Legislature(2003 - 2004)
05/07/2004 08:27 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.