example, you might have money. In a random
crime, if that property hadn't been robbed or
vandalized, it would have been that of some other
unfortunate victim. And so while it might feel
personal, while it's happening, it shouldn't be
taken personally.
But the opposite is true of a hate crime. Hate
crimes are specifically personal. They're committed
against somebody else because of some innate or
unique personal characteristic that can't be
changed, that's immutable: skin color, sexual
orientation, religious background, ethnic origin.
Walking a different, less dangerous route will not
necessarily stop the hate crime perpetrator because
he or she is looking for somebody of your kind and
will find them, if not now, later. The randomness of
the crime motivated by greed, or need, or drug
addiction - that kind of crime is absent, the
motivation is absent from hate crime. That's the
difference. The hate crime - you're not selected
randomly. You're not in the wrong place at the wrong
time. Victims can avoid bad neighborhoods but they
cannot, and they shouldn't have to, escape from who
they innately are.
Hate crimes are based on a victim's race, religion,
gender, sexual orientation, and disability. They
have a special psychological and emotional impact
that extends well beyond that original victim and,
so while bigotry cannot be outlawed, you can't do
something to, say, bigotry - the thoughts themselves
can't be there. Passage of this bill, which will
provide Alaskans with both civil and criminal hate
crime protection and remedies, demonstrates an
important commitment to confront criminal activity
motivated by prejudice.
In partnership with human rights groups, civic
leaders and law enforcement officials can advance
community relations by demonstrating commitment to
be both tough on hate crime perpetrators and
sensitive to the special needs of the hate crime
victims. The intent of penalty hate crime laws is
not only to reassure the targeted groups by imposing
serious punishment on hate crime perpetrators, but
also to deter those crimes by demonstrating that
they will be dealt with in a serious manner. Under
these laws, no one is punished merely for bigoted
thought, ideology or speech but when prejudice
prompts somebody to act on those beliefs and engage
in criminal conduct, a prosecutor under these laws
may seek a more severe sentence but must prove
beyond reasonable doubt the victim was intentionally
selected because of his or her personal
characteristics.
The fundamental cause of bias-motivated violence is
the persistence of racism, bigotry, and anti-
Semitism. Unfortunately, there is not quick,
complete solution to these problems. Ultimately the
impact of all bias crime initiates will be measured
by the response of the civil judicial and the
criminal judicial systems to the individual act of
hate crimes or hate violence. Enactment of SB 246,
along with the implementation of other hate crime
training, prevention, and anti-bias education
initiatives is, in the words of the ADL's mandate, a
step toward justice and fair treatment for all
citizens alike.
So we applaud the leadership of Senator Lincoln on
this measure and we urge the committee to approve
this important legislation. Thank you.
CHAIR SEEKINS thanked Mr. Jacobs and asked Mr. Nelson Angapak
to testify.
MR. NELSON ANGAPAK, SR., representing the Alaska Federation of
Natives (AFN), stated support for SB 246. He asked that his
written statement and a letter from Julie Kitka be
incorporated into the committee record [located in the
committee file]. Mr. Angapak stated the following:
Hate crimes know no racial boundaries. Right here in
Alaska...perpetrators of hate crimes have targeted
the Alaska Natives. I know somebody remarked a while
ago that shooting someone with a paintball will not
kill the person in and of itself and I agree.
However, the psychological impact of that incident
is greater and longer lasting. I saw the whole
paintball videotape and I can still recall the young
man saying, 'Let's go out and hunt those mukluk
Eskimos.' I am an Eskimo from Kobuk. And Mr.
Chairman, sometimes when I'm driving down that road
and I'm walking outside, I wonder is there somebody
out there looking for me to shoot me. I think, Mr.
Chairman, it's more important to - rather than talk
about the philosophy of whether or not a paintball
law should be incorporated, I think this committee
should seriously consider the passage of SB 246
because if this bill is incorporated as Alaska state
statute, perhaps, and it is my hope, that it will
act as a deterrent for those folks who might be
contemplating [indisc.] of paintball.
Mr. Chairman, I applaud that the legislature in 2001
- that they condemned the paintball incident. I
think, Mr. Chairman, what the legislature did not
accomplish at that point was to pass a hate crimes
statute and I would like to commend you guys for
giving yourselves a second opportunity of passage of
a hate crime bill that will elevate this kind of
crime from a misdemeanor to a higher level of crime.
Mr. Chairman - last point. On behalf of the Alaska
Federation of Natives, we would urge you to
seriously consider moving the bill out of your
committee and urge your Senate colleagues to
strongly support its passage. Thank you very much
and if you have any questions, I will be more than
delighted to answer them at this point.
There being no questions, CHAIR SEEKINS thanked Mr. Angapak
and called Mr. Monegan.
MR. WALT MONEGAN, Chief of the Anchorage Police Department,
stated support for SB 246. He noted he sent a letter to the
committee that strongly states his opinion, but he offered to
shed some light on some of the concerns he heard expressed
during the hearing. He said the difference between rage and
hatred, in his personal opinion, is that rage is usually
directed at an individual while hatred is directed toward a
group. He said that type of a situation is much more divisive
and destructive to any community. He said that is not
something he wants to see take root in Anchorage or any
community. His second point was that personal gain or personal
greed motivates most people to commit a crime. The primary
motive behind a hate crime is to create fear in a group. That
differs from a normal criminal act.
There being no questions, CHAIR SEEKINS called Ms. Buchholdt.
MS. THELMA BUCHHOLDT, an Anchorage attorney in private
practice, said that while she is not testifying on behalf of
all of the various ethnic organizations, she is a member of
the Filipino Community of Anchorage, Inc., the Filipino
American National Historical Society, the Filipino Arctic Folk
Ensemble, the U.S. Commission for Civil Rights Advisory
Committee, and the Catholic Social Services Advisory Committee
for Immigration and Refugees, among others.
MS. BUCHHOLDT said she heard that SB 246 might do better this
year because it has no fiscal note. She served on both the
House Finance and Judiciary Committees for several years
during her four terms in the [Alaska] House of Representatives
and is aware that a bill with no fiscal note is generally a
mere gesture and hardly enforceable. She continued:
However, in this case, the legislation will be
enforced by the prosecutors and the courts in their
normal course of criminal procedures. I believe
there should be a fiscal note to this bill to
provide for the design and establishment of our
diversity [indisc.] training programs, mandated for
juvenile offenders within the Department of Health
and Social Services. And, for adult offenders, we
need the corrections system.
I do have one concern, and that's in SB 246. As
drafted now, it would curtail the court's ability to
apply the SIS - or suspend imposition of sentence -
which I consider to be an important tool in
dispensing justice. For crimes such as felony
assault, where the SIS is already disallowed, this
legislation would make no difference. Here under SB
246, however, but for the hate crime factor, SIS
would not be an option. However, I believe that the
bill should be amended to require some
specifications and conditions [indisc.] as the moral
rehabilitation of the offender. As a condition of
avoiding jail and having this shameful crime
dismissed, hate criminals should be required to
undergo well-designed programs of diversity,
tolerance, counseling and training. This would allow
our judges with greater discretion that is expressly
provided by [SB] 246.
While I'm not convinced that mandatory sentencing
and [indisc.] hate crime offenders will deal
effectively with the underlying hatred, I do think
that the proper discretion and direction, judges can
condition SIS release and ongoing diversity-
tolerance programs to help to change the heart and
mind of the hate crime offender. However, what is
clear is that the offender's hatred is badly
engendered, particularly in the case of juvenile
offenders. Family counseling should be ordered as a
condition of SIS release. In addition, conditioning
SIS release on diversity, tolerance, training, and
the Department of Corrections should likewise
condition probation and early parole.
Thank you for hearing me out this morning. I think
that you should pass this bill. It would be our
public declaration of our intolerance for hate crime
practices....
SENATOR THERRIAULT informed Ms. Buchholdt that two of the
fiscal notes are indeterminate, not zero, so the departments
may incur an expense but do not know how much that might be.
TAPE 04-36, SIDE B
MS. DENISE MORRIS, President of the Alaska Native Justice
Center, told members she served as a member of the Tolerance
Commission, formed in 2001. The Justice Center represented and
advocated on behalf of several of the paintball incident
victims who were traumatized. She believes many of them had
been victims of hate crimes in the past but those crimes went
unreported. When the Tolerance Commission traveled and took
testimony across Alaska, many people came forward and said
they had been victims of hate crimes. She pointed to the
Poindexter serial rapist case, of which all nine victims were
Alaska Native women. That crime was not treated as a hate
crime. More recently, in the Hunter case, 99 percent of the
victims were Alaska Native women. No aggravator could be
applied to those cases because Alaska does not have hate crime
legislation.
MS. MORRIS noted that Alaska Native women are 4.5 times more
likely to be homicide victims. In Anchorage alone, over 50
percent of the reported cases of sexual assault are reported
by Alaska Native women. Alaska Native men are much more likely
to be homicide victims and more likely to be victims of hate
crimes in Alaska. She understands the concerns expressed by
members, but the bill reflects the values of people and
signals that crimes motivated by hate are especially tragic.
An open society is one that promotes fundamental human rights,
guarantees impartial justice, provides opportunities for
people to make the most of their talents and makes public
decisions through a democratic process that is open to full
participation and constant re-examination. SB 246 alone cannot
eliminate bias and hate but it will hold people accountable
for their actions. She urged members to pass SB 246.
9:00 a.m.
MS. CELESTE HODGE, Deputy Director and Community Outreach
Liaison of the Anchorage Mayor's Office of Equal Opportunity,
shared a hate message left on her voice mail immediately after
launching a program to increase diversity within the municipal
workforce. The message left her feeling terrorized and
vulnerable. She encouraged members to pass SB 246.
MR. NICK KOKOTOVICH, a member of the Youth Leadership Team,
and chair of the "Undo Racism Group," told members he attends
Yakoosgé Daakahídi, part of Juneau-Douglas High School (JDHS).
He has seen a lot of hate crimes at JDHS this past year while
visiting. He said although a paintball cannot kill a person,
it can cause serious eye damage. He told members that last
year, because he is Native, he was harassed to the point of
physical violence by a certain person. The same boy harassed
three other Native boys. The school district suspended [the
perpetrator] for three days, along with the boys who were
harassed, because the school has a policy of no fighting. SB
246 will give all youth in Alaska the security they need.
MS. ALEXIE OLSON, a junior at JDHS, told members she is
involved in school activities, gets good grades, and is
related to Elizabeth Peratovich. She said during her sophomore
year at JDHS she wanted to quit school. Students were
harassing her every morning at school, pushing her so that she
would burn herself with the hot drink she carried. Her
girlfriend who is not Alaska Native did not experience any
harassment, although they were together everyday. She reported
the incidences to the school administrator but nothing was
done. She recounted being pushed, called names, shoved into
lockers, and hurried down stairs purposely. She remarked that
all Alaska Natives experience racial discrimination and
harassment. Most of them just want to complete their
educations in a safe environment and to be respected for who
they are. She asked members to pass the bill.
SENATOR OGAN asked Ms. Olson if her dislocated knee was caused
by the harassment.
MS. OLSON said she was shoved by a "white" person and injured
herself badly.
SENATOR OGAN asked Ms. Olson if she reported that incident to
the police.
MS. OLSON said she did not.
SENATOR OGAN expressed sympathy about her experience but said
he also was shoved around in the halls at school because of
his size. In retrospect, he turned it into a good thing
because although he suffered a lot from that harassment, he
took karate and took on his opponent. That was the last time
he was harassed. He hoped Ms. Olson's experiences can make her
a stronger person.
CHAIR SEEKINS asked Ms. Olson if the school administration
does nothing when she reports these incidences.
MS. OLSON said that she was called into the minister's office.
He had her point out the people who were harassing her but
nothing came of it. The harassment continued all year.
CHAIR SEEKINS asked Ms. Olson if she has a counselor she can
work with in the school to bring these issues to the
administration's attention and increase awareness.
MS. OLSON said she told some of her teachers because they saw
the burns on her arms but they told her to talk to her
counselor who told her to talk to the administrator. She did,
but no follow-up occurred.
CHAIR SEEKINS expressed concern that nothing was done about
basic bad behavior.
SENATOR LINCOLN told members that the students marched to the
Capitol Building about two weeks ago and started a dialog with
the school administration. She believes that because of these
students, the allegations are being looked into but she does
not know the results yet. She added that someone is writing
KAN on the school and buses, an acronym for kill all Natives.
CHAIR SEEKINS asked if it would be a crime to deliberately
cause a person to burn herself with hot liquid.
SENATOR FRENCH affirmed it would.
CHAIR SEEKINS encouraged anyone in that situation to pursue
whatever remedy is necessary to prevent that from happening
again.
SENATOR FRENCH commented that there was a spate of racially
motivated incidents at JDHS, which has raised the awareness of
the community and sparked some rallies. He believes the
reports have gotten back to the authorities and the community
has given a fair amount of attention to the matter.
CHAIR SEEKINS thanked participants and announced that he would
hold the bill in committee to allow others to testify and to
address members' concerns. He then announced a five-minute
recess.
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