Legislature(1993 - 1994)

03/11/1994 01:30 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     HOUSE FINANCE COMMITTEE                                   
                         March 11, 1994                                        
                            1:30 p.m.                                          
  TAPE HFC 94-58, Side 2, #000 - end.                                          
  TAPE HFC 94-59, Side 1, #000 - end.                                          
  TAPE HFC 94-59, Side 2, #000 - 420.                                          
  CALL TO ORDER                                                                
  Co-Chair Larson called the House  Finance Committee to order                 
  at 1:30 p.m.                                                                 
  Co-Chair Larson             Representative Hoffman                           
  Co-Chair MacLean            Representative Martin                            
  Vice-Chair Hanley                                                            
  Representative Brown        Representative Parnell                           
  Representative Foster       Representative Therriault                        
  Representative Grussendorf                                                   
  Representative Navarre was not present for the meeting.                      
  ALSO PRESENT                                                                 
  Bishop Michael Kenny, Diocese of Juneau; Charles Rohrbacher,                 
  Juneau;   Charles   Campbell,  Ex-Director,   Department  of                 
  Corrections; John Salemi, Director, Public Defender  Agency,                 
  Department of Administration;  Brant McGee, Director, Office                 
  of  Public  Advocacy,  Department  of Administration;  Nancy                 
  Shaw,   Anchorage   Federal   Defender;   Kimberly   Martus,                 
  Anchorage, Alaska NAtive Justice  Center; Donald Cabana, Ex-                 
  Warden  of  Mississippi  Prison  System;  Virgina  Phillips,                 
  Sitka; John Shaffer, Stika; John Lyle, Fairbanks;                            
  SUMMARY INFORMATION                                                          
  HB 162    "An    Act    authorizing    capital   punishment,                 
            classifying  murder  in  the  first  degree  as  a                 
            capital   felony,   and   establishing  sentencing                 
            procedures  for  capital felonies;  authorizing an                 
            advisory vote on  instituting capital  punishment;                 
            amending  Alaska Rules  of Criminal  Procedure 32,                 
            32.1,  and  32.3  and  Alaska  Rules  of Appellate                 
            Procedure 204,  209, 210,  and 212;  and providing                 
            for an effective date."                                            
            SSHB  162   was  HELD  in  Committee  for  further                 
  HOUSE BILL NO. 162                                                           
       "An  Act  authorizing  capital punishment,  classifying                 
       murder  in the  first degree as  a capital  felony, and                 
       establishing   sentencing   procedures    for   capital                 
       felonies; authorizing  an advisory vote  on instituting                 
       capital punishment; amending  Alaska Rules of  Criminal                 
       Procedure  32,  32.1,  and  32.3  and Alaska  Rules  of                 
       Appellate  Procedure  204,  209,  210,  and   212;  and                 
       providing for an effective date."                                       
  Co-Chair Larson noted that  SSHB 162 would be assigned  to a                 
  subcommittee consisting  of Co-Chair  MacLean  as Chair  and                 
  Representatives Hanley and Brown.                                            
  REPRESENTATIVE SANDERS testified in support of SSHB 162.  He                 
  noted that the advisory vote, section  13, was removed by an                 
  amendment adopted by  the House  Judiciary Committee.   (The                 
  House Judicary  Committee did not incorporate  the amendment                 
  into a House Judicairy Committee Substitute.)                                
  Representative Sanders  felt that fiscal impact estimates in                 
  fiscal notes submitted for SSHB 162 are too high.                            
  Representative  Sanders  quoted  testimony   by  Mr.  Edward                 
  McNally, District Attorney, Anchorage to the House Judiciary                 
       "In this state,  we rarely  ever see a  guilty plea  to                 
       First Degree  Murder.   That is  not true  in 38  other                 
       states where they  have capital punishment.   There are                 
       killers in  this state who should plead guilty to First                 
       Degree murder.   They confess to  the police.  It's  on                 
       video tape.   They waived Miranda.   The gun is  there.                 
       There are eye witnesses  to the crime.  And  yet, under                 
       current Alaska  law, there  is simply  no incentive  to                 
       plead guilty to murder and to accept responsibility for                 
       their crime.   There  is nothing  the state  can offer,                 
       nothing we can do.  And so they don't plead.  We have a                 
       trial.  And guess  what?  The trial is  very expensive.                 
       The process is very traumatic to victims and survivors.                 
       And  in   many  cases,   in  which   the  evidence   is                 
       overwhelming, the trial  can become little more  than a                 
       prolonged sentencing proceeding."                                       
  JOHN  LYLE,  FAIRBANKS  testified   via  the  teleconference                 
  network in  opposition to  SSHB 162.   He  acknowledged that                 
  crime has  "gotten out of hand".  He stressed that the death                 
  penalty has not been  proven to be a deterrent.  He asserted                 
  that the  death penalty  is disproportionately used  against                 
  non  whites.     He  maintained   that  the  death   penalty                 
  contradicts  what educators  try to  teach children,  "don't                 
  hit, don't hurt."                                                            
  VIRGINA  PHILLIPS, SITKA  testified  via the  teleconference                 
  network.    She read  written  testimony from  Mary Stoltis,                 
       "The question before  you today is  what is more  cost-                 
       effective?  Keeping someone out of society for the rest                 
       of his/her life, or killing  him/her outright by lethal                 
       injection?  Once  again, we are putting  monetary value                 
       on  human   life..."  (Ms.  Soltis'   complete  written                 
       testimony is on file with the House Finance Committee)                  
  Ms. Phillips testified that she believes the wisest solution                 
  is to give  the person the choice  of life in prison  or the                 
  death penalty.                                                               
  DONALD CABANA, EX-WARDEN, STATE OF MISSISSIPPI testified via                 
  the teleconference  network from  Mississippi.   He stressed                 
  the cost of maintaining  a death row facility.   He asserted                 
  that it is  unwise to house  death row inmates with  general                 
  maximum security prisoners.  He maintained that the state of                 
  Kansas  saved $38  million dollars  in the first  five years                 
  after the death penalty was abolished.   He observed that it                 
  is not cheaper  to execute a prisoner.   He pointed out that                 
  death row prisoners in Mississippi spend  an average of 7 to                 
  seven and a  half years  in prison prior  to execution.   He                 
  stressed  that  it is  cheaper to  house  a prisoner  to the                 
  average age of 75 or 80 years.  He accentuated that there is                 
  a risk that  innocent individuals  will be incarcerated  and                 
  executed.  He referred to the impact on those that run death                 
  row facilities.                                                              
  In response to  a question  by Co-Chair  Larson, Mr.  Cabana                 
  estimated  the  yearly  incarceration  cost  of  Mississippi                 
  maximum  security facilities  at  $12.0  to  $15.0  thousand                 
  dollars per prisoner.                                                        
  MICHAEL  KENNY,  BISHOP,  DIOCESE  OF  JUNEAU  testified  in                 
  opposition to SSHB 162 on  moral, philosophical and personal                 
  grounds.  He  observed the need  to take into account  moral                 
  ramifications.    He   maintained  that  there  are   public                 
  misconceptions  regarding the  death penalty.    He asserted                 
  that there is no evidence to  support that the death penalty                 
  deters   crime.     He  alleged   that  capital   punishment                 
  contributes to the  climate of violence.  He reiterated that                 
  the death penalty cannot  be meted out fairly.   He stressed                 
  that  poor  and minorities  do not  have  the same  means of                 
  defense  as  wealthier individuals.    He  acknowledged that                 
  concerns  about  violence  are  valid.    He  stressed  that                 
  legislators must lead  the state in taking  on measures that                 
  are truly effective in fighting crime.                                       
  Representative Parnell questioned how social justice  can be                 
  met.   Bishop Kenny  replied that  social justice  creates a                 
  climate where  human rights  are  valid and  respected.   He                 
  asserted  that the  death penalty  does not contribute  to a                 
  climate of respected human rights.   He clarified that he is                 
  not opposed to life in prisonment.                                           
  RICHARD  CURTNER,  ATTORNEY,  FAIRBANKS  testified  via  the                 
  teleconference  network  in  opposition  to  SSHB 162.    He                 
  recounted his  experience with death  penalty litigation  in                 
  Ohio.  He observed that death penalty cases are more costly.                 
  He  explained  that   capital  cases  involve   two  defense                 
  attorneys.  He noted  that  there are  typically  50 to  100                 
  pretrial motions.   He  stressed that  any issue  that could                 
  save someone's life  must be explored  and litigated.   More                 
  expert witnesses are employed  including a mitigation expert                 
  to prepare  for possible  sentencing.   Jury selections  are                 
  more  lengthy  as   attorneys  question  personal   opinions                 
  regarding the death penalty.  Trials are more lengthy.  Once                 
  found guilty, a sentencing trial  pursues and can be  longer                 
  than the primary trial.                                                      
  Mr. Curtner  noted that the  state of Ohio  has had  a death                 
  penalty for twelve  years.  There  are 127 persons on  death                 
  row in Ohio.   No prisoner has  been executed in Ohio.   All                 
  Ohio cases are in appeal or pending before the United States                 
  Supreme  Court.     He   suggested  that   there  would   be                 
  constitutional challenges to  SSHB 162.  He  maintained that                 
  any convictions for capital punishment  under SSHB 162 would                 
  be be brought before the United States Supreme Court.                        
  Representative Martin questioned if  the death penalty would                 
  be considered  cruel and  unusual punishment.   Mr.  Curtner                 
  anticipated  that  the  death  penalty  would not  meet  the                 
  state's requirement  for constitutionality based on the fact                 
  that it is cruel and unusual punishment.                                     
  (Tape Change, HFC 94-59, Side 1)                                             
  testified via the  teleconference network  in opposition  to                 
  SSHB  162.   She  noted that  there  are many  Native groups                 
  opposed to SSHB 162.  She  maintained that the death penalty                 
  cannot be evenly applied.  She felt that a racial bias would                 
  effect judgments.  She maintained that  the high cost to the                 
  state would be balanced  on the back  of rural Alaska.   She                 
  suggested that rural  Alaska cannot  afford to have  funding                 
  for necessary programs further neglected.                                    
  Ms.  Martus  noted  the  disproportionately  high number  of                 
  Native victims.  She observed that Native women are four and                 
  a half  times as  likely to die as the result of  a homicide                 
  than a  non  white.   She observed that  even though Natives                 
  constitute a  high  proportion of  victims they  are not  in                 
  favor of the death penalty.                                                  
  Ms. Martus  observed  that  Natives  and  African  Americans                 
  represented 80 percent of those  executed during territorial                 
  times.  She  stressed the  need for long  term solutions  to                 
  address the root of crime.                                                   
  JOHN SHAFFER, SITKA testified via the teleconference network                 
  in  opposition  to SSHB  162.   He  asserted that  the death                 
  penalty cannot be applied evenly to minorities.  He stressed                 
  the need to enhance rehabilitation.                                          
  JUNEAU  reiterated  that the  death  penalty does  not deter                 
  crime and  is expensive  to institute.   He maintained  that                 
  public opinion surveys  indicate that,  while 80 percent  of                 
  the public supports a death  penalty, their support is based                 
  on erroneous information regarding the deterrent quality and                 
  cost of capital  punishment.  He  suggested that the  public                 
  would not favor the  death penalty if they could  be certain                 
  that offenders would  be jailed  for life.   He pointed  out                 
  that the Miami  Herald stated  that the average  cost of  an                 
  execution in Florida is $3.2 million dollars.  He emphasized                 
  that  the murder  rate has  increased  in Florida  and Texas                 
  since these states instituted a death penalty.                               
  Mr. Campbell addressed the issue  of convictions of innocent                 
  persons.   He asked if  it is reasonable  to assume that the                 
  227  persons convicted  out  of 200,000  murder prosecutions                 
  were the most deserving  to die, the ones who  committed the                 
  most   heinous,   brutal  killings.      He  noted   that  a                 
  disproportionate number of those executed  were poor, racial                 
  minorities or  poorly defended  at the  time of  trial.   He                 
  added that nine  were juveniles;  ten were accomplices  (not                 
  convicted of the  actual killing); four were  executed after                 
  their  convictions were upheld  by tie  votes in  the United                 
  States Supreme  Court.   He interjected  that a  significant                 
  number of  those convicted were  thought to be  innocent, by                 
  persons who have studied their cases.                                        
  FRANK SMITH, BARROW testified via the teleconference network                 
  in opposition to  SSHB 162.  He  observed that the state  of                 
  Florida  is contemplating the death  penalty for 14 year old                 
  offenders.  He stressed that 90 percent of death row inmates                 
  were victims  of  severe childhood  abuse and  neglect.   He                 
  suggested that it would  be prudent to spend money  on early                 
  prevention and to address programs  that reduce instances of                 
  childhood abuse and neglect.                                                 
  RONNIE ROSENBERG, FAIRBANKS testified via the teleconference                 
  network in opposition  to SSHB 162.   She asserted that  the                 
  death penalty does not work to deter  heinous violent crime.                 
  She observed that  those that commit  violent crimes do  not                 
  think of the consequences.   She expressed concern with  the                 
  fiscal  cost  associated  with the  institution  of  a death                 
  CHARLES  ROHRBACHER, JUNEAU testified  in opposition to SSHB
  162.  He  stressed that no  criminal justice system can  say                 
  with a hundred  percent certainty  that no innocent  persons                 
  will be executed.   He pointed out that all  other sanctions                 
  allow remedies for wrongful convictions.  There is no remedy                 
  in the  death penalty.   He observed that  approximately 400                 
  persons convicted of  capital crimes  between 1930 and  1992                 
  were later shown to  be innocent.  He emphasized  that these                 
  were persons who never should have  been arrested.  He noted                 
  that 23 innocent persons are believed to have been executed.                 
  He added that 48 death row  inmates have been released since                 
  Mr  Rohrbacher  recounted  his  personal  experience,  as  a                 
  reporter   in  San  Francisco,   with  a   mistaken  capital                 
  conviction.   He noted  that the  person in  question was  a                 
  young Korean boy convicted of a gang murder.  He was  poorly                 
  represented and spoke limited English.  Asian witnesses were                 
  not questioned during the  trial.  The boy was  convicted on                 
  the testimony of  three white tourist.   The case was  later                 
  WILLIAM  FULLER,  ESTER  testified  via  the  teleconference                 
  network in opposition to SSHB 162.   He stressed the adverse                 
  effects of guards assigned to death row facilities.                          
  STATES FEDERAL  GOVERNMENT discussed  the cost of  defending                 
  capital cases.  She  was able to compare recent  cases tried                 
  in Alaska.   She observed that  in a recent case  comprising                 
  five defendants charged with mail bombing defense costs have                 
  totalled $964.0 thousand dollars.  She pointed out that  the                 
  total is incomplete since  trials for two of the  defendants                 
  have  not yet occurred and appeals have not been filed.  She                 
  stressed that every avenue  is examined by the  defense when                 
  the case carries a capital charge.   She estimated that this                 
  capital  trial  in  Alaska  would  average  $377.5  thousand                 
  dollars per defendant.                                                       
  (Tape Change, HFC 94-59, Side 2)                                             
  In response  to a  question by  Representative Sanders,  Ms.                 
  Shaw estimated that a trial  seeking life imprisonment would                 
  cost about half as much as one seeking the death penalty.                    
  JENNY BELL,  EXECUTIVE  DIRECTOR,  AWARE  SHELTER  testified                 
  against  SSHB  162.    She  noted   that  she  is  also  the                 
  Chairperson for Juneau's Minority Community Police Relations                 
  Task  Force which  is  comprised  of  16  minorities.    She                 
  observed  that  there  is a  high  percentage  of minorities                 
  within the Alaska  correctional system.   She noted that  48                 
  percent  are minorities, 32 percent are  Alaska Native.  She                 
  asserted that minorities will suffer  from inequities in the                 
  justice   system,   law   enforcement   system  and   during                 
  incarceration.  She  suggested that funding would  be better                 
  spent  on  law  enforcement  and   child  and  sexual  abuse                 
  programs.  She noted that there is a disproportionate number                 
  of Native enforcement personnel.                                             
  Ms. Bell added that the Alaska Native Brotherhood and Alaska                 
  Native Sisterhood are opposed to the death penalty.                          
  KAREN   HEGYI,   ATTORNEY    BARROW   testified   via    the                 
  teleconference  network  in  opposition to  SSHB  162.   She                 
  emphasized the need to  fund programs in rural Alaska.   She                 
  maintained that programs which  address the law  enforcement                 
  and legal  needs of  rural Alaska  are inadequately  funded.                 
  She  asserted  that  "young  men,  women, and  families  are                 
  falling through the cracks and are not getting the help they                 
  desperately need."  She maintained that the state  of Alaska                 
  cannot afford the death penalty.                                             
  Representative Therriault  questioned if the  appeal process                 
  could be  abbreviated or  accelerated for  persons on  death                 
  ADMINISTRATION answered  that the  appeal process  cannot be                 
  changed due to mandates placed by  the United States Supreme                 
  Court.   He stressed that  defenders must  "turn over  every                 
  stone".  He added that if there is a conviction the defender                 
  must then try to prove  that the death penalty would  not be                 
  an appropriate sanction for the  offender.  He observed that                 
  the process has been reviewed by  the Supreme Court over the                 
  past few  years.   He did  not anticipate  that the  process                 
  would be shortened significantly.                                            
  OF ADMINISTRATION added that state and federal Constitutions                 
  guarantee  safe  guards to  due  process.    He stated  that                 
  national offenders are  now averaging  nine years and  eight                 
  months on  death row,  from time  of conviction  to time  of                 
  execution.  He  stressed that offenders  determined innocent                 
  while  awaiting  execution,  would  have  been  executed  if                 
  appeals   had  not   allowed  additional   evidence   to  be                 
  Representative  Sanders  queried if  capital  trials receive                 
  better   representation.    Mr.   Salemi  assured  him  that                 
  attorneys do the same  excellent job that they can  in every                 
  case.    He explained  that  capital offense  trials require                 
  additional  pretrial and  post  trial  motions and  appeals.                 
  Factors   of  mitigation   must  also  be   established  for                 
  Mr. McGee observed  that a  study of homicide  cases in  Los                 
  Angeles,  California  revealed that  capital  offense trials                 
  average four times as many pretrial  motions.  He added that                 
  jury selection took  six times as long.   He noted that  the                 
  survey   found   that  the   average   homicide  case   runs                 
  approximately 20 trial  days or one  month.  A capital  case                 
  runs approximately 129.9 days or six and a half months.                      
  Representative  Brown  noted  that  individuals  wishing  to                 
  testify  from  Anchorage  were  unable  to testify,  due  to                 
  difficulties with teleconference monitors.                                   
  HB 162 was HELD in Committee for further discussion.                         
  The meeting adjourned at 3:23 p.m.                                           

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