Legislature(1993 - 1994)
02/07/1994 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 7, 1994
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
NONE
COMMITTEE CALENDAR
SENATE BILL NO. 221
"An Act relating to arrest of a person for illegal possession,
consumption, or control of alcohol; and providing for an effective
date."
SENATE BILL NO. 127
"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; and providing for an effective
date."
PREVIOUS SENATE COMMITTEE ACTION
SB 221 - See Health, Education & Social Services minutes dated
1/19/94 and 1/24/94.
SB 127 - See Judiciary minutes dated 11/16/93.
WITNESS REGISTER
Cheri Davis
Alaskans for a Drug Free Youth
P.O. Box 5723
Ketchikan, Alaska 99901
POSITION STATEMENT: Supports SB 221.
Lynda Adams
Alaskans for a Drug Free Youth
P.O. Box 7171
Ketchikan, Alaska 99901
POSITION STATEMENT: Supports SB 221.
C. E. Mallot
Ketchikan Police Department
361 Main Street
Ketchikan, Alaska 99901
POSITION STATEMENT: Supports SB 221.
Margo Knuth, Asst. Attorney General
Criminal Division
Department of Law
Court Building #717
Juneau, Alaska 99811
POSITION STATEMENT: Supports SB 221.
Scott Sterling
900 Susitna Drive
Wasilla, Alaska 99654
POSITION STATEMENT: Opposes SB 127.
Alaska Linck, an Elder
666 10th Avenue
Fairbanks, Alaska 99701
POSITION STATEMENT: Supports SB 127.
Ron Scharns
Box 432
Petersburg, Alaska 99833
POSITION STATEMENT: Opposes SB 127.
Jerry Blank
P.O. Box 710
Valdez, Alaska 99686
POSITION STATEMENT: Supports SB 127.
First Sgt. Crawford
Division of Alaska State Troopers
5700 E. Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Answered questions on SB 127.
Kevin McCoy
1113 N Street
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SB 127.
Mrs. Dorthy Westphal
P.O. Box 288
Sterling, Alaska 99672
POSITION STATEMENT: Supports SB 127.
Marla Adkins
P.O. Box 461
Cordova, Alaska 99574
POSITION STATEMENT: Supports SB 127.
Brant McGee, Director
Office of Public Advocacy
900 W. 5th 3525
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Opposes SB 127.
Mike Walleri, Attorney
Tanana Chiefs Conference
122 1st Ave.
Fairbanks, Alaska 99701
POSITION STATEMENT: Opposes SB 127.
Constance Griffith
2509 4th Avenue
Ketchikan, Alaska 99901
POSITION STATEMENT: Opposes SB 127.
Averil Lerman
308 G Street #218
Anchorage, Alaska 99501
POSITION STATEMENT: Opposes SB 127.
Dick Bogard
HC 1, Box 228
Sterling, Alaska 99672
POSITION STATEMENT: Supports SB 127.
Kim McGee
Anchorage Friends - Quakers
2428 Tudor
Anchorage, Alaska 99517
POSITION STATEMENT: Opposes SB 127.
Dennis Halway
Turnagain United Methodist Church
2372 Loussac Drive
Anchorage, Alaska 99517
POSITION STATEMENT: Opposes SB 127.
ACTION NARRATIVE
TAPE 94-7, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m.
SENATOR TAYLOR introduced SB 221 (ARREST OF MINORS FOR CONSUMING
ALCOHOL) and immediately turned to the Legislative Teleconference
Network in Ketchikan, to hear CHERI DAVIS, representing Alaskans
for a Drug Free Youth.
MS. DAVIS expressed appreciation for SB 221, and she explained the
problems encountered in Ketchikan without the provisions of the
proposed legislation, but using local ordinances. She expressed
concern for the safety of the young people in Ketchikan and urged
the legislature to pass the bill as soon as possible.
LYNDA ADAMS, Executive Director for Alaskans for a Drug Free Youth,
explained, although the City of Ketchikan had an ordinance to help
the problem with minors consuming within the city limits, the
problem has still not been addressed outside the city. She thought
the legislation would tighten up the whole island for minors, and
she submitted additional support from the State Alcohol and Drug
Abuse Advisory Board when it last met in Juneau.
Number 053
LT. CHUCK MALLOT said the Ketchikan Police Department wishes to go
on record in support of SB 221, and he described the consumption of
alcohol by 20% of school age minors in Ketchikan. He quoted from
case law that forbids the arrest of a minor, who appears under the
influence of alcohol. The City of Ketchikan passed an emergency
ordinance to assure the immediate safety of the young people who
have been drinking, however; the ordinance only applies within the
City of Ketchikan. MR. MALLOT urged the passage of SB 221 to
extend this protection to the remainder of the First Judicial
District.
There being no others on the teleconference network to testify,
SENATOR TAYLOR called on MARGO KNUTH, Asst. Attorney General,
Criminal Division, Department of Law, to testify.
Number 116
MS. KNUTH said the Department of Law very much supports the
legislation, and she reviewed the arrest of minors consuming before
the ruling by two judicial officers in the First Judicial District,
which prohibits a warrantless arrest for a minor consuming, unless
the alcohol is consumed in the presence of the officer. She said
the legislation would return the law in the First Judicial District
to protect the young people - instead of walking away from them.
Both SENATOR JACKO and SENATOR LITTLE asked why there was a zero
fiscal note.
MS. KNUTH explained it was happening every where else in the State,
except for the First Judicial District, where it was done until the
last eight or nine months. She suggested that no arrest of minors
consuming during that period might have saved money.
SENATOR JACKO asked if a fiscal note reflected the cost of the
activity.
Number 158
MS. KNUTH said the fiscal note reflected the costs associated with
the legislation, and SENATOR TAYLOR agreed.
SENATOR LITTLE clarified the juvenile arrested for consuming would
be turned over to their parents.
MS. KNUTH explained the legislation does not address what happens
to the minor after the warrantless arrest.
SENATOR TAYLOR didn't think the parents intended, or society would
support, an officer finding an obviously intoxicated young person
on the street at night, the officer would issue a ticket, and walk
away. He said this was happening in the First Judicial District.
MS. KNUTH expressed her appreciation to the people of Ketchikan and
Alaskans for a Drug Free Youth for their involvement in the alcohol
problem, instead of just concentrating on the hard drugs. SENATOR
TAYLOR added his appreciation, also.
SENATOR JACKO moved to pass SENATE BILL NO. 221 from committee with
individual recommendations and the accompanying fiscal note.
Without objections, so ordered.
SENATOR TAYLOR returned SB 127 (CAPITAL PUNISHMENT FOR MURDER) to
committee and indicated there were several sites, Anchorage,
Fairbanks, Ketchikan, Petersburg, Valdez, Cordova, and one OFFNET
site, signed up to testify on the Legislative Teleconference
Network.
Number 196
SENATOR TAYLOR said it was his intention to present a committee
substitute to the committee, that may reflect a compromise position
between the existing legislation and concerns that have been
expressed in a previous meeting. He explained everything had been
deleted except for the advisory vote in the committee substitute.
SENATOR TAYLOR clarified the committee substitute for SENATOR
LITTLE and explained he was presenting the bill in this way,
because he thought there was concern among the people of Alaska as
to whether they truly wanted capital punishment. He asked for a
sense of the committee before the bill was put forward.
SENATOR JACKO explained he didn't support the legislation, because
it represented a racial bias to his constituents. He also
expressed concern for the high cost of capital punishment.
SENATOR TAYLOR defended the bill saying it would just allowing a
vote.
SENATOR HALFORD moved to adopt the new committee substitute for
SENATE BILL NO. 127(JUD).
SENATOR DONLEY objected for purposes of questioning the bill.
SENATOR LITTLE expressed her concern for both the changes in both
the title and the body of the bill, and she clarified it was
allowable to make such a substantial change in the legislation.
Number 250
SENATOR DONLEY explained it was allowable to be entirely changed
back in another committee or during floor action, too. He said he
supported a more narrowly tailored death penalty for first degree
murder, and he noted he had written the provision for 99 years
without parole for three specific types of heinous crimes.
SENATOR DONLEY said he was willing to go to the death penalty for
those three categories of murder, but he felt the Judiciary
Committee should be the committee to address the substantive issue
other than just the advisory vote in the committee. He thought the
committee should be considering the constitutional ramifications,
because previous testimony had raised serious constitutional
questions. He continued to explain his reasons for considering
some of these questions in the Judiciary Committee, where there
should be research and debate in a committee format.
SENATOR TAYLOR agreed in some respects with SENATOR DONLEY'S
reasons.
SENATOR JACKO posed another objection, that by not dealing with the
specifics of the death penalty included in the legislation brought
through the legislative process, he felt the position of his
constituents would not be represented in a statewide vote. He
thought the side with the most money to present their side of the
argument would carry the death penalty in a state wide vote.
SENATOR TAYLOR asked if there were further objections to the
adoption of the committee substitute, or whether the members
preferred to discuss the bill and talk about the death penalty in
general.
SENATOR DONLEY suggested the function of the Judiciary Committee
was to educate about the State constitutional questions presented
by a death penalty. He explained the Alaska Supreme Court had
addressed the issue indicia a few years ago, and he wanted to know
if there was any legal scholar review or any comparable state
constitutional provisions.
SENATOR DONLEY said he hated to see the legislature go through the
exercise of passing a death penalty law if it is subsequently going
to be struck down by the court. He thought it might also be very
expensive.
Number 300
SENATOR TAYLOR agreed, but explained his reasons for trying to get
an agreement on the bill in committee.
SENATOR HALFORD expressed support for the original bill, but he
would support the advisory vote if it would be the only one to get
to the floor. SENATOR TAYLOR explained his reasons for wanting to
expedite the bill, and SENATOR JACKO said it had a chilling effect
on him.
SENATOR DONLEY talked about the uncertainty of the bill as far as
education on the constitutional issues before being faced with the
decision of voting on the legislation. He thought the Judiciary
Committee was an open forum for a productive session on the
original legislation.
SENATOR TAYLOR expressed his concern as chair after hearing the
lack of consensus in the House, and suggested it didn't bode well
for spending a great deal of time in the Senate, only to see it die
in the House. He thought it better to focus on the central issue
to let the people in Alaska tell the legislature what they wanted,
and he reviewed the constitutional hurdles it would face. He
explained no major changes would be made in the committee
substitute, unless it was returned to the Judiciary Committee.
SENATOR LITTLE said she would prefer to have more time to think
about the changes and said she would be voting "no" just because
she needed additional time.
Number 350
SENATOR TAYLOR called for a vote on SENATOR HALFORD'S move to adopt
the new committee substitute for SENATE BILL NO. 127(JUD). The
roll was taken with the following results: SENATORS TAYLOR,
HALFORD, and DONLEY voted "Yea," and SENATORS LITTLE and JACKO
voted "Nay." SENATOR TAYLOR stated the motion carried.
For the benefit of those on the teleconference network, SENATOR
TAYLOR reviewed the committee substitute which would allow an
advisory vote on capital punishment. He urged the people to
testify on the substance of the bill.
SENATOR DONLEY hoped people would be allowed to testify on either
version, and SENATOR TAYLOR said there would be no limits.
Since the room was filled with students, SENATOR LITTLE explained
what had happened to the legislation to them.
SENATOR DONLEY further explained the committee substitute was
before the committee for discussion, but has not been passed from
committee.
SENATOR TAYLOR explained he would rotate through the sites to
invite the witnesses to testify.
SCOTT STERLING, Anchorage, said he was repeating the same testimony
he gave to the House Judiciary Committee. He was testifying in
opposition to the legislation because he thought it was (1)
hypocritical to punish heinous crimes by means of a heinous crime,
(2) research has not proven capital punishment as a deterrent, and
(3) once inflicted, the death penalty is irreversible.
Number 401
MR. STERLING'S fourth reason was the administration of capital
punishment in law and practice is inconsistent with those who say
it is based on a retribution theory. If the law would follow the
retribution theory, it would mean punishment by death for all
people convicted of premeditated murder, but would punish no other
crime in that manner. He explained both the House and Senate bills
had been justified on a theory of retribution, yet, it would permit
a jury to distinguish between crimes and victim. Some people would
get the death penalty and some wouldn't.
MR. STERLING said the Eighth Amendment, Section 12 of the Alaska
State Constitution forbids the retribution logic. His fifth reason
dealt with research on who receives the death penalty which shows
the penalty is not applied in proportion to the seriousness of the
crime. He claimed death was imposed on a randomly selected sub-set
of those convicted of capital offenses. Prosecutorial discretion
in charging and plea bargaining virtually assures this randomness.
MR. STERLING explained, before any death penalty bill is
considered, the Department of Law should check the effects of
racism, the appointment of inadequate defense counsel, and bias in
the jury selection. He suggested legislators who represent Alaska
Native constituencies should pay particular attention to these
factors.
For number six, MR. STERLING said, murders as a class, show a lower
recidivism rate for their crimes, than do most classes of felons.
He said there was no evidence that the death penalty, as opposed to
long term imprisonment, is an effective deterrent.
In summary, MR. STERLING suggested the legislators concentrate the
limited resources of the state on attacking the root causes of
crime in Alaska and avoid the quagmires the death penalty would
create.
SENATOR TAYLOR suggested that anyone testifying on the bill, who
feels as MR. STERLING does, should not repeat the comments since
there is limited time. He praised MR. STERLING for his well stated
testimony.
SENATOR TAYLOR asked participants to limit their testimony to three
or four minutes and written comments be sent to Juneau, where they
will be distributed to each member and become part of the official
record.
Number 451
SENATOR DONLEY questioned MR. STERLING on the constitutional clause
dealing with reformation and asked for a copy of his information.
He extended his request to all participants with constitutional
information and back up to send it to him.
SENATOR JACKO referred to MR. STERLING'S testimony on racial bias
and asked for any specifics he might have.
MR. STERLING said his reference was to a study conducted by the
NAACP on sentencing patterns in the State of Georgia, analyzing all
felony convictions, which showed conclusively there was both overt
and insidious racial discrimination in sentencing patterns. He
suggested there were similar studies under way now, and one should
be done in Alaska. He urged caution in securing the data on
minority sentencing in Alaska.
ALASKA LINCK introduced herself as an Elder, raised in Alaska and
lived in Fairbanks for more than 68 years and has served in the
Territorial Legislature. She described herself as being solidly
behind the death penalty, saying she saw no value in supporting
someone who committed a heinous crime for life at tax payers
expense. She didn't think that such a person would ever be useful
to society, and she didn't think it was cheaper to keep a person in
prison for life rather than death.
MS. LINCK explained why she thought it was cheaper to use lethal
injection rather than the expense of hanging. She said Alaska was
unique and shouldn't copy other states. She blamed the effects of
children who were raised in the 1960's with no home training and
suggested children should be raised by loving parents.
Number 505
RON SCHARNS, a commercial fisherman from Petersburg with a degree
in psychology, has worked with emotionally handicapped youth in
special services. He explained the problems parents have in
working and raising children, with the nuclear family eradicated in
the name of profit. He said TV has become a surrogate parent
teaching violence and consumerism, but denies them education and
gainful employment necessary to become honest producers in our
society.
MR. SCHARNS listed what he considered a decaying and dysfunctional
society for the increased number of young criminals, and he called
capital punishment legalized killing, but not a deterrent.
In Valdez, JERRY BLANK testified in support of both the House and
Senate bills, but was more in favor of the House bill.
Testifying OFFNET from Anchorage was First Sgt. Crawford who was in
favor of SB 127, and offered to answer questions.
Number 557
Back to Anchorage, KEVIN MCCOY explained he has been a practicing
attorney for the past eighteen years, presently a criminal defense
attorney and formerly an attorney general prosecuting consumer
fraud. He felt his experience as a lawyer in Alaska has given him
some insight into our criminal justice system, and he explained
there was a great deal of misinformation about the death penalty in
both the bill and the advisory vote in the committee substitute.
MR. MCCOY wanted to correct the misunderstanding that the bill is
necessary to protect the public either because the sentencing laws
and judges are too lenient. He explained sentences for first
degree murder in Alaska are some of the toughest in the nation. He
claimed Alaskan judges do not hesitate to impose severe sentences
on persons convicted of such crimes with a maximum term of 99 years
and a minimum sentence of not less than 20 years. He continued to
describe the harshness of sentences in Alaska and referred to
SENATOR DONLEY'S remarks on mandatory sentences.
MR. MCCOY said many people in Alaska feel persons convicted of
first degree murder are released after serving as little as seven
years, but he said it was absolutely not true, and he named well
known cases of convicted murders who will die in prison because of
very long sentences.
TAPE 94-7, SIDE B
Number 001
MR. MCCOY continued to list convicted murders who will die in
prison before they are eligible for parole. He contended the
Alaska judges have never hesitated to use their power to protect
the public, and these sentences have never been reversed by the
Court of Appeals or the Alaska Supreme Court. He said the death
penalty would only waste money and make us just like the killers we
despise. He strongly urged the committee to reject SB 127 and the
committee substitute.
SENATOR TAYLOR called on DORTHY WESTPHAL in the Kenai/Soldotna
teleconference site.
MRS. WESTPHAL explained she had lived in Alaska for 32 years. She
referred to the prohibition days when there was kidnapping, with
no penalty. She described the Lindberg kidnapping, and said they
passed a law that kidnapping was a capital offense, punishable by
execution. MRS. WESTPHAL said kidnapping almost came to a stop,
and she suggested the committee do some research. She thought the
courts allow too many appeals, and the lawyers in the legislature
should stop the appeals for going on so long.
MS. WESTPHAL thought an advisory vote would only prolong the delay
in the executions, but she did object to hanging in preference to
the lethal injection. She claimed capital punishment was a
deterrent, and she thought it should be done.
SENATOR DONLEY pointed out there were only three practicing
attorneys of the 60 members of the legislature.
Number 056
MARLA ADKINS from Cordova said she has been in Alaska since 1959
and has watched the crime rate in recent years escalate rapidly.
She said the judicial system was over taxed, and their hands are
tied, but she didn't think the issue of money was viable. She
asked for the cost put on a human life taken by a heinous murderer,
and she thought the death penalty should be a deterrent to those
convicted of murder.
MS. ADKINS thought the murderer should have the best counsel
possible, and not a green attorney. She believed the biblical
adage of "an eye for an eye, ..." fits the bill and felt lethal
injection was the way to go.
In response to a comment by MS. ADKINS, SENATOR TAYLOR said the
fiscal notes coming out of the Division of Corrections would
indicate, if we were to impose a capital punishment bill in this
State, the probable savings on individuals executed could be as
high as $50 million, over what is projected to be spent over the
next 20 years. He said the cost of keeping prisoners forever has
gotten even higher than going through ten years or so of defense
and legal fees.
Number 100
SENATOR JACKO questioned whether the fiscal notes included
prosecution or just the cost savings of killing these people vs
keeping them in jail. SENATOR TAYLOR said it included the entire
process, and he supported the concept. He said that because some
are youthful offenders and people are living longer, incarceration
has become more expensive.
SENATOR JACKO noted any of the fiscal notes are a "guess," and
SENATOR TAYLOR agreed.
SENATOR TAYLOR returned to Anchorage to hear from BRANT MCGEE,
Director for the Office of Public Advocacy.
MR. MCGEE said he has been a student of cost for the last eight
years, and has gathered information from studies on which his
testimony is based. In none of his studies did MR. MCGEE find any
indication it is cheaper to execute people, after the capital
punishment process, than it is to maintain the offenders in prison
for the remainder of their lives.
MR. MCGEE reviewed a 1982 study in New York which revealed the
costs of the death penalty in that state would amount to $1.8
million per case, through trial and through the first three levels
of appeal. At that time in New York, incarceration for 40 years
would cost $600 thousand.
MR. MCGEE said in 1992 in Texas the capital punishment cases were
found to cost $2.3 million per case as opposed to $750 thousand for
40 years of incarceration. In Florida it was estimated each
capital punishment case cost $3.2 million, and most recently in Los
Angeles County, California, cases cost $1.9 million. He explained
the reason was because six times as many motions were filed in
capital punishment cases, involving twice as many lawyers, and
required one month in jury selection for such cases as opposed to
3.5 days for in non-capital first degree murders. Trial time in
capital cases was 6.5 months as opposed to less than one month for
a non-capital case.
MR. MCGEE said, in 1988, it was estimated in California the death
penalty costs were reaching $90 million per year. He explained
California has had the death penalty for nine years, has over 300
people on death row, and has executed one person, after accumulated
costs of over $1 billion.
In our own State, MR. MCGEE explained, for prosecution and defense,
the amount would be $18 million after four years. He also said
this would be a misleading number, because the cases would
accumulate, and according to the Department of Law there will be
six capital cases litigated each year for a minimum of ten years.
MR. MCGEE explained he used ten years, because between the time of
conviction and the time of execution, in other jurisdictions
nationally, the average is nine years eight months. He concluded
the costs would rise exponentially with each passing year because
of the accumulation of cases. In no cases, has either he or
Legislative Affairs Agency been able to locate any study which
indicated it was cheaper to execute people than it was to
incarcerate them.
Number 138
SENATOR TAYLOR questioned the percent of cases in Alaska in which
the offender would plead out as opposed to going to trial if they
were faced with the choice of whether they would have to go for a
death penalty. He also challenged the amount MR. MCGEE projected
for the cost of incarceration, and suggested there should be some
credits developed in the process.
MR. MCGEE thought all of the costs associated with both the death
penalty and incarceration would be more than the figures he gave,
just because it would be more expensive in Alaska. He said it now
costs $41 thousand, on average, to incarcerate an Alaskan prisoner,
and he projected those costs of incarceration before the death
penalty would accumulate to over $400 thousand. He discussed the
other accumulated cost of the death penalty, and projected a cost
of $1.6 million per case in this State.
MR. MCGEE quoted, with respect to the cost savings associated with
plea bargaining death penalty cases, the Department of Law has said
they would prosecute six carefully selected cases each year, those
with one or more aggravating factors. He said the department is
not talking about plea bargaining any of the cases, but if they
did, it would raise questions regarding the ethics, the fairness,
the legality, and the constitutionality of using the threat of
death as a bargaining chip in criminal litigation.
MR. MCGEE said they would be open to collateral attacks on the
charging decisions, which would mean there would have to be a pre-
trial examination of every first degree murder case and every
capital case, calling into question all of the death penalty cases.
MR. MCGEE reminded the legislators this would be an untested
statute vs a statute that has withstood attacks over a long period
of time, and he described the problems that would be involved
during the first decade after the passage of the bill.
SENATOR JACKO questioned the pleading out process, and SENATOR
TAYLOR said the defendant would know in the charging process.
SENATOR JACKO asked how it was determined and would it be set forth
in the legislation.
SENATOR TAYLOR said the defendant had to be notified of the
charges, and he quoted MR. MCGEE on the plea bargaining. SENATOR
TAYLOR thought there would be a significant savings, and he
suggested a person with a death penalty over their head, was more
interested in pleading out to something that is not going to take
their life. He claimed it was common practice and explained how it
was done.
Number 210
SENATOR JACKO suggested it was heavy duty bribery, and SENATOR
TAYLOR reiterated it gets the job done. He said it would reduce
the credibility of testimony if plea bargaining was not addressed.
SENATOR TAYLOR announced he would next hear testimony from MIKE
WALLERI from Fairbanks before going to Ketchikan.
MR. WALLERI, General Counsel for Tanana Chiefs Conference, said he
had prepared comments on the original bill, but has not seen the
committee substitute. He explained the general thrust of the
position taken by the Tanana Chiefs was a profound concern over the
racial discrimination the death penalty has had in other states,
and the likelihood of a similar effect here in Alaska.
MR. WALLERI gave the inmate population in Alaska as fluctuating
between 32 and 38 percent Native, and a review of the death penalty
in other states suggests a close correlation between the racial
break down in rates of incarceration and the execution rates. He
expressed concern that if the bill is passed there would be a
similar discriminatory effect in Alaska, estimating that Native
people will be executed approximately twice the rate of their
general representation in the general population, between 32 and
38%.
SENATOR TAYLOR asked if MR. WALLERI thought it was racial bias in
his opinion or if the Natives were committing that many more
offenses.
MR. WALLERI quoted a study through the University of Alaska which
suggests the higher rate of Native incarceration has to do with
certain Native values respecting confession, and that Natives will
confess to crimes at a much higher rate than Non-natives.
Number 280
MR. WALLERI explained the Natives see this as more culturally
appropriate and part of their acceptance of responsibility, which
has a high value within the Native population. He explained these
traits did not translate easily into the Alaska Criminal Justice
System, where confession does not carry any mitigating aspects.
MR. WALLERI addressed notice provision for the death penalty which
does not appear in the original bill until after the conviction,
and he contrasted the provision to the original House bill. He
described the problems of Natives confessing to the crime before
being presented with the possibility of facing the death penalty.
He explained the use of alcohol in a jury trial is seen as a
mitigating factor when non-natives are involved, but that is not
true in cases involving Natives.
MR. WALLERI said the more suggestive tests that are in the bill,
the more subjective calls the jury is required to make, which
increases the probability of racial discrimination. He explained
the vote in the committee substitute was misleading, since he
thought, although people might support the death penalty, they
might not support a racially biased system. He suggested the
committee commission a serious study on the racial impact of death
sentencing.
SENATOR TAYLOR described the committee substitute as being just
Section 13 on page 10.
In Ketchikan, CONSTANCE GRIFFITH, a 47.5 year resident of Alaska,
testified in agreement with MR. STERLING, MR. SCHARNS, MR. MCCOY,
and MR. WALLERI. She quoted a discussion with her child on the
agreement the death penalty was retribution and didn't prevent
murder. She pointed to comments from SENATOR JACKO that the death
penalty would not prevent murder or suicide in the villages,
because there are people in Alaska with the illness of alcohol.
MS. GRIFFITH quoted a solution from her son that people should have
a license to buy alcohol, and she described how it would work as a
deterrent. She thought the efforts should be placed on alcohol
programs that build family strength through education. She did not
think the death penalty would deter murder, and she questioned the
statistics of those who thought it would.
Number 340
SENATOR TAYLOR quoted some of the remarks from MS. WESTPHAL from
Sterling that it deterred kidnapping.
MS. GRIFFITH did not think the death penalty should apply to
alcohol related violence in Alaska, since some people under the
influence of alcohol have no memory of the incident. She described
a case which put a young man in A.P.I. for life, but he has no
memory of his violence. She reiterated her support for a license
to drink.
SENATOR TAYLOR returned to Anchorage, to hear from AVERIL LERMAN.
MS. LERMAN testified against the death penalty, which she backed up
with the history of the death penalty in Alaska, which she has
researched. She said the history strongly supports the position
taken by MR. WALLERI, the General Counsel for the Tanana Chief's
Conference and others regarding the government's role in racial
discrimination.
Number 385
MS. LERMAN explained that since 1900 there have been eight people
known to have been hanged in Alaska. The first two of those,
executed before 1903 were both white, but after 1903 and before
1957, every person who was executed in the State of Alaska was non-
white. MS LERMAN quoted from the book, A DIFFERENT FRONTIER, which
analyzed data from 1935 to 1955 and established that 75% of all the
homicides during that time had been committed by white people. She
said, during that time, not one white person was hanged, but three
non-white persons were hanged.
Number 385
MS. LERMAN explained the first three people to be executed were
hanged in Fairbanks between 1911 and 1935, one was listed as a
black fellow from Montenegro, and the other two were both Natives.
The second group of three people were hanged in Juneau, one was a
Native and two were black people.
MS. LERMAN thought she would find these were people who committed
heinous murders, but this was not the case. The homicides, for
which these men were hanged, were in general a murder undertaken in
passion, frequently by a single inebriated individual on another
inebriated person. It was written the murderer was repentant after
the fact.
MS. LERMAN described her research as reading old newspaper articles
in a library and old court files in the National Archives, as well
as reading histories of Alaska. The fact was established that of
the men who were hanged, the Natives, without exception, received
no appeal for their conviction, notwithstanding the fact they had
very strong grounds in claiming their conviction had been unjust.
In answer to a question earlier on the manifestation of the
prejudice, MS. LERMAN explained executive clemency was not uncommon
during this time, and, although white people were sentenced to die
in Alaska, their sentences were commuted. These were people for
whom there was some sympathy, and MS. LERMAN said her suspicion was
that people from little villages, who lacked any kind of political
or financial influence, were not given any sympathy from the
governor or the president of the United States.
Number 436
SENATOR TAYLOR asked how many Native people were hanged, how many
black people were hanged, and how many white people were hanged.
MS. LERMAN said there were two white people hanged, one in 1901 and
one in 1902. Three Alaska Natives were hanged and three black
people were hanged. SENATOR TAYLOR said the black people were way
out of proportion as far as their racial makeup.
MS. LERMAN said, at the time the hangings occurred, the black
people were from Juneau, where the black population was less than
2%. She explained that both of the black men were hanged for one
homicide which was committed by one of them, and she said the
evidence indicates clearly that the last man hanged, EUGENE LAMOUR,
was hanged for the murder as an accomplice.
MS. LERMAN said we need to hold a mirror up to ourselves and ask if
we have changed from the people we were. She suggested by looking
at the rest of the United States and finding out what is happening
nationally, we will see that who we were is still who we are.
MS. LERMAN explained of all those executed from 1930 to the present
time, 53% have been black, and at the present time, a third of the
people in Alaskan prisons are Native. She suggested an advisory
vote, when uninformed, is nothing but a political tool. She said,
if the legislature was serious about an advisory vote, there should
be a fiscal note on the bill for the purpose of educating the
public on both sides of the question. Once the education has been
completed, there could be a vote.
SENATOR TAYLOR thanked MS. LERMAN for her research and asked if she
had done research in other states on the same subject, the death
penalty. She replied that she had been doing nothing but research
since she learned of the bill.
SENATOR TAYLOR asked if she would share her research with the
committee, and he asked how California lost their death penalty,
how they brought it back, and why. How did other states lose the
penalty, and why has it been brought back in those other states.
Number 481
MS. LERMAN said those were very good questions, and she thought the
answer could be found closer at home. She explained Alaska had a
death penalty and the Territorial Legislature voted it out with
very little objection in 1957, prior to Statehood. She thought
those were the same questions we could ask ourselves now.
SENATOR TAYLOR wanted to know why any civilized society would want
to bring back the death penalty, and MS. LERMAN said there has been
many times when people take action without benefit of careful
examination.
Number 481
MS. LERMAN suggested a vote for the death penalty is in general
supported by either political or emotion rational, and if a person
thinks an emotional reason is a good one, a vote is well taken.
She also suggested a rational person, who carefully evaluates
everything that is known today, will have to conclude there are not
good reasons for it - other than emotional or political.
SENATOR TAYLOR thanked MS. LERMAN for her answer, before turning to
the Kenai/Soldotna network to hear DICK BOGARD in Soldotna.
MR. BOGARD said he has been in the Territory and State since 1939.
He suggested some of those testifying were stretching the truth on
the sentencing of long terms, and he referred to a case in
Anchorage in which three elderly people were robbed and murdered.
He said the sentence of two of the murderers were reduced to 42 and
47 years, and they will probably be up for parole shortly.
MR. BOGARD explained his oldest daughter and her fiancee were
brutally murdered four years ago. The person who admitted to the
murder got a maximum of 20 years and can be paroled. He said this
case was not in the State of Alaska.
MR. BOGARD took up the problem of cost, and said, "Cost be dammed!"
He felt those being paroled would come out of jail and kill again,
and he deplored what he considered "a dollar and cents world we
live in today."
MR. BOGARD referred to the Westphal testimony on the Lindberg Law,
and the Republican Convention about that time when the police were
directed to shoot to kill at some rioters, and this prevented the
riots. He blamed those with a vested interest in placating their
pocket books and not prosecuting criminals.
MR. BOGARD thought the bill was poorly worded, and he pointed to
page 3, Section 6, and said the lives of the people listed were no
more important than anyone else. He said he would make a written
report on changes to the bill ....
TAPE 94-8, SIDE A
Number 001
MR. BOGARD reviewed the crime on the train in New York, and said
there should a limit to appeals, which he said was a legislative
problem - not a citizen's problem.
SENATOR TAYLOR returned to Anchorage to hear from KIM MCGEE, who
testified for the Anchorage Friends Meeting - Quakers.
MS. MCGEE read a brief summary from the Central Alaska Friends
Conference on the issue of capital punishment, in which they
confirmed the value and dignity of human life, and opposed the
death penalty for this reason. They consider it a step backwards
in the administration of justice as an arbitrary, ineffective, and
uneconomic form of law enforcement.
MS. MCGEE asked the Judiciary Committee to reject the legislation
for the following three reasons: taking life devalues life for all
who share its gifts; once taken it cannot be restored; and taking
a life does not right a wrong, no matter how grievous the incident.
She said it was the duty of government, on behalf of the better
nature of the citizens, to substitute reason for passion, and
justice for revenge.
Number 054
MS. MCGEE said we live in an imperfect society with an imperfect
legal system, and when the legal system assumes the power to take
life, it attempts to disguise the imperfections of human decisions
and human frailties.
MS. MCGEE quoted the Central Alaska Friends Conference as
recognizing the difficult decisions which the committee, the
legislature, and the State of Alaska face in dealing with the wrong
doers, but they thought it minor compared to dealing with the
execution of real individuals. She charged the law makers with
preserving justice, and urged the committee to look at those
factors which cause and promote violence. She felt the proper role
of government was to alleviate the roots of violence and asked the
legislation be tabled.
SENATOR TAYLOR returned to Kenai for someone who was not present,
but MR. BOGARD was there and asked to add to the testimony. He
railed against what he considered short sentences in Alaska for
murderers.
Number 093
SENATOR TAYLOR suggested to MR. BOGARD that most people committing
a homicide offense spend a lengthy stay in Alaska prisons, but he
said the committee has not talked about those who are convicted of
a second degree offense.
MR. BOGARD agreed and talked about the statistics on murders who
serve a short time, get out, and kill again.
SENATOR TAYLOR said he would take one more witness from Anchorage,
which was DENNIS HOLWAY, an ordained United Methodist Minister,
lived in Alaska since 1977, and a pastor at the Turnagain United
Methodist Church since 1990.
PASTOR HOLWAY thought it was unfortunate this issue had not rallied
the clergy around a common voice; however, within his denomination
the general conference representing 8.5 million members has clearly
spoken on the issue.
PASTOR HOLWAY explained there was a divergence of opinion on the
death penalty, so he chose to give his reasons for feeling capital
punishment as an unwise and unjust alternative. He explained his
decisions were made on what he believed JESUS would feel and say
about capital punishment.
PASTOR HOLWAY believed JESUS would be opposed to capital
punishment, and he drew his conclusions from the following reasons:
First, much of JESUS'S ministry is aimed at compassion, and concern
for the poor and oppressed. JESUS would oppose capital punishment
because of its bias toward the poor and uneducated, would see the
inequity of the criminal system and oppose the disproportionate
amount of capital punishment against people of color, especially
African-Americans and Alaska Natives.
Secondly, PASTOR HOLWAY said JESUS demonstrated his anger when he
drove the money changers from the temple, and he explained the
anger was triggered by people who were not only cheating their
neighbors, but doing it in the midst of a sacred place. He thought
JESUS would be incensed at those who murder another human being,
but he didn't believe JESUS would advocate any irreversible
retaliation such as capital punishment. He believed JESUS would
use his healing words and touch to heal the victim's family as well
as the convicted murderer and his/her family.
Third, PASTOR HOLWAY thought JESUS would advocate for restitution
rather than retribution, and would understand how the family of the
murder victim would feel capital punishment in no way would
compensate for their loss. He thought restitution could become one
small way of restoring a sense of healing, dignity, and equilibrium
to both the victim's family and to the perpetrator.
PASTOR HOLWAY reiterated his opposition to capital punishment on
theological, moral grounds, and financial reasons. He thought
there were other options that were more humane and just.
Number 158
SENATOR TAYLOR thanked all those who testified, and in conclusion
he invited people to submit their comments. He said there would be
time to do this, as the bill will not move from committee for
awhile. He said there would be an additional hearing on the bill,
and copies of the committee substitute would be distributed to all
of the LIO'S. SENATOR TAYLOR also thanked committee members,
SENATORS LITTLE, DONLEY, AND JACKO, for sitting through such a long
meeting.
There being no further business to come before the committee, the
meeting was adjourned at 3:20 p.m. by SENATOR TAYLOR.
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