Legislature(2003 - 2004)
05/07/2004 08:27 AM Senate JUD
| Audio | Topic |
|---|
* 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, asked to be
joined by the legal drafter, Mr. Luckhaupt. She then pointed out
that the latest version of SB 246 needed to be adopted by the
committee.
CHAIR SEEKINS announced that the latest draft, labeled version
Q, was before the committee, and that without objection, it was
adopted as the work draft before the committee.
SENATOR LINCOLN said she would not repeat the testimony she gave
at a previous hearing on SB 246, but would repeat a statement by
Walt Monegan, Anchorage Chief of Police, who said when asked
about the difference between rage and hatred that rage is
usually directed at an individual while hatred is directed
toward a group. Mr. Monegan's point was that greed motivates
most people to commit a crime; however, the primary motive
behind a hate crime is to create fear in a group.
CHAIR SEEKINS asked Senator Lincoln to review the changes made
in version Q.
SENATOR LINCOLN said the major change was to the title - the
civil aspect was removed because of the question about the title
containing a dual subject. She asked that Mr. Luckhaupt review
the remaining changes.
MR. JERRY LUCKHAUPT, legislative counsel, Division of Legal
Services, told members that Section 1 of one of the previous
versions of the bill was removed. Section 1 pertained to the
civil enforcement scheme, which provided the opportunity to sue
for damages. That was removed because it is already available
under other provisions. The major change was made in Sections 10
and 11. A provision was added to those sections that describes
the penalties that juveniles can receive. He explained:
To correspond with the hate crime or the juvenile that
directs a crime at a person because of their
individual characteristics, we provided the same
penalty for a juvenile that directs a crime at a
police officer, fire fighter, or other emergency
responder. That's section 10 and 11.
SENATOR THERRIAULT asked Mr. Luckhaupt if the hate motivation
issue has been added to a list that already includes those
things or whether a new section was created.
MR. LUCKHAUPT replied that Senator Lincoln's bill contained
additions to the possible penalties for juveniles for other
crimes motivated by hate. He continued, "As part of the
direction I received, the idea was that we wanted to correspond
that, as was done previously in portions of the bill, to the
penalties that are provided for crimes that are directed against
law enforcement or other emergency responders based upon their
duties and so we added in law enforcement provisions to the
juvenile penalty schemes and provided the same penalties as for
the hate crime as for the law enforcement officers."
SENATOR THERRIAULT asked if Mr. Luckhaupt copied the existing
language located elsewhere in the statutes for the police
officers.
MR. LUCKHAUPT said language exists in statute for crimes
committed against peace officers that heightens penalties for
both class A felonies and for misdemeanors. He noted the
Legislature has consistently provided heightened punishment for
that crime and it may be the only crime the Legislature has
consistently provided greater presumptive terms or mandatory
minimum sentences for misdemeanors. He explained:
And so what we did because that was in statute and
from the direction of the Chairman and Senator
Lincoln, we decided to in each place where we're
proposing a greater punishment for hate crimes, if you
don't already impose a greater punishment for law
enforcement officers, I brought up the law enforcement
officer to correspond to that and that was just in
these few areas that I'm going to highlight.
CHAIR SEEKINS said many people who commented about the bill felt
that a hate crime should not be heightened above a similar crime
against a police officer or an emergency responder. However,
their objections began to melt if the motivational level was no
greater than the existing language in statute for peace
officers.
SENATOR LINCOLN added that is why the title was changed to
include an offense against peace officers, fire fighters and
emergency responders to correspond to those areas.
CHAIR SEEKINS asked Mr. Luckhaupt if that was covered everywhere
he could think of in statute.
MR. LUCKHAUPT said yes, and that was the point of the new draft
version. He said those areas in which the heightened punishment
language did not exist were raised to correspond with the
punishment in Senator Lincoln's bill. He explained that Sections
10 and 11 apply the same penalty for law enforcement officers
and Section 9 allows the court to refer a person with special
potential for rehabilitation to a three-judge panel for
sentencing purposes. The aggravating factors for felony
sentencing are on page 5, line 21. He explained:
[On line 21] (13) is the aggravating factor for crimes
committed against cops and emergency responders, (22)
is the aggravating factor that exists in statute
relating to hate crimes. So we've added both of those
into this list of offenses where you can't refer the
case to a three-judge panel. Working back from there,
the rest of the bill is the same and then Senator
Lincoln pointed out to me that Section 13 of the bill
has a requirement that the diversity tolerance program
that is a requirement of sentencing for juveniles, we
put in a provision saying that the court may not
require somebody to take that program until the
Department of Health and Social Services has actually
developed, implemented, and designated the program as
required under the statute so it's not something - a
little Catch 22 for people that you have to take the
program as part of their juvenile adjudication that
doesn't actually exist yet.
SENATOR FRENCH referred to Section 7 on page 4, line 27, which
reads:
(k) A defendant is convicted of a misdemeanor in AS 11
shall be sentenced as
and moved to delete the word "is".
CHAIR SEEKINS announced that without objection [Amendment 1] was
adopted.
MR. LUCKHAUPT indicated that law enforcement officers were also
added to Section 7. The category of a court being able to
classify someone as a worst offender applies to the hate crime
situation in paragraph (1) on line 30, and it also applies to
the existing language for other penalty schemes relating to
directing the offense at a police officer, firefighter, or
emergency responder. The idea of a worst offender is based on
the rationale that the Alaska courts have developed over time,
which allows the court to impose a sentence at the top end of
the range or to the maximum offense if that offender is
classified as the worst in that class of offender.
SENATOR FRENCH, in response to a question from Senator Ogan,
said the motive of the person who attacked a peace officer is
not considered. He continued:
The officer in the uniform is sort of protected by the
uniform and we don't worry about the mental state of
the person who assaults a police officer or a
paramedic or anybody else. We just say that's a worst
offense. You're going to get a minimum of 60 days and
you're a worst offender, which authorizes a maximum
sentence if the judge decides to impose it.
MR. LUCKHAUPT agreed.
SENATOR OGAN commented that he would be more comfortable
confining it to a person who committed a crime against a peace
officer because that person was a peace officer or paramedic and
focus on the intent of the crime rather than the commission of
the crime.
CHAIR SEEKINS asked if this bill will now treat a crime against
a person because of the person's race, etcetera, at the same
level of sentencing and with aggravators as a crime against a
police officer.
MR. LUCKHAUPT said there is no longer an aggravator for class B
and class C felonies or an increased presumptive term for first
offenses directed against peace officers. Those were removed by
the Legislature three or four years ago. He chose not to put
those back in after the discussion yesterday because those were
removed at the request of the peace officers and their
associations because they felt they were getting greater
sentences than any presumptive term that could be provided in
statute. Those are the only two areas that differ and that was
to follow what the Legislature has previously done.
CHAIR SEEKINS asked if there is now an aggravator for class B
and C felonies, for example a crime based on sexual abuse.
MR. LUCKHAUPT said that is correct. They were in the original
bill and remain in version Q as Sections 3 and 4.
CHAIR SEEKINS asked if that same rationale would apply to a hate
crime for a class B or C felony as it would to peace officers.
MR. LUCKHAUPT said possibly but it would depend on the sentences
judges are giving. He explained that when those provisions were
removed four or five years ago, the thinking was that the
aggravating factors could be applied to the sentences of worst
offenders. The Legislature did not want to include presumptive
terms because judges were inclined to follow the presumptive
terms. He said in this case, if there is the perception that
hate motivated crimes are not receiving an adequate starting
point, making a distinction would be beneficial.
SENATOR THERRIAULT asked if this language is all attached to a
motivation that is actually illegal.
MR. LUCKHAUPT said anything related to civil enforcement was
removed so an action for damages based upon a comment someone
made would not apply.
SENATOR THERRIAULT asked if there would have to be an underlying
criminal act with an aggravator. He noted the bill does not
contain any definition of sexual orientation. This version was
derived from a Department of Law bill, which was introduced two
years ago, and he is not aware of what the thinking was on that
topic. He deferred to Ms. Carpeneti.
CHAIR SEEKINS said that was the one area that remained
unresolved among the people he worked with to get support for
the bill. He noted that version S had been distributed and
addresses that topic. He then described version S as follows.
In the first part, Senator Lincoln removed the civil
liability and we've left that alone.
Secondly, I think we've gotten everything except in
the area of what the offense is - we've removed sexual
orientation to address that question.
SENATOR ELLIS asked for the rationale behind removing sexual
orientation.
CHAIR SEEKINS said it was removed to get support for the bill.
He pointed out that sexual orientation is not mentioned anywhere
else in statute and he is not sure that subject should be
addressed for the first time in this legislation.
SENATOR ELLIS asked if hate crimes based on sexual orientation
would not be addressed.
CHAIR SEEKINS said sexual orientation would be on par with
anything other than what is addressed in the bill.
SENATOR OGAN said he has heard privately from pastors that they
are worried that if they quote at a church service certain
passages of the Bible that deal with sexual orientation, they
could be charged with some sort of crime.
CHAIR SEEKINS said he would bring that up for discussion when he
finished explaining the bill. He continued:
The next area that I went into was in - speaking again
with some of the people who I've been working with,
they've said that community service for a juvenile -
we yesterday passed a bill that on a third offense for
driving under the influence of alcohol a juvenile had
a 60 to 80 hour community work service schedule. What
we've suggested in here was 60 to 80 hours [page 6,
subsection (6)]. We would just reduce it from 100
hours flat to 60 to 80 hours to give the judge some
discretion and then farther down, in paragraph (b), it
states that the court would allow the minor's
successful participation in the diversity tolerance
program to count toward the minimum hours of community
work service. If they go to the diversity class, that
counts against their community service time.
And then finally, at the very end, I believe on page
11, we just put ... a four-hour sideboard on the
length...[page 10, lines 29 and 30]. The program
should be designed to be completed in four hours or
less - that's the only change that we made.
SENATOR LINCOLN asked Chair Seekins if the diversity tolerance
program cannot be more than four hours.
CHAIR SEEKINS said he was just trying to put a sideboard on the
timeframe and would not object to an eight-hour program.
SENATOR LINCOLN explained that is why she put language in the
bill allowing the department to develop these programs.
CHAIR SEEKINS said he was trying to provide some direction about
how comprehensive the program should be.
SENATOR LINCOLN did not think four hours was long enough.
SENATOR OGAN said he understands why the sponsor wants a
diversity training program and that he would like to think such
training would have a positive effect but he doesn't believe the
prejudices that people are raised with are likely to change with
such training.
SENATOR LINCOLN said she is uncomfortable with a four-hour
program. She was thinking the time spent in a tolerance program
would count toward the community service hours. She said she is
unaware of any program that will reach everyone but was hoping
the program would spark some good in a person and she doubts
that can be done in a four-hour time period.
CHAIR SEEKINS said he would agree to change the requirement to
an eight-hour program. He said he trusts the Legislature more
than he trusts the bureaucracy to set those limits.
SENATOR LINCOLN said she also does not like the "or less"
language because the requirement could be as short as a 30
minute program.
CHAIR SEEKINS said he would agree to putting a minimum and
maximum time limit in the bill.
SENATOR THERRIAULT said it would still be up to the department
to develop the program; the bill only contains the upper time
limit. He did not think the department would design a 30-minute
program.
SENATOR LINCOLN said she preferred that no time limit be placed
in the bill and thinks the department will have to do some
research and identify what programs work.
SENATOR FRENCH commented that he was thinking the program would
be designed to do some indoctrination one day, let the person
sleep on it and do more indoctrination the next day. He felt an
overnight reflection might stimulate greater understanding and
was thinking of a 16-hour program.
SENATOR LINCOLN said that is why she suggested no less than
eight hours.
SENATOR OGAN felt the public humiliation suffered by the
perpetrators of the paintball incident was probably more
effective in changing behavior than any class.
SENATOR THERRIAULT agreed with Senator French that time for
reflection could be useful but that could be provided with a
four-hour program for two days each, and although he is not
suggesting a specific number of hours, he sees the need for a
cap. He thought that to some extent, public condemnation keeps
society on track. He said he was unaware of version S, which
does not cover sexual orientation. He questioned how a 20-year
old who dates 15-year olds would be considered under the bill
and cautioned the need to be careful.
CHAIR SEEKINS said he did not want to open that "Pandora's Box"
and was only trying to get support for the bill, which required
that topic be left out. He then said he had no problem with
requiring a two-day program with a minimum of six hours and a
maximum of 12. He said he would prefer to use public humiliation
but does not know how to do that under the law.
SENATOR THERRIAULT said he believes the Legislature needs to
give the agency that designs the training program some latitude
to put together a program that works and would not want to
require the agency to split the training program over a two-day
period.
SENATOR FRENCH suggested putting a cap at 12 hours so that the
program cannot be completed in one day. He then so moved.
CHAIR SEEKINS announced that without objection, the motion
carried.
SENATOR ELLIS questioned whether the committee had adopted
version S.
CHAIR SEEKINS clarified that it had not and moved to adopt
version S as the working version before the committee.
SENATOR ELLIS objected and said he is opposed to the deletion of
sexual orientation because he believes it would be easy to get a
standard definition of sexual orientation.
TAPE 04-68, SIDE A
SENATOR ELLIS maintained that to exclude certain people is
wrong.
SENATOR LINCOLN said that while she appreciates the Chair's
effort to pass the bill out of committee, sexual orientation is
a term that has been used by programs elsewhere for hate crimes.
In addition, she has received letters supporting the inclusion
of sexual orientation in the bill. She agreed that sexual
orientation is not defined in statute at this time but said that
doesn't mean it can't be done. She said as the sponsor of the
bill, she believes it should remain in the bill because it has
widespread support.
CHAIR SEEKINS thanked Senator Lincoln but said a lot of work
would have to be done to include it and with it he could not get
support for the bill.
SENATOR OGAN said he is uncomfortable with adopting a new
committee substitute this late in the session.
CHAIR SEEKINS announced an at-ease.
CHAIR SEEKINS asked for a roll call vote on the motion to adopt
version S. The motion carried with Senators Therriault, Ogan
and Seekins in favor and Senators Ellis and French opposed.
CHAIR SEEKINS moved to adopt Amendment 1, to remove the word
"is" on line 24 of page 4. Without objection, the motion
carried.
CHAIR SEEKINS moved to adopt Amendment 2, to replace the number
"4" with the number "12" on page 10, line 30. He then announced
that without objection, Amendment 2 was adopted.
SENATOR LINCOLN asked if he intended to also delete the words
"or less".
For the purpose of clarification, CHAIR SEEKINS moved to
withdraw Amendment 2. The motion carried with no objection.
CHAIR SEEKINS clarified that Amendment 2 is to read as follows,
"to be completed in a maximum of 12 hours."
SENATOR OGAN raised a point of order and asked that the motion
to adopt Amendment 2 be rescinded.
SENATOR OGAN moved to rescind the committee's action on
Amendment 2. With no objection, Amendment 2 was before the
committee.
CHAIR SEEKINS moved to withdraw Amendment 2. Without objection,
Amendment 2 was withdrawn.
CHAIR SEEKINS moved to adopt Amendment 3, which would replace,
on page 10, line 30, the phrase "in four hours or less" with "in
a maximum of 12 hours."
SENATOR LINCOLN asked if that means the program must be designed
to be completed within 12 hours.
CHAIR SEEKINS asked if she wanted to include a minimum number of
hours. He then withdrew Amendment 3 and rephrased it to say "in
12 hours." There being no objection, Amendment 3 was adopted.
SENATOR FRENCH thanked committee members for their hard work on
this legislation and then moved CSSB 246(JUD) to its next
committee of referral with its attached fiscal notes.
CHAIR SEEKINS announced that with no objection, CSSB 246(JUD)
moved from committee.
| Document Name | Date/Time | Subjects |
|---|