Legislature(2007 - 2008)BELTZ 211

02/11/2008 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 211 AGGRAVATING FACTOR: HOMELESSNESS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 226 VEXATIOUS LITIGANTS TELECONFERENCED
Moved SB 226 Out of Committee
+= SB 247 MISSING PERSONS TELECONFERENCED
Moved CSSB 247(JUD) Out of Committee
+ Other Bills Previously Heard/Scheduled TELECONFERENCED
            SB 211-AGGRAVATING FACTOR: HOMELESSNESS                                                                         
                                                                                                                                
1:33:54 PM                                                                                                                    
                                                                                                                                
CHAIR FRENCH announced the consideration of SB 211.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI joined the meeting.                                                                                        
                                                                                                                                
JANA KREOFSKY, legislative intern to Senator Bettye Davis,                                                                      
introduced SB 211 on behalf of the sponsor. She read the                                                                        
following sponsor statement into the record.                                                                                    
                                                                                                                                
     SB 211 allows the court  to increase the active term of                                                                    
     imprisonment  for felonies  up to  the maximum  term of                                                                    
     imprisonment, even for a first  offense, for factors in                                                                    
     aggravation.   Current   sentencing  provisions   allow                                                                    
     imposition of  a sentence  above the  presumption range                                                                    
     set  out in  AS 12.55.125  based on  race, sex,  color,                                                                    
     creed,  physical  or  mental disability,  ancestry,  or                                                                    
     national origin  as set out in  AS 12.55.155(c)(22). SB
     211  adds "homelessness"  as an  aggravating factor  to                                                                    
     this section.                                                                                                              
                                                                                                                                
     The  purpose of  this statute  is to  deter and  punish                                                                    
     defendants motivated  to harm  homeless people  who are                                                                    
     particularly  vulnerable  and increasingly  targets  of                                                                    
     crime.  Violent crimes  against the  homeless increased                                                                    
     65 percent  from 2005-2006, according to  a 2006 report                                                                    
     by the  National Coalition for  the Homeless.  The 2006                                                                    
     numbers  reflect  a  170  percent  increase  since  the                                                                    
     organization's  first  study  in  1999.  This  national                                                                    
     trend is reflected in the  more than 14,000 individuals                                                                    
     who  experience  homelessness   in  Alaska  each  year,                                                                    
     according  to the  2005 Alaska  Interagency Council  on                                                                    
     Homelessness  report,  "Keeping  Alaskans  Out  of  the                                                                    
     Cold." This violence against the  homeless has a direct                                                                    
     impact  on   the  victim,  the  victim's   family,  the                                                                    
     community, and Alaska as a whole.                                                                                          
                                                                                                                                
1:36:31 PM                                                                                                                    
GEORGE BRIGGS,  Executive Director, Juneau  Cooperative Christian                                                               
Ministry, "The Glory Hole", stated  support for SB 211. The Glory                                                               
Hole is  a 40-bed  homeless shelter and  soup kitchen  in Juneau.                                                               
Over the  course of a year  he sees about 20  percent of Juneau's                                                               
substantially  high  homeless  population. During  his  15  month                                                               
tenure,   he  has   seen   crimes   committed  against   homeless                                                               
individuals  committed for  no apparent  reason  other than  that                                                               
they are  homeless. Citing  several examples,  he said  these are                                                               
senseless  acts  of  violence   that  target  a  very  vulnerable                                                               
population. Generally,  homeless people  want to  be part  of the                                                               
community  but they've  been ostracized  and have  learned to  be                                                               
mistrustful. "This is  a group of citizens that have  a hard time                                                               
trusting even me." As such,  they're reluctant to report personal                                                               
assaults  to the  police. Although  he doesn't  agree at  all, he                                                               
knows that some homeless individuals  have the attitude that they                                                               
deserve to be attacked.                                                                                                         
                                                                                                                                
MR.  BRIGGS said  SB  211 will  give the  courts  the ability  to                                                               
address crimes against  the homeless in a  different manner. This                                                               
will help send  the message that "you can't just  walk around the                                                               
street and beat up people just for the heck of it."                                                                             
                                                                                                                                
1:41:07 PM                                                                                                                    
DANIEL UNGIER,  United Way  of Southeast  Alaska, said  he chairs                                                               
the Juneau Homeless  Coalition which looks at the  root causes of                                                               
homelessness.  When he  first heard  about SB  211 he  questioned                                                               
adding homelessness as a separate  factor, but that was before he                                                               
knew  anything about  "Bum Fights  Online." This  privately made,                                                               
low  budget  film series  has  played  an  integral part  in  the                                                               
skyrocketing  increase in  violence against  the homeless.  These                                                               
are videos of people who shout  the phrase, "bum fights" and then                                                               
attack someone  who is playing  a stereotypical  homeless person.                                                               
In particular  this phenomenon is  sweeping through  young people                                                               
and references are  beginning to show up  in mainstream Hollywood                                                               
movies. The essential message is that  it does no harm to beat up                                                               
the homeless because they really aren't contributing to society.                                                                
                                                                                                                                
MR. UNGIER said he concluded  that "homelessness" should be added                                                               
as  an   aggravating  factor  because  these   people  are  being                                                               
stereotyped  and disproportionately  targeted  simply because  of                                                               
their homeless  status. In  fact, 21  percent of  homeless people                                                               
report being the victim of a  violent crime compared to 1 percent                                                               
of  the general  population. Bum  fight videos  have created  the                                                               
image  that an  easy way  to  have fun  is to  target and  attack                                                               
someone because of their specific status.                                                                                       
                                                                                                                                
MR.  UNGIER said  this legislation  is about  more than  imposing                                                               
stiffer sentences. It's about making  a statement about this kind                                                               
of crime and about reducing how  often it happens. SB 211 sends a                                                               
strong message; it counteracts stereotyping,  and it could make a                                                               
real difference.                                                                                                                
                                                                                                                                
1:45:54 PM                                                                                                                    
SENATOR  HUGGINS  observed that  in  his  dealings with  homeless                                                               
people,  most of  whom are  veterans, he's  concluded that  often                                                               
they're a  victim of  a crime by  another homeless  person. "What                                                               
does  that do  to  the  definition we're  doing  here  if it's  a                                                               
homeless person with a crime on a homeless person," he asked.                                                                   
                                                                                                                                
MR. UNGIER replied  he's heard stories along those  lines but the                                                               
statistics indicate  that perpetrators are targeting  people they                                                               
don't know.  "I don't know what  the impact would be  on homeless                                                               
against homeless crimes," he said.                                                                                              
                                                                                                                                
CHAIR FRENCH suggested that the  Department of Law representative                                                               
might be able to provide an answer.                                                                                             
                                                                                                                                
SENATOR  HUGGINS  asked  how  couch-surfing  teenagers  would  be                                                               
addressed.                                                                                                                      
                                                                                                                                
MR. UNGIER  said he understands  that for the  aggravating factor                                                               
to  apply,  the  person  must be  knowingly  targeted  for  their                                                               
homelessness. He wouldn't  expect the law to apply  to a teenager                                                               
who is couch surfing.                                                                                                           
                                                                                                                                
1:48:29 PM                                                                                                                    
SENATOR HUGGINS questioned how someone  knows that another person                                                               
really is homeless.                                                                                                             
                                                                                                                                
MR. UNGIER  explained that people  who have just left  a homeless                                                               
shelter and people who fit the stereotype are targeted.                                                                         
                                                                                                                                
SENATOR  HUGGINS observed  that in  Anchorage there's  a sizeable                                                               
number of  people who are  sequestered somewhere off  the street.                                                               
"The common  thing amongst  them is if  you fall  asleep somebody                                                               
will bong you on the head and  take your fifth of whiskey or your                                                               
sleeping bag  or you bunny boots  if it's really cold."  It seems                                                               
to be a cycle among a certain colony of people, he said.                                                                        
                                                                                                                                
1:50:18 PM                                                                                                                    
SAMUEL J. FORTIER  stated support for SB 211.  He's practiced law                                                               
in Anchorage  for more  than 25  years and  some of  his practice                                                               
involves  homeless advocacy.  Referring  to  the suggestion  that                                                               
only homeless  people target other  homeless people, he  said his                                                               
experience  is the  opposite. Several  years ago  in Anchorage  a                                                               
group  of youths  took videos  of paintball  attacks on  homeless                                                               
people. Clearly  that was  a hate-related  crime that  focused on                                                               
the category of  homeless people. The purpose was to  make fun of                                                               
certain  people and  put  it on  video. "There  was  no basis  in                                                               
attacking  those  people  other  than the  fact  that  they  were                                                               
homeless."                                                                                                                      
                                                                                                                                
1:53:31 PM                                                                                                                    
SENATOR THERRIAULT joined the meeting.                                                                                          
                                                                                                                                
MR.  FORTIER relayed  that on  any  given night  there are  about                                                               
3,500 people  in Alaska  who don't  have homes.  At least  700 of                                                               
those individuals  will be  attacked and  probably 20  percent of                                                               
the  attacks will  be violent.  The basis  for the  attacks isn't                                                               
because  someone  is reaching  for  another  person's bottle,  he                                                               
said. A number of the takings  are on the basis that these people                                                               
are homeless. "It's on the basis  of status; it's on the basis of                                                               
hate." We  do have a  responsibility for these individuals  if we                                                               
consider that  they are among  the most vulnerable, he  said. The                                                               
reasons for homelessness  are varied; it's not  simply because of                                                               
mental  problems  or  drug  and   alcohol  abuse,  although  many                                                               
homeless  are  faced with  those  problems.  People are  rendered                                                               
homeless because of economic conditions  too. There is a need for                                                               
an  aggravator, he  said. We  need to  send a  message that  it's                                                               
wrong to  attack vulnerable people  on the basis of  status. Ours                                                               
is an  inclusive society that  doesn't exclude people  from basic                                                               
protections  and  basic   human  rights.  Discriminating  against                                                               
people on the basis of gender  or race isn't permitted and people                                                               
who are on the outskirts  of society based on economic conditions                                                               
should be similarly protected.                                                                                                  
                                                                                                                                
1:56:16 PM                                                                                                                    
MR. FORTIER  revealed that he  was homeless in Dillingham  in the                                                               
early 1970s when  housing was in short supply.  The difference is                                                               
that he was  in a village where people take  care of one another.                                                               
"That's not  so in a  large city." When  you're at the  bottom of                                                               
the economic heap in Anchorage you  are preyed upon. It's time to                                                               
add the  aggravator for the most  serious felonies. Consideration                                                               
should  also be  given to  including homelessness  in other  hate                                                               
crime legislation, he said.                                                                                                     
                                                                                                                                
1:58:06 PM                                                                                                                    
DIANNE SLIGHTER  described herself as a  concerned Juneau citizen                                                               
who listened  when Representative Andrea Doll  introduced similar                                                               
legislation. She said  it's not difficult to  identify a homeless                                                               
person because their entire composure  is different; they're sort                                                               
of  inside  themselves.  She  drew  a  parallel  between  current                                                               
violent  attacks on  homeless people  and  the violent  gladiator                                                               
sports from ancient  times. "What difference is  it today?" These                                                               
vulnerable people are targeted just for sport and it's wrong.                                                                   
                                                                                                                                
CHAIR FRENCH welcomed Representative Doll.                                                                                      
                                                                                                                                
2:00:54 PM                                                                                                                    
REPRESENTATIVE ANDREA DOLL  said she is proud  to have introduced                                                               
legislation similar  to SB 211.  Many Americans are not  all that                                                               
far  from  homelessness  but  her   reason  for  introducing  the                                                               
legislation relates  to homeless women with  drug abuse problems.                                                               
Often they aren't  able to go into the AWARE  women's shelter and                                                               
they don't feel  safe in the other shelters in  town. That places                                                               
them in the  vulnerable position of being on  the street. They're                                                               
worried  about rape  and assault  and  sometimes they're  worried                                                               
about  not being  treated  fairly  by the  police.  She said  she                                                               
realized that she  couldn't build a shelter,  although she'd like                                                               
to  work  on   that.  What  she  could  do   is  highlight  these                                                               
individuals'  plight and  show that  we care  about their  value.                                                               
Adding "homelessness" as  an aggravating factor is one  way to do                                                               
that.                                                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  the Department  of  Law to  explain what  it                                                               
takes to prove an aggravator,  what would happen if an aggravator                                                               
were proved,  and at what stage  of the proceedings it  has to be                                                               
proved.                                                                                                                         
                                                                                                                                
2:03:15 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department of  Law (DOL) explained  that this  aggravating factor                                                               
would be subject  to the Blakely decision.  The prosecution would                                                               
have  to  prove beyond  a  reasonable  doubt that  the  defendant                                                               
directed the  crime toward the  victim because of  their homeless                                                               
status. "It would be a  difficult aggravating factor to prove, as                                                               
are others in this particular paragraph of aggravators."                                                                        
                                                                                                                                
CHAIR  FRENCH referred  to the  questions  Senator Huggins  posed                                                               
earlier about defining who is  homeless, knowing who is homeless,                                                               
and  about  couch  surfers.  In   his  mind  they  highlight  the                                                               
difficulties should DOL try to prove this aggravator.                                                                           
                                                                                                                                
MS. CARPENETI  agreed it will be  difficult. "This is not  one we                                                               
will be able to establish  often." Initially she thought it would                                                               
be a  good idea  to include  a definition  but then  she realized                                                               
that  none of  the other  factors  are defined  in statute.  It's                                                               
something that  the courts can  apply when it's reasonable  to do                                                               
so. But  it won't happen often.  It would be even  more difficult                                                               
to prove that a homeless  person targeted another homeless person                                                               
because they were homeless.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  referred  to  Senator   Huggins'  example  of  one                                                               
homeless person preying on another  for their belongings and said                                                               
to prove  that the crime  was based on homelessness  you'd almost                                                               
need a video of the person  stating their motive into the camera.                                                               
"Absent that sort  of confession…it's going to  be very difficult                                                               
to prove."                                                                                                                      
                                                                                                                                
MS. CARPENETI agreed.                                                                                                           
                                                                                                                                
2:06:23 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if  the person  actually  has to  be                                                               
homeless or if  it's just the attacker's  perception that they're                                                               
homeless. For example, a person who  is kicked out of their house                                                               
and  is attacked  when they're  sleeping  on a  park bench  isn't                                                               
really homeless, but the attacker thinks they are.                                                                              
                                                                                                                                
MS. CARPENETI replied  it would depend on the  facts, but someone                                                               
who was  kicked out of  their house could be  considered homeless                                                               
if they had no place to go.                                                                                                     
                                                                                                                                
SENATOR  HUGGINS said  his concern  is  that this  could be  just                                                               
another  statute without  teeth. "I'm  not so  sure the  societal                                                               
will to  be able  to follow  through with  some sort  of oomph-no                                                               
matter what we legislate-is there."                                                                                             
                                                                                                                                
CHAIR FRENCH  asked what affect  it would  have on a  sentence if                                                               
this aggravator were proved.                                                                                                    
                                                                                                                                
MS. CARPENETI explained that it  would allow the sentencing court                                                               
to  increase the  presumptive sentence  to the  maximum for  that                                                               
level  of  crime.  For  example,  if  it  were  established,  the                                                               
sentencing court could  sentence to the maximum term  of 20 years                                                               
for a class A felony.                                                                                                           
                                                                                                                                
CHAIR FRENCH  asked if  the judge would  be required  to increase                                                               
the sentence.                                                                                                                   
                                                                                                                                
MS.  CARPENETI  said  no;  the court  has  more  discretion  once                                                               
aggregating factors  and mitigating factors are  established, but                                                               
it does not have a mandatory effect.                                                                                            
                                                                                                                                
2:09:31 PM                                                                                                                    
CHAIR FRENCH  summarized that it  would be a  fact-driven inquiry                                                               
after  which the  judge would  consider the  elements and  decide                                                               
whether or not to add time to the sentence.                                                                                     
                                                                                                                                
MS. CARPENETI said that's correct.                                                                                              
                                                                                                                                
CHAIR  FRENCH  referred to  Senator  Huggins'  concern about  the                                                               
effectiveness   of  adding   "homelessness"   to   the  list   of                                                               
aggravators and said  the point is well taken. "It  may sit there                                                               
unused  on the  books for  decades." Similarly,  he's never  seen                                                               
creed alleged  as an aggravator,  but it's  on the list.  This is                                                               
more a  statement of  our values.  "If someone  is going  out and                                                               
attacking a  person just  because they're  homeless and  you have                                                               
the ability  to prove that …  it's worthy of having  that word on                                                               
the books." The  prosecutor will have that tool  in their toolbox                                                               
and the judge  will have the ability to "make  an upper departure                                                               
on the sentence because of the nature of the assault."                                                                          
                                                                                                                                
2:10:29 PM                                                                                                                    
SENATOR THERRIAULT  said he doesn't  disagree but  he understands                                                               
Senator Huggins' concern.  "We pat ourselves on the  back, we add                                                               
another line -  it may never be used except  for the one instance                                                               
where,  as you  said,  there's  a video  tape."  I  don't have  a                                                               
problem if  the bill passes  but this doesn't solve  the homeless                                                               
problem or the issue of violence against the homeless, he said.                                                                 
                                                                                                                                
SENATOR  THERRIAULT noted  that the  sponsor statement  says that                                                               
according  to  a  national  study   violent  crimes  against  the                                                               
homeless have  increased by  65 percent  from 2005-2006.  It also                                                               
says  that the  national  trend  is reflected  in  the more  than                                                               
14,000  individuals  who are  homeless  in  Alaska. He  asked  if                                                               
there's a  direct link and there  has been a 65  percent increase                                                               
in violence against the homeless in Alaska.                                                                                     
                                                                                                                                
MS. KREOFSKY clarified that is  a national statistic and although                                                               
violent crime  against the homeless  is reported to be  rising in                                                               
Alaska, she doesn't have specific data.                                                                                         
                                                                                                                                
2:13:11 PM                                                                                                                    
TOM  OBERMEYER,  Aide  to   Senator  Davis,  highlighted  several                                                               
definitions of  "homelessness" and  relayed that for  the purpose                                                               
of this  section the  definition is, "An  individual who  lacks a                                                               
fixed regular and  adequate nighttime residence or  has a primary                                                               
nighttime residence  that is not designed  for permanent living."                                                               
Thus  a person  in one  of  those temporary  situations could  be                                                               
identified as homeless. The statutes  don't mention perception of                                                               
homelessness,  but the  term "knowingly"  is used.  That goes  to                                                               
Senator French's point  of trying to prove  someone knowingly did                                                               
this by  putting the  attack on  the Internet,  he said.  What is                                                               
most important  though is that  this will  send a message  to the                                                               
general population  to be  more sensitive  to homeless  people in                                                               
general.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  asked Mr.  Obermeyer to  submit the  definitions to                                                               
his office. He would hold SB  211 so the committee could consider                                                               
whether or  not the term "homelessness"  is adequately understood                                                               
to allow a jury to make a good decision.                                                                                        
                                                                                                                                

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