Legislature(1993 - 1994)
11/16/1993 09:00 AM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
JOINT SENATE AND HOUSE JUDICIARY COMMITTEE November 16, 1993 9:00 a.m. SENATE MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Suzanne Little SENATE MEMBERS ABSENT Senator George Jacko HOUSE MEMBERS PRESENT Representative Brian Porter, Chairman Representative Jeannette James, Vice-Chairman Representative Gail Phillips Representative Pete Kott Representative Joe Green Representative Jim Nordlund Representative Cliff Davidson (participated via teleconference from Kodiak) HOUSE MEMBERS ABSENT Representative John Davies OTHERS PRESENT Representative Con Bunde Representative Ed Willis Representative Jerry Sanders COMMITTEE CALENDAR HOUSE JOINT RESOLUTION NO. 43 Proposed an amendment to the Constitution of the State of Alaska relating to penal administration. 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." 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 HJR 43 - No previous action to record. HB 162 - No previous action to record. SB 127 - No previous action to record. WITNESS REGISTER Deborah Ivy, Attorney Victims for Justice 1007 W. Third, #400 Anchorage, Alaska 99801 POSITION STATEMENT: Supported HJR 43. Linda Akers, Deputy Director of Crime Strike for the NRA 2600 N. Central Street Phoenix, Arizona 85025 POSITION STATEMENT: Supported HJR 43. William F. Dewey, Attorney 1150 P Street Anchorage, Alaska 99501 POSITION STATEMENT: Proposed changes to HJR 43. Elizabeth Bellinghiri, Staff Representative Jerry Sanders State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Testified on HB 162. Jerry Luckhaupt, Attorney Legislative Legal Counsel 130 Seward Street, #401 Juneau, Alaska 99801 POSITION STATEMENT: Drafted HB 162 and SB 127. Edward E. McNally, District Attorney Third Judicial District 1031 W. 4th, Suite 520 Anchorage, Alaska 99501-1975 POSITION STATEMENT: Supported HB 162 and SB 127. John Salemi, Director Public Defender Agency 900 W. 5th, Suite 200 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Opposed HB 162 and SB 127. Brant McGee, Director Office of Public Advocacy 900 W. 5th, Suite 525 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Opposed HB 162 and SB 127. Sharon Nahorney 619 E. 5th Anchorage, Alaska 99501 POSITION STATEMENT: Supported HB 162 and SB 127. Ted Lemaire 701 Birch Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 162 and SB 127. Donna Dinsmore Poff Anchorage LIO POSITION STATEMENT: Supported HB 162 and SB 127. Jonathan Katcher, Attorney 912 W. 6th Ave. Anchorage, Alaska 99501 POSITION STATEMENT: Opposed HB 162 and SB 127. Michelle Kerr Anchorage LIO POSITION STATEMENT: Supported HB 162 and SB 127. John Farleigh 1319 H Street Anchorage, Alaska 99501 POSITION STATEMENT: Opposed HB 162 and SB 127. Randall Burns American Civil Liberties Union P.O. Box 201844 Anchorage, Alaska 66520 POSITION STATEMENT: Opposed HB 162 and SB 127. Hugh Fleischer, Attorney 1401 W. 11th Ave. Anchorage, Alaska 99501 POSITION STATEMENT: Opposed to HB 162 and SB 127. Terry Burrell 3716 Wesley Ave. Anchorage, Alaska 99508 POSITION STATEMENT: Supported HB 162 and SB 127. John Havelock former Alaska Attorney General 604 W. 4th Ave., Suite 21 Anchorage, AK 99501 POSITION STATEMENT: Opposed HB 162 and SB 127. Marie Josie Jones 9499 Brayton Drive, Lot 41 Anchorage, AK 99507 POSITION STATEMENT: Opposed HB 162 and SB 127. Allan Barnes UAA Justice Center 3211 Providence Drive Anchorage, Alaska 99508 POSITION STATEMENT: Testified on HB 162 and SB 127. Diane Schenker Department of Corrections 2200 E. 42nd Ave. Anchorage, Alaska 99508 POSITION STATEMENT: Discussed fiscal note for Corrections. Kathy Kainer 311 Melody Place, Apt. A Anchorage, Alaska 99504 POSITION STATEMENT: Opposed HB 162 and SB 127. Jack Keane 2152 Dawson Street Anchorage Alaska 99503 POSITION STATEMENT: Opposed HB 162 and SB 127. Lisa Rieger, Attorney UAA Justice Center 3211 Providence Drive Anchorage, Alaska 99508 POSITION STATEMENT: Opposed HB 162 and SB 127. Frank Cahill 2303 Tulik Drive Anchorage, Alaska 99517 POSITION STATEMENT: Opposed HB 162 and SB 127. Arthur E. Curtis 605 Sitka, # 203 Anchorage, Alaska 99501 POSITION STATEMENT: Opposed HB 162 and SB 127. Dr. David Dolese 2517 Foraker Drive Anchorage, Alaska 99517 POSITION STATEMENT: Opposed HB 162 and SB 127. Ron Dailey 7841 Port Orford Drive Anchorage, AK 99516 POSITION STATEMENT: Opposed HB 162 and SB 127. Charles E. McKee 1800 DeBarr Road, # 63 Anchorage, Alaska 99504 POSITION STATEMENT: Opposed HB 162 and SB 127. Constance Griffity Sitka, Alaska POSITION STATEMENT: Opposed HB 162 and SB 127. Liz Dodd 100 Parks Street Juneau, Alaska 99801 POSITION STATEMENT: Opposed HB 162 and SB 127. Ron Reed 112 Behrends Ave. Juneau, Alaska 99801 POSITION STATEMENT: Opposed HB 162 and SB 127. Bill Glude Box 22316 Juneau, Alaska 99802 POSITION STATEMENT: Opposed HB 162 and SB 127. Amy Paige 592 Satter Street Juneau, Alaska 99801 POSITION STATEMENT: Opposed HB 162 and SB 127. David Richards 393 Bering Soldotna, Alaska 99669 POSITION STATEMENT: Opposed HB 162 and SB 127. WRITTEN TESTIMONY RECEIVED FROM THESE PEOPLE: John Shaffer 303 Kimsham Sitka, Alaska 99835 Kevin F. McGee 1113 N Street Anchorage, Alaska 99501 Mary Geddes 2544 Forest Park Drive, # 2 Anchorage, AK 99517 Matthew Nicolai 601 W. 5th Ave., Suite 200 Anchorage, AK 99501 ACTION NARRATIVE TAPE 93-59, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Joint Senate and House Judiciary Committee to order and invited REPRESENTATIVE BRIAN PORTER to begin the meeting. REPRESENTATIVE PORTER recognized committee members from the House Judiciary Committee present: VICE-CHAIR JEANNETTE JAMES, MAJORITY LEADER GAIL PHILLIPS, REPRESENTATIVE JOE GREEN, REPRESENTATIVE JIM NORDLUND, and REPRESENTATIVE CLIFF DAVIDSON testifying via teleconference from Kodiak. He introduced both his legislative aide, ERIC MUSSER, and the House Judiciary Counsel, DANIELLE ROPER. SENATOR TAYLOR also reported a quorum of the Senate Judiciary Committee with the appearance of SENATOR DAVE DONLEY and SENATOR SUZANNE LITTLE. REPRESENTATIVE PORTER introduced HJR 43, (PRINCIPLES OF PENAL ADMINISTRATION) by the House Judiciary Committee to the agenda. He explained that HB 162, (CAPITAL PUNISHMENT FOR MURDER), along with the companion bill in the Senate, SB 127, (CAPITAL PUNISHMENT FOR MURDER) would be considered later by SENATOR TAYLOR. At this time, REPRESENTATIVE PORTER welcomed REPRESENTATIVES CON BUNDE and ED WILLIS, and announced the committee was now connected by teleconference to Barrow, Ketchikan, Kodiak, and Kotzebue. REPRESENTATIVE PORTER gave a historical review of HJR 43, credited SENATOR DONLEY for his involvement in the bill, and expressed his desire to see the bill passed this session. He introduced JANICE LIENHART, who has worked for Victims for Justice on the bill. Additionally, REPRESENTATIVE PORTER presented the two parts of the bill as proposed constitutional amendments, and he described the manner in which the amendments would be confirmed in the legislative process and by a vote of the public. Number 051 REPRESENTATIVE PORTER continued with an explanation of the bill as it dealt with Section 12 of Article I in relation to his previous experience in law enforcement. He reviewed the provisions of Section 12 as explained in the Constitution to be the "reformation of the offender." REPRESENTATIVE PORTER expressed his disagreement with this concept both presently and from his past work in law enforcement and urged the reconstruction of the constitutional provision to read as follows: "Penal Administration shall be based upon the following, in the order provided. First, the need for protecting the public, community condemnation of the offender, and the principal of reformation." REPRESENTATIVE PORTER didn't propose the removal of reformation from the amendment, but thought it was time everyone else was given equal, if not first consideration. Secondly, REPRESENTATIVE PORTER indicated the need for a provision to include, within the Constitution, rights for the victims of crime, and he explained the need to balance the rights of people as described in the Bill of Rights in the U.S. Constitution. He criticized the Constitution of the State of Alaska, how it most benefitted the defendants in criminal justice suits, and how the legislation would increase the fundamental rights for victims by placing the provisions of HJR 43 in the Alaskan Constitution. REPRESENTATIVE PORTER continued to assure the continuance of rights that presently exist for criminal defendants, but he said HJR 43 would present more balanced rights to victims than have not existed previously. REPRESENTATIVE PORTER concluded his presentation and called on the first person to testify, DEBORAH IVY, representing Victims for Justice. In addition, he explained MS. IVY would then introduce LINDA AKERS, a Deputy Director for Crime Strike, and a former U.S. Attorney for Arizona. Number 096 SENATOR TAYLOR noted for the record the appearance of SENATOR HALFORD, Senate President. MS. IVY introduced herself to the Joint Judiciary Committee as a victim's rights advocate, a life-long Alaskan resident, and a law partner in the firm of DELANEY, WILES, HAYS, REITMAN, & BRUBAKER, INC. in Anchorage. She described the organization of Victims for Justice in Anchorage as being led by JANICE LIENHART and her sister to assist crime victims throughout the State of Alaska, and she further described her reasons for being involved in the organization. MS. IVY thanked REPRESENTATIVE PORTER, and the members of the joint judiciary committee, for the opportunity to address the legislators, and to commend them for taking the lead in passing a resolution to provide constitutional rights to crime victims, and she stressed the importance of their step. She reiterated her commitment to assisting the committee members to pass the resolution on victim's constitutional rights, and she reviewed some concepts on the background of constitutional rights for victims, beginning with the work of a presidential task force on victims of crime in 1981 & 1982 under PRESIDENT RONALD REAGAN. As a result of this work, it was suggested the Sixth Amendment to the U.S. Constitution be expanded to include "the victim in every criminal prosecution shall have the right to be present and be heard at all critical stages of the judicial proceedings." MS. IVY continued to explain the work done by local victims rights leaders in other states to implement victim's constitutional rights by amending their state constitutions, and thereafter to pursue amending the U. S. Constitution. Number 152 MS. IVY described to date the provision by fourteen states for victim's rights by changing their constitutions, with twelve more states presently seeking to amend their constitutions. In addition, she described previous flagrant disregard for the statutory rights of crime victims in these states. She quoted the findings of the presidential task force as asserting the statutory rights were, and are, subservient to the offender's constitutional rights and would not be changed until the victims were given equal consideration. MS. IVY continued to explain why this "basic law" should be in the Alaska State Constitution to prevent victims from becoming second class citizens in the process, and she discussed the relevance of the experience of victim's rights in the State of Michigan to the Alaskan Constitution. MS. IVY explained how victims can become brutalized by a lack of victim's rights and cited an Alaskan case, Raven v. State, to prove her argument for amending the Alaskan Constitution. Number 209 MS. IVY described the pervasiveness of crime throughout the State of Alaska, and she examined the protection for the offender through numerous provisions. She enumerated these protections as given in statute and interpreted "due process" to give expanded protection to the offenders. MS. IVY also explained she did not proposed to remove these protection for the offenders, but to change the status quo where presently the victim is "victimized" by both the offender and the judicial system. Number 258 MS. IVY requested the proposed amendment be placed before the voters in the next general election, and she explained why she thought the voters would vote "yes." She concluded by sharing a quote from THOMAS JEFFERSON, since she thought it was particularly relevant. At the conclusion of her testimony, REPRESENTATIVE PORTER reviewed the process from there and decided to invite MS. IVY to introduce LINDA AKERS. MS. AKERS was introduced as the Deputy Director for Crime Strike, an arm of the National Rifle Association, working primarily in the area of victims rights advocacy to establish rights for crime victims and to combat crime through legislative reform. MS. IVY reviewed her background of service as a U. S. Attorney, as a member of the U. S. Attorney General's advisory committee to assist the attorney general in formulating national policies within the U. S. Department of Justice, as well as other relevant positions in the justice system. Number 307 MS. AKERS commended the legislators for taking the step forward to provide for the rights of victims as well as for the accused. She thanked the chairmen and members of both the Senate and House Judiciary Committees. MS. AKERS testified as to her position with the National Rifle Association to provide criminal justice reform, with her main emphasis on victim's advocacy. She described her vantage view of the impact of laws on the victims in relationship to the accused and the victims. She described a time when victims she observed had no rights, but were merely used as evidence in a case. MS. AKERS enumerated the grievances as perceived in victim's rights - no rights at all for victims in Alaska and for all but a few states in the United States. She narrated lengthy scenarios in which victims were further victimized by the judicial system. Number 354 MS. AKERS explained how the courts could balance the rights of the victim against the rights of the accused, and why the changes should be made by inclusion in the constitution rather than by statue. She outlined the problems of amending by statute using the premise of "fundamental law." She took on the arguments by those opposed to victim's rights, giving her answers from personal experience. MS. AKERS explained how the changes would add to the responsibilities of the prosecutor, but stressed that no right of the victim would come at the expense of the defendant in the proposed amendment to the constitution. She took on the problem of cost, explaining why there would only be a minimal rise in cost. Number 404 MS. AKERS explained the tremendous cost of crime to the victim and to society, and gave her opinion the government's most important function should be the protection of life, liberty, and property of people. She gave some background information on experience in Arizona with the passage of a victim's Bill of Rights in 1990 in a ballot initiative, and a subsequent set of laws written to implement the constitutional amendment in 1992. She traced the evolvement of the victim's rights law in the Arizona Courts and gave extensive examples of cases to show the balance in the law. Number 450 MS. AKERS explained the opponents of victim's rights in Arizona had raised the same "predictions of doom" as those heard in Alaska, but she declared these predictions have not come true. She also explained how the victims have become a part of the criminal justice system to the advantage of everyone in Arizona, and how the sanctity of the constitution could also be preserved in Alaska. MS. AKERS enumerated the plus side of the constitutional amendment which would provide the victims with basic rights to respect, protection, participation, justice, healing, and finality to their ordeal. She described how obstacles to the victims would be minimized in terms of getting their rights established. She concluded her remarks with a success story from Arizona and answered questions from the audience. Number 499 REPRESENTATIVE PORTER thanked MS. AKERS for her extensive coverage of the manner in which the constitutional amendment works in Arizona. He then read the specific victim's rights in HJR 43 to be considered for inclusion in the Alaska Constitution. He claimed the legislation would not change any of the statutory rights presently provided. REPRESENTATIVE PORTER then opened the meeting to questions, and called on SENATOR DONLEY, who described the differences between HJR 43 and SJR 2 (RIGHTS OF VICTIMS OF CRIMES). TAPE 93-59, SIDE B Number 001 SENATOR DONLEY spoke to possible interpretation when new material is introduced in the constitution. REPRESENTATIVE PORTER explained the phrase in question was recognized by the Alaska Supreme Court. SENATOR DONLEY explained victims were not treated in the same manner as the public. There ensued a discussion among the legislators and MS. IVY, who asked for a clear delineation to prevent problems with interpretation. REPRESENTATIVE GREEN questioned a point by MS. AKERS about the placement of the provision in the Alaska State Constitution as to whether it could be over ridden by any other condition. MS. AKERS explained it would give the victim's rights parity and equality within the fundamental document, whereas statutes can be subject to change, be amended, and be interpreted when inconsistent with a constitutional provision. She also interpreted a constitutional provision as always given precedence over a statute. REPRESENTATIVE GREEN than asked if there was any benefit to certain wording of the proposed amendment to prevent liberal interpretation by the courts, and MS. AKERS said the more specific the rights, the less chance it would be open to interpretation. Number 063 MS. AKERS continued to explain the enumeration of specific victim's rights on which to be relied by the victims and the courts as was done in Arizona. REPRESENTATIVE PORTER next called on REPRESENTATIVE BUNDE, who asked about the opposition to the victim's rights amendment. MS. AKERS explained there was opposition from those who didn't want anything done to the rights of the defendant, from those who complained about cost, and prosecutors, who were concerned about various aspects. She gave examples of these oppositions from her assignment in Arizona. Number 129 REPRESENTATIVE BUNDE asked if it would be considered a greater burden by the defense attorneys, and MS. AKERS replied the defense attorney would still have all of the rights that accrued to the defendant as established by judicial principles and court interpretations. She pointed out the differences between the defense attorney and the role of the prosecutor. Number 160 REPRESENTATIVE JAMES expressed her distress that there has been unfair treatment of the victims, and that they should have already been protected under the constitution. She agreed with the quote from THOMAS JEFFERSON, and urged the "pushing forward" of the legislation. REPRESENTATIVE PORTER agreed with her distress. In his turn, SENATOR DONLEY explained his feelings that the rights of the defendant were well protected, the costs were negligible, and the classic traditional criminal law theory had not done a good job in protecting the rights of the victims. He suggested the bureaucracy as a huge opponent because the implementation of the rules create new jobs and new steps to follow - which they don't like. SENATOR DONLEY also disagreed there should be any impact on the defendants, but said there would be the question of the impact on sentencing. He referred to a previous case concerning a victim's impact on sentencing, and he asked MS. AKERS if she knew of such legislation. Number 207 MS. AKERS said the case was overturned and the victims were allowed to talk about the impact of the capital crime on them at the sentencing phase. SENATOR DONLEY thought it was important to differentiate between the guilt phase and the sentencing of the defendant. He reminded the committee the victim did not get a chance to testify until guilt had been assigned and not prejudicial to the guilt of the defendant. Next REPRESENTATIVE PORTER called on REPRESENTATIVE PHILLIPS who said SENATOR DONLEY had partially answered her question, but she wanted to know what had held up passage of the bill in the past. REPRESENTATIVE PORTER said he would ask someone to testify on this. SENATOR TAYLOR explained he had sat on three sides of the issue, one being as a public defender during his time in private practice, his service of six years on the district court bench, and now, to look at the issue from the legislative perspective. He was in agreement with SENATOR DONLEY 'S description of the stages to decide on guilt and moving on to what is an appropriate sentence - an entirely different forum. SENATOR TAYLOR explained it was at this point the additional attention from the victim would be important. Number 263 SENATOR TAYLOR described how, in earlier years, defendants might plead to a Class A misdemeanor and end up in his district court without the benefit of the superior court with pre-sentencing reports from those involved with the defendant. He also described how he tried, when he was a judge, to contact the victim, which he felt gave him a broader depth of the offense. SENATOR TAYLOR thought it enabled him to provide a rehabilitative factor in the sentencing of the defendant. SENATOR TAYLOR discussed with REPRESENTATIVE PORTER the advantage of slowing down the repeat offender, and how important he thought the legislation was to structuring sentencing. Number 305 MS. AKERS used the recent DENNY trial in Los Angeles, in which the victim had forgiven his assailants, to explain the use of the victim's impact statement. SENATOR TAYLOR agreed that many people resolve their feelings as a victim by forgiveness, and MS. AKERS explained it was important that the victim have the right to participate and be heard. REPRESENTATIVE GREEN asked MS. AKERS if there was any relation to civil cases, and she had no evidence from Arizona that made it easier to sue in such a case. Number 359 SENATOR DONLEY asked MS. AKERS for some additional information on principles not directly in the victim's rights area, and she explained his request dealt mainly with appellate decisions as to the purpose of sentencing. She thought his proposed language should be kept in mind during the implementation of the legislative language. Number 422 REPRESENTATIVE PORTER next invited WILLIAM F. DEWEY, a criminal defense attorney from Anchorage, to testify on the proposed legislation. MR. DEWEY criticized the previous testimony for discussing the criminals and criminal defendants as if they were already convicted, and their rights as being different from those of a citizen. Based on his experience, he thought the proposed legislation was cosmetic, and he gave some examples from his cases. MR. DEWEY said all of the victim's rights mentioned in the proposed legislation were currently in statute, but he explained the statutes were flawed and should be known to the legislators. He said the establishment of liability to the victim is there at the time of the criminal offense, and many criminals in this state have the means to pay their victim for the crime they have committed. MR. DEWEY said the present Victims Crime Act puts the lawyer, at the time of conviction, at a disadvantage to obtain police reports, witness statements, the kinds of information necessary to further litigate the rest of the action - to present a restitution argument to a judge. He claimed those are not available to a crime victim now. MR. DEWEY said laws should be formulated to allow crime victims the ability to get restitution. He reviewed a second provision in the act that absolves the Department of Law and prosecutors from liability for not doing what they are required to do under the act. Number 485 MR. DEWEY said the results were, when the lawyer was not given the information by the prosecutor, to increase the expenses to the attorney representing the victim. He claimed there was no definition, except for a broad policy sense, in the Victims Crime Act as to what damages are available to victims. He gave some case histories to support restitution. MR. DEWEY suggested the committee focus on the real victim's needs and work towards that end. He reviewed his reasons as to why the present act would not work and what is needed to put some teeth in the law to make it work. Number 499 When asked to summarize, MR. DEWEY reviewed his solutions to meaningful legislation to which a civil litigant is entitled. SENATOR DONLEY said that in 1987 he testified in support of a bill containing all of MR. DEWEY'S suggestions, but it was opposed by the Department of Law, the Governor's office, and the Court System. TAPE 93-60, SIDE A Number 001 SENATOR DONLEY claimed his legislation was killed by the bureaucracy and described an ingrained opposition to the proposals in HJR 43. There was some general conversation among the legislators, and MR. DEWEY resumed his criticism saying all of the provisions were in statute now. He suggested the committee challenge the court system on the efficiency of the system and move forward to deal with the suggestions by SENATOR DONLEY. There was a review of the reasons for putting the Victims Crime Act into the Alaska Constitution by REPRESENTATIVE PORTER, mainly to protect the provisions in case the statutory rights come into conflict with the constitutional rights of the defendants. In answer to a question from SENATOR TAYLOR on what he would like to see in the bill, MR. DEWEY listed a definition of restitution in the constitutional provision written to have some meaning. He said restitution presently has no meaning to a crime victim who wants to go to court to ask for restitution of non-specific damages, and he explained why the present definition did not work. Number 062 MR. DEWEY gave some suggested language that would protect the right of the victim to collect additional civil damages. SENATOR DONLEY clarified the language by explaining that victims of crime have greater rights than other people in civil court, because the previous Victims Rights Act provided fewer exemptions from the collection of restitution from people who committed the crime. He explained how there was a more limited scope in present proceedings. MR. DEWEY explained how the view could be changed to make restitution simpler. SENATOR DONLEY concluded with a follow-up as to whether it would be appropriate to include victims in Section 1. REPRESENTATIVE PORTER and SENATOR TAYLOR discussed the role of the victim in the decision making stages and whether it belonged in Section 24, to keep the victim apprised of all proceedings. Number 118 REPRESENTATIVE PORTER relinquished the committee chair to SENATOR TAYLOR, who announced the hearing on HB 162 (CAPITAL PUNISHMENT FOR MURDER) and SB 127 (CAPITAL PUNISHMENT FOR MURDER). SENATOR TAYLOR explained there would be a balance of testimony on both sides of the issue. (There was a pause in the proceedings.) Number 346 SENATOR TAYLOR called the meeting back to order and gave some background information when he co-sponsored a similar bill six years ago. He said this was the first hearing to be held in ten years on this issue. He further said he hoped the debate would reach the floor in both houses for a vote, and he thinks there should be a point in time when the death penalty should be used at the discretion of the jury. SENATOR TAYLOR spoke about the differences in the two bills, but felt there could be some modifications in both. He then invited REPRESENTATIVE SANDERS to give an overview of his bill, HB 162. REPRESENTATIVE SANDERS thanked those present who came to discuss capital punishment, saying it has needed to be addressed for many years. He claimed the will of the people has been thwarted in past attempts to institute the death penalty. Number 404 REPRESENTATIVE SANDERS explained the bill seeks the death penalty in cases of First Degree murder with aggravating circumstances. He further explained that if the legislation is passed by the legislature, it would go the public for an advisory vote. REPRESENTATIVE SANDERS claimed the people of Alaska have been in favor of the death penalty by 75 to 85% in the different polls. He feels the death penalty would be a deterrent and was supported by the will of the people. He then turned the remainder of the overview over to his aide, ELIZABETH BELLINGHIRI. MS. BELLINGHIRI suggested that rather than giving a sectional analysis, she would defer to JERRY LUCKHAUPT, the attorney who drafted both capital punishment bills. REPRESENTATIVE SANDERS checked to be sure MR. LUCKHAUPT would point out the differences in the two bills. REPRESENTATIVE PETER KOTT asked to question MS. BELLINGHIRI as to his understanding the only difference in the two bills was the prosecutorial discretion in the House version as to the treatment of the offenders and the impact on the fiscal notes. Number 454 MS. BELLINGHIRI noted the fiscal notes were similar as presented by the Department of Law despite the text change to reflect the prosecutorial discretion. She said the fiscal note for SB 127 should be approximately four times greater than for HB 162 based on figures from the Department of Law. She reviewed their analysis of the statistical manner on which they based their costs and explained why the fiscal impacts were not really similar. The Department of Law decided to change their fiscal note for the Senate version to make it a more accurate reflection. MS. BELLINGHIRI explained what she called a "brief difference" in the two bills, and she further explained the use of the prosecutorial discretion to preserve the integrity of the system. She said the discretion provision was to be used in heinous situations where death was a possible sentence, otherwise, she explained the two bills were the same. Without prosecutorial discretion, MS. BELLINGHIRI said the legislation opened the doors to litigation. Number 499 SENATOR TAYLOR asked MR. LUCKHAUPT, Legislative Counsel for Legal Services, to testify on the two bills. MR. LUCKHAUPT began by noting both bills were drafted by him in similar fashion but were based on different versions of death penalty bills from the Fifteenth and Sixteenth Legislature. He explained SB 127 was from a bill co-sponsored by SENATOR TAYLOR from the Fifteenth Legislature that actually passed the Senate that year, but did not proceed from there. He also explained the bills had been updated over the years to reflect the U. S. Supreme Court Cases on the death penalty issue. MR. LUCKHAUPT said the death penalty issue is one of the most litigated issues to be found, but the direction from the supreme court has made the bills easier to draft, such as to narrow the discretion of the jury to the particularized nature of the crime and the particularized characteristics of the defendant. The narrowing of this focus permits the imposition of the death penalty. MR. LUCKHAUPT then reviewed the differences such as "findings" in HB 162, but not in SB 127. He said these findings are for the legislature to decide whether or not to use. MR. LUCKHAUPT gave a comprehensive sectional analysis of both bills. TAPE 93-60, SIDE B Number 001 This tape began with SENATOR DONLEY asking questions about the aggravators. MR. LUCKHAUPT answered that in order to impose the death penalty on someone convicted of First Degree murder, at least one of the statutory aggravating factors, given later in the bill, must be present. SENATOR TAYLOR asked if they were specific to this death penalty, and MR. LUCKHAUPT said they had been added in 1992. MR. LUCKHAUPT continued with the sectional analysis and expanded on some of the points which would provide for a bifurcated trial and some options. Number 125 REPRESENTATIVE PORTER asked MR. LUCKHAUPT if the burden of proof for the jury in finding the aggravating factor must be unanimous and beyond a reasonable doubt. Once that is found, if they balance that and any other aggravating factors against any mitigating factors they have found to a preponderance of the evidence, which is a lower standard. MR. LUCKHAUPT quoted the supreme court as saying that once the aggravating factor is found beyond a reasonable doubt the case is then eligible for the death penalty, and the mitigating factors end up being a way to determine whether or not the death penalty should be imposed. There was a general discussion of mitigating and aggravating factors and the problems of proof. Number 375 SENATOR HALFORD spoke about the Court of Appeals as being totally a legislative creation and questioned whether the legislature could define the Court of Appeals by statute. He said the Court of Appeals is not constitutional nor is it constitutionally protected. MR. LUCKHAUPT said the bill had changed the jurisdiction of the Court of Appeals by not allowing them to hear capital offenses. In answer to a question by SENATOR HALFORD, MR. LUCKHAUPT argued it was not a rule change. SENATOR HALFORD asked if the legislature, by simple majority, could repeal the existence of the Court of Appeals, which was created by simple majority. MR. LUCKHAUPT believed they could. Number 414 SENATOR TAYLOR asked MR. LUCKHAUPT to be available for questions after lunch. (The committee recessed for lunch.) SENATOR TAYLOR reconvened the meeting in the midst of questions to MR. LUCKHAUPT by SENATOR HALFORD on the standards for the use of the aggravator and the mitigator. MR. LUCKHAUPT explained the court would rule on the relevancy of the mitigating factor. SENATOR HALFORD continued to question MR. LUCKHAUPT closely on the use of the mitigating factors and where they are found. MR. LUCKHAUPT said the court could not limit the number of mitigators that go to the jury, so there is no way to list them - but the judge must allow any relevant mitigating evidence to go to the jury. If the list can not be constitutionally contained, SENATOR HALFORD asked if there were any parameters, and MR. LUCKHAUPT quoted from supreme court decisions that would allow any one juror to hang the process. SENATOR HALFORD wanted to know to what extent the legislature can make the statute work, because he was concerned the legislature would be creating something that cannot ever be used. SENATOR TAYLOR expressed interest in a more complete answer to the use of mitigating factors as used by the other thirty seven states that have a death penalty statute on their books. Number 499 SENATOR DONLEY asked to add a caveat to the question asking how many of those state have parallel provisions in their constitution. MR. LUCKHAUPT began his explanation by discussing the balance of reformation with the protection of the public, and he repeated testimony from the constitutional convention. He said some of the Western states had comparable language, but it was difficult to find a state that makes a perfect match. He also explained HB 162 and SB 127 were based on the Georgia system, which is used the most in the thirty seven states that allow capital punishment. He reviewed similar systems from other states. MR. LUCKHAUPT said when the death penalty was struck down in 1968 by the U. S. Supreme Court, they struck down a series of state laws that required mandatory imposition of the death penalty for various crimes. States, such as Georgia, adopted a system approved by the supreme court in the early 1970's. TAPE 93-61, SIDE A Number 001 This tape picks up the question and answer session by SENATOR TAYLOR and SENATOR HALFORD with MR. LUCKHAUPT, who was explaining additional aspects of the death penalty, including the length of time served by people on death row. He reviewed the number of appeals that could be made in Alaska, even with the new legislation. MR. LUCKHAUPT said the lack of prosecutorial resources could hamper the use of the death penalty in Alaska, and he reviewed the problems involved in prosecuting a death penalty case. He offered to do some additional research on the constitutional limits. REPRESENTATIVE PORTER presented two understandings and asked MR. LUCKHAUPT to comment. MR. LUCKHAUPT explained the voir dire procedure where, before the trial, the two sides talk to the jury to determine what they know about the case and their feelings about the death penalty. He also explained the role of the judge and new juries in this action. REPRESENTATIVE PORTER asked if there was anything in the bills that would alleviate the concerns people have at the lapsed time between conviction and the execution sentence. MR. LUCKHAUPT talked about the limitation on the Court of Appeals in the bills and the provision for direct appeal to the Alaska Supreme Court, which can remove about a year from the appellate process. He described proposals in the federal system to streamline the Federal habeas corpus procedures, but he said it did not impact the bills. MR. LUCKHAUPT didn't hold out much hope for speedy trials. Number 093 REPRESENTATIVE GREEN asked for some understanding on the procedure. For instance, what if the defendant pleads guilty, would there still be a long drawn out process. MR. LUCKHAUPT explained, under SB 127, if the defendant pleads guilty to first degree murder, the death penalty phase of the sentencing proceedings would begin. Under HB 162, if the prosecutor has not elected to seek the death penalty, even if the defendant pleads guilty, there would be no death penalty phase. If the prosecutor elects to seek the death penalty, or if the defendant pleads guilty without a plea bargain as to a life sentence, then the death penalty phase would begin. REPRESENTATIVE GREEN read from HB 162 and asked about the jury. MR. LUCKHAUPT explained the role of the jury in the sentencing phase of the trial, or in the case of the judge hearing the case, a jury would have to be convened to hear the sentencing phase. They continued to discuss these provisions at some length. Number 190 SENATOR DONLEY returned to constitutional issues and directed MR. LUCKHAUPT to page 9 of a memorandum from JACK CHENOWETH, an attorney from Legislative Legal Counsel, for his opinion on the test for constitutionality under Article 1, Section 12, and asked if he shared the same opinion as MR. CHENOWETH. MR. LUCKHAUPT expressed no problem with MR. CHENOWETH'S conclusion or his reasoning and explained there would be no way to predict what the Alaska Supreme Court would do under a challenge. He cited the Raven Case as an example in Alaska and summarized conclusions from other states. SENATOR DONLEY asked MR. LUCKHAUPT on what he based his analysis of the law and gave an example from a previous meeting on the "rule of evidence" where the courts refused to recognize "legislative intent." SENATOR DONLEY wanted to know if his analysis was based on what a neutral tribunal would do or take into consideration the unique characteristics of Alaska. MR. LUCKHAUPT explained that all of the considerations were factored into his decision, and he noted the inclination of the Alaska Supreme Court to utilize the state constitution to justify or strike down various actions of the legislature or the executive branch. As a general rule, supreme courts in other states have not been too active in the enforcement of their own constitutions, but Alaska has been different. He thought the Alaska Supreme Court has acted in a liberal manner in defendant's rights but felt there has been a change in the supreme court over the last few years, which he also felt has mirrored the changing perception about crime by residents. Number 276 SENATOR DONLEY again expressed his concerns about how the laws could be made constitutional, and he referred to several points of concern in both MR. CHENOWETH'S and MR. LUCKHAUPT'S memorandums. SENATOR TAYLOR assured him there would be more hearing on the death penalty bills. SENATOR TAYLOR brought the questioning to a close to allow more time to hear from others, beginning with EDWARD MCNALLY, District Attorney for the Third Judicial District in Anchorage and DEAN GUANELI, Chief of the Legal Services Section of the Criminal Division, on the teleconference line from Juneau. MR. MCNALLY expressed his appreciation at being able to participate in the discussion and acknowledged those who had championed the battle for capital punishment. He began by conveying the support of GOVERNOR WALTER HICKEL for the efforts of the committee and the governor's promise to sign any legislation that would ensure that "cop killers, and others guilty of vicious and heinous murders in Alaska will face the full range of constitutionally approved penalties." MR. MCNALLY also brought the personal thanks of ATTORNEY GENERAL CHARLIE COLE, who regrets that he was unable to participate in person. He explained that both the governor and the attorney general had made the death penalty and the battle against violent crime a top priority. Number 333 MR. MCNALLY proposed questions to be asked of those who oppose the death penalty, and he began with some background material, including "the death penalty is in effect in Alaska, today for R.D. CHEELEY. PRESIDENT BILL CLINTON is working to add forty seven new categories to the laws that will be effect in the State of Alaska through the Federal Court System." MR. MCNALLY noted the trial would take place in Portland, Oregon, and he asked the participants where they would prefer to see the case heard. MR. MCNALLY then focused on the governor's concern for "cop killers" and the change in attitude of the offender towards the police. He said today the police are the first ones shot and targeted by criminals armed with a staggering array of weapons. He reminded the committee of the weapons shown in a previous meeting, and he presented a case history of a heinous crime against a police officer by a juvenile with one of these weapons. Number 408 MR. MCNALLY presented some background information on the sentencing procedures in Alaska and in other states where they have capital punishment. He asked why the prosecutors in the State of Alaska do not have the same tools as the prosecutors on the federal level, with the full array of penalties on the books. MR. MCNALLY urged a response from opponents of capital punishment. When talking about costs, MR. MCNALLY gave a perspective on the cost of not having a death penalty. He thought there were many cases that could be "disposed of" short of a trial, thus saving on cost. He offered the statistic of 30,000 policemen and women being killed in this country since it was founded, twenty six of whom were killed here in Alaska. He said these figures don't take into account the wounded, the disabled, and the suffering of the families of the officers. Number 462 MR. MCNALLY said the Alaskan Troopers and cops deserve all the protection the law passed by the legislature can offer, and criminals need to understand that in Alaska, if you shoot a cop, you will be severely punished .... possibly with their life. He returned to fiscal notes and budget considerations and observed that the cost of the fiscal notes are unknown and resource determinations are made every day when they are screening 1,400 felony cases a year. MR. MCNALLY urged the legislators not to make fiscal notes an obstacle to the proposed legislation. MR. MCNALLY said the death penalty was warranted in Alaska for two principal reasons: first, because it can deter certain crimes involving premeditation and calculation, and second, society has the right to exact a just and proportionate punishment for reprehensible offenses. He gave two examples to prove his case for the death penalty. TAPE 93-61, SIDE B Number 001 MR. MCNALLY gave the following statement: "a criminal justice system that is limited like ours, only to lesser sanctions, is lacking in adequate deterrents and fails to meet our community standards, and their need to exact a just and proportionate punishment for the gravest offenses." MR. MCNALLY enumerated the reasons given for criminal behavior, but he rejected those in favor of designating criminal behavior as a choice between good and evil. MR. MCNALLY concluded by describing the memorial placed in Washington D. C. to the slain police men and women of the United States, as well as the memorial at the State Trooper's Headquarters in Anchorage with the names of the twenty six officers attached to a statute of an Alaskan law enforcement officer. He offered his services as well as those of DEAN GUANELI in Juneau to answer questions on the fiscal notes. Number 067 SENATOR TAYLOR thanked MR. MCNALLY for his presentation, but he requested the deferment of questions to allow persons on the other side of the issue to testify. He then called on JOHN SALEMI, Director of the Public Defender Agency, and BRANT MCGEE, Director for the Office of Public Advocacy to testify. MR. SALEMI spoke to the issue he thinks binds all persons in the room together, which is our perception that we need to do something in this nation, in this state, and in this community to enhance the public safety of law abiding citizens. He suggested that people were attending the meeting to support the bills because they are frightened and frustrated by crime, and they wanted solutions. Number 102 MR. SALEMI would not characterize himself as someone who was trying to defeat an enactment of the death penalty, but as a person just as concerned as the participants in the meeting over public safety issues. He explained he planned to present some information so the public could make an informed decision about how to use the finite resources that we have in this state to fight crime, to provide rehabilitation, and to prevent further victimization of the populace. MR. SALEMI spoke to the perception that capital punishment deters crime, which he classified as logical and rational. He quoted REPRESENTATIVE SANDER'S view that the death penalty would deter criminals, and he described a "stack of studies" which indicates that capital punishment does not have a deterrent effect. He asked the participants to look at more obvious evidence, which he said was thirty seven large-scale experiments - the states that have the death penalty, some for many years. MR. SALEMI explained there were no statistics from the thirty seven states that gave evidence the death penalty had deterred violent crime or homicides. "In fact," he said, "much of the evidence suggests just the opposite, there is no significant impact." MR. SALEMI acknowledged that society is apparently becoming increasingly dangerous, but those tools employed are not working to fight crime. He listed capital punishment as one of those failed experiments. He explained that if the death penalty is removed as a deterrent to crime, it leaves only one other strong or compelling use, which is to re-affirm the values of society - possibly a moral judgement. Number 158 MR. SALEMI discussed the down side in using capital punishment to achieve retribution, the first being the expense, and he respectfully disagreed with MR. MCNALLY on the resource decisions, and drew on the experience of other jurisdictions to speculate that it would be enormously expensive to employ capital punishment in this state. He quoted the prevailing belief that it is just the cost of law enforcement, the cost of justly punishing people. MR. SALEMI enumerated a list of what he considered the crimes that really affect individuals on a large scale basis: drug trafficking, burglaries, auto theft, property damage, sexual abuse, and more. He explained the money that would go towards processing the death penalty cases would be detracting from efforts of law enforcement in addressing the crimes that affect all of us on a very regular basis. MR. SALEMI described the justice system as being frail, the probability capital punishment would be instituted in the state, and that innocent people would be executed. He said no matter how many resources are spent on the legal process, mistakes will be made, and he reviewed all the procedures that might go wrong on all levels of a death penalty case. MR. SALEMI said these cases can be documented. Number 274 MR. SALEMI explained that both he and MR. MCGEE would need larger budgets to process capital punishment cases. He listed what he considered better uses for the money, and he suggested using it for the education of people on crimes and deterrents. He offered each member of the committee packets of information on studies about capital punishment. He concluded by urging people to go beyond the emotional components and look at the practical effect of sound public policy. Number 346 MR. MCGEE described his agency, the Office of Public Advocacy, as small, expending about $6.4 million in public funds in the representation of about 10 thousand citizens in the state, with primary responsibility to abused and neglected children, incapacitated persons, and indigent criminal defendants when the court has determined the Public Defender Agency has a conflict of interest. MR. MCGEE said among his primary responsibilities is cost control, because nearly two thirds of the cases, for which he is responsible, are performed by private contractors and court appointed professionals throughout the state. He said he had become a student on the costs of the death penalty over the past few years because it has been considered before. MR. MCGEE expressed pleasure at being able to share his personal research information, and he referred to a New York study in 1982 which determined the average cost for each death penalty case at $1.8 million. He extrapolated that to $2.5 million per case in 1996 dollars, and he said it did not point to the real costs in every case. Number 380 MR. MCGEE reviewed expenditures in California of $593 thousand for trial costs alone, with one case in which they expended over $5 million, and in one county, California contracted with six private defense counsels to represent three separate criminal defendants at $450 thousand per defendant per trial. In 1988 California is spending over $90 million a year on capital cases, and since capital punishment was instituted 11 years ago the costs have amounted to about $750 million. He said California just executed their first person earlier this year. MR. MCGEE explained the prosecution failure rate is quite high on the number of people actually executed as opposed to those for whom the death penalty is pursued. The trial costs alone in California is about $6 million before the person is put on death row. He further explained in Florida the cost is $3.2 million per execution. MR. MCGEE presented the combined fiscal notes for the Alaska Court System, the Department of Law, the Public Defender Agency, and the Office of Public Advocacy which would total over $21 million in the first four years from the enactment of the death penalty. He claimed the figure would likely double during the first ten years, and it would be at least eight to ten years before the first Alaskan defendant is executed, which would mean Alaska would spend at least $40 to $50 million before the first Alaskan defendant is executed. Number 414 MR. MCGEE stressed the importance of the impact on the scarce resources in the state in relation to the experiences in other states, and he quoted California as devoting half the time of their supreme court to death penalty cases. Currently none of the Alaskan Supreme Court time is used on death penalty cases, but MR. MCGEE contended there would be tens of thousands of Alaskans, who are trying to get into District Courts, Small Claims Court, Superior Court, and the Alaska Supreme Court who would have to wait their turn in line. He further contended there would be a dramatic slowing of the process of both criminal justice in other cases and civil justice in all cases, if the legislature enacts a law that mandates the expenditure of vast public resources on just a few cases. MR. MCGEE disagreed with MR. MCNALLY as to the extent of the costs, and he encouraged legislators to become informed on the vastly expensive undertaking that should go forward only with very good reasons. In his own agency, MR. MCGEE described how his representation of other individuals within his statutory mandate would suffer if he had death penalty cases, since they would be the highest priority cases in every office in which they are housed. He offered to respond to any specific questions and to share his research information on other aspects of the death penalty. Number 461 SENATOR TAYLOR thanked both MR. SALEMI and MR. MCGEE, praised their professional presentations, and assured them they would be involved in additional debate. Next, SENATOR TAYLOR invited SHARON NAHORNEY, who testified as a member of a family of victims of violence. She thought it was important to keep the death penalty issue before the legislature, because they will realize it is a just law, and a "must have" law for the State of Alaska to maintain a safe and sane society. MS. NAHORNEY suggested that money could be saved by not providing law libraries and law degrees for prisoners to create more appeals that come back through the court system. She ask them to consider how to calculate the cash value of avoiding murders and the value of the life of a loved one. MS. NAHORNEY thought the capital punishment bill was necessary to protect our community, and she felt the death penalty can be a key anti-weapon and a major deterrent. She cited seven and a half years as the average life sentence for murder across the nation, putting them out to walk among us. She didn't think this time period was enough, that crime was repetitive and seasoned criminals come out to re-offend. She gave some histories to defend her statements. Number 499 MS. NAHORNEY described the new breed of criminals raised on crack and more prone to violence, bring about an increase in homicides. She reviewed the statistics of those favoring the death penalty, the problems in rehabilitation, and the release of criminals due to prison overcrowding. She recommended more prisons if there is not to be a death penalty, and she blamed the courts for being too concerned with the rights of the prisoners rather than the rights of society. She said a constitutional amendment must be passed to give victims equal rights to perpetrators. MS. NAHORNEY reviewed a series of studies on the low number of criminals committed for their crimes, the rise in crime rates, and the lack of protection for society. TAPE 93-62, SIDE A Number 001 Testimony continued from tape 3 on the "Gillmore Effect" where publicized harsh punishments appear to contribute to lower rates of violent crime, while unpublicized harsh punishments have no affect on the rate of violent crime. MS. NAHORNEY believes that had a death penalty been in effect in 1985 when her family was murdered, it would have been a sufficient deterrent to the murderers to have prevented the crime. Number 071 TED LEMAIRE, the grandfather of a victim, MANDY LEMAIRE, testified he left the lower forty-eight to escape rising crime rates, and he encouraged the legislature to look at anti-crime legislation. Despite the fact that his eleven-year-old granddaughter was kidnapped, sexually assaulted, and murdered, he remains opposed to the death penalty. He has accepted her death. MR. LEMAIRE considers the real problem to be crime. He advocates dealing with crime, but not through the death penalty. He believes crime will affect all people at some point in their lives. Number 131 MR. LEMAIRE continued, saying the death penalty will not deter a criminal, nothing will deter a criminal. In his grand- daughter's case, he said the criminal had stalked several other girls before killing his granddaughter. He explained the difference between us and the criminal is that we can be deterred by a host of things and the criminal cannot. MR. LEMAIRE referenced an occurrence several months ago of a confrontation between a gunman and police officers at Tudor and Muldoon in Anchorage where the gunman could not be deterred. He noted the gunman in the incident was a repeat offender and said criminals lack the ability to see how the principles of right and wrong apply to him. MR. LEMAIRE claimed the law must be consistently practiced and applied to be a deterrent, something which has never been done. Number 248 MR. LEMAIRE summarizes by saying he has seen the public defender and public advocacy people at work and said he was offended by their operation. He claimed they had money to burn and that their budgets should be cut. He said the biggest problem with the use of the death penalty was the legal hassles that are generated, and attorneys who over utilize the appeals process should be penalized. Number 305 SENATOR TAYLOR requested information on people wishing to testify and asked for show of hands for those unable to testify in Juneau. He stated he was willing to stay as long as it takes for everyone who wishes to testify to do so. DONNA DINSMORE POFF said she was testifying on behalf of her son who was murdered. She contacted thirty-four legislators regarding her son and was disappointed that she only received responses from two legislators, REPRESENTATIVES GRUSSENDORF and SANDERS. She said it takes too long for justice to be served. Number 387 SENATOR TAYLOR assured MS. POFF that all her comments from both days of testimony will be in the record. MS. POFF summarized by saying she never wants anyone to forget her son and urged the committee to expedite the passing of these bills. Number 428 JONATHAN KATCHER testified the cost of the death penalty is not intended to be a reflection of what the lives of the victims are worth, but will take away funds and resources from prosecuting crime. He thinks that implementing the death penalty would prolong the pain of crime victims and their families because of the greater degree of scrutiny with which the courts would examine these cases. Number 468 MR. KATCHER said he found it ironic that the same legislature that is contemplating giving juries the power to dispense a sentence of capital punishment is also contemplating taking away the power of juries to award compensation in cases in civil court. MR. KATCHER described a person and a crime that would fall under the guidelines of this legislation. He stated that person is now heavily involved as an advocate in the Native sobriety movement and is now doing positive things for this community and this legislature, because it's saving money by getting to the heart of the Native sobriety issue. He urged the legislature to resist the emotional element in the passage of the death penalty. Number 535 SENATOR TAYLOR called the next witness, MICHELLE KERR, who said she couldn't believe that the death penalty wouldn't deter someone from committing a crime. She said she couldn't think of a better argument for the death penalty than when someone from prison conspires and succeeds in killing someone else. She also agreed with the concept of "an eye for an eye." SENATOR TAYLOR thanks the previous witness and called the next witness, JOHN FARLEIGH who stated he was at one time on a jury for a murder trial. He said that murder is a horrible thing and deserves to be punished as harshly as possible, but that real life cases are not as "cut-and-dried" as they are on Perry Mason. Tape 93-62, SIDE B Number 001 MR. FARLEIGH summarized by saying it would be hard for a jury to decide whether or not to use the death penalty for fear that an innocent person would accidentally be sentenced to death. He thinks it would have been much harder for the jury on which he served to come to a decision had the death penalty been an available sentencing option. He concluded saying the death penalty is a permanent decision and the potential for executing someone wrongly exists. He commented that if someone who is sentenced to serve jail time is later found to be innocent, then at least that person can be let out of jail. Number 059 SENATOR TAYLOR thanked MR. FARLEIGH again for his testimony from the point of view of the juror and thanked him for giving his time and energy to the American jury system. the next witness was RANDALL BURNS, representing the Alaska Civil Liberties Union, who stated the ACLU is opposed to the death penalty and believes that capital punishment is inconsistent with our fundamental values. He said the ACLU is not soft on crime, but believes that any state that would authorize the killing of another is committing an immoral act. He says it is an issue of respect for human life. MR. BURNS said it teaches the permissibility of using violence to solve social problems, that capital punishment is really murder by the government. Number 105 MR. BURNS continued by saying the facts simply do not support the idea that the death penalty would be a deterrent to possible violent criminals. Most people think they will be able to avoid detection in committing a crime, and the death penalty simply is not going to stop that mind set. MR. BURNS raised the issue of fairness, because death row inmates are disproportionately composed of African-Americans. He thought that in Alaska, Alaska Natives would possibly make up a large number of the inmates on death row. MR. BURNS commented that in the trial courts of this nation at this time the killing of a white person is treated much more severely than the killing of a black person. Of the 168 persons executed between January 1977 and April 1992, only twenty-nine have been convicted of killing a non-white person, and only one of these twenty-nine persons was white himself. MR. BURNS stated that as utilized in our justice system, the death penalty is reserved for murderers, regardless of their race, who kill a white person. When discretion is used in sentencing a person, it has always been used in this country to mark for death the poor, the friendless, the uneducated, and members of racial minorities, thus discretion becomes injustice. Also, he said you cannot correct a mistaken conviction once the state has taken that person's life. MR. BURNS offered a list of examples of persons who have been on death row who were later found to have been innocent of the crimes for which they were sentenced and were later released from prison. Number 165 SENATOR TAYLOR requests that MR. BURNS submit a copy of the list to the committee. MR. BURNS suggested the legislators make alterations to existing laws in order to clarify for the public that life imprisonment without the possibility of parole exists in this state and can be used by prosecutors. MR. BURNS said he understands no person convicted in Alaska of first degree murder is eligible for parole for at least thirty-three years. He urged the legislature to adopt specific language offering life without parole in Alaska and ending the idea that we should be bringing the death penalty to the state. Number 198 MR. BURNS said in regards to the death penalty assuaging the grief suffered by the family of the victim, that most families of victims say that no penalty can substitute for the loss of a loved one. He quoted from a report entitled "Sentencing for Life" which was submitted to the committee. MR. BURNS offered another report, "Millions Misspent: What Politicians Don't Say About the High Cost of the Death Penalty," which he submitted to the committee along with a brochure on a poll which found that only 41% of the population would support the death penalty if there were provisions in law for first degree murderers to be sentenced to life in prison with no possibility of parole. Number 238 SENATOR TAYLOR calls the next witness, HUGH FLEISCHER, an Anchorage attorney, who said there were no guarantees whatsoever in this legislation that the only people sentenced to death would be those who are without a doubt guilty of a heinous crime. He recalled the second person to be executed in the U.S. after the death penalty was reinstated in 1979 was JOHN SPEKALINK, whose case was mismanaged by the defense, since there were strong indications that he had acted in self- defense when he committed the murder for which he was accused. In addition, there were comments from one of the defense attorneys stating that he did not feel qualified enough to defend MR. SPEKALINK. Number 289 MR. FLEISCHER said there are flaws in the system, and it is important that the state do everything possible to help victims of crime, but it should also insure that our state does not make an innocent person a victim of this process. Number 337 SENATOR TAYLOR thanked MR. FLEISCHER for testifying and called the next witness, TERRY BURRELL, who described to the committee her neighborhood community council meeting where everyone agreed that it should be a priority to stop the increasing rate of crime and to protect the neighborhoods. She supported SB 162 or a combination of the Senate and House bills relating to the subject, whichever could be implemented. She also would like to see a limit on the number of appeals available to defendants. MS. BURRELL asked the legislature to please pass a capital punishment law, effective January 1, 1995. She believes that lethal injection or hanging would be a deterrent and agrees with Ed McNally's testimony. She has not been a victim of crime, but thinks the death penalty is needed. MS. BURRELL urged the committee to ignore the testimony of the ACLU. Number 376 SENATOR TAYLOR thanked MS. BURRELL for testifying and call on JOHN HAVELOCK, who apologized to the committee for not being able to hear previous testimony in order to avoid repeating anything already said. He thought that if capital punishment was an option in sentencing, there would be more defendants pleading guilty on lesser charges in order to avoid the risk of being punished with the death penalty. He questioned whether this would be a desirable thing to do and thought that it would be adding to the power of prosecutors. MR. HAVELOCK doesn't like the trend of the past thirty years of taking more discretion away from judges and giving it to prosecutors. Number 422 MR. HAVELOCK continued by saying he thought this bill is a part of that trend, and in addition, the death penalty is not a good idea under the particular circumstances of the administration of justice. He is not opposed to the death penalty for moral reasons, but thinks that in Alaska it would be a particularly "lousy idea." MR. HAVELOCK also considered that under the Constitution of the State of Alaska this bill would be unconstitutional. His advice, if the death penalty is really needed, would be to amend the Constitution of the State of Alaska. He believes that the death penalty would cause problems in the multi- racial population of the state, since figures show that minorities would probably be unduly affected by such a law. Number 470 MR. HAVELOCK also declared it would add to the increased divisions between ethnic groups. He commented on the fact that during the time he has been attending the committee meeting he has seen no blacks, and perhaps one Native. He once again asserts that the effect of the death penalty would be to increase interracial hostility. MR. HAVELOCK continued his analysis of the constitutionality of capital punishment in the state. Number 537 MR. HAVELOCK totally agreed with the need to do more for victim's rights, and he agreed with the option of sentencing first degree murderers to life imprisonment without chance of parole. SENATOR DONLEY asked about the constitutionality of having the death penalty available for any charge of aggravated first degree murder, and if MR. HAVELOCK doesn't think it is rather a large leap from a sentence of twenty years to one of death. Number 568 MR. HAVELOCK responded he wasn't particularly bothered by the difference between the possibility of a twenty year sentence and one of death. It does remind him of how much he is bothered to see the cost of the justice system going up and up and up. His theory was that every time one part of the criminal justice system gets a little more money, you have to give money to the other parts of the criminal justice system, but he thinks each part should get a little less money. It seemed to MR. HAVELOCK that the essence of fairness for defendants is in the balance of funds within the Court System, not the total sum of the defender's budget. Number 599 SENATOR HALFORD reminded people the legislature does not set the budget for the Public Defender Agency, but that the Court System sets their budget; the legislature only supplements the Public Defender Agency's budget. SENATOR TAYLOR asked MR. HAVELOCK to look over the legal opinion by JACK CHENOWETH regarding the bill. An UNIDENTIFIED SPEAKER noted that there was also a question of constitutionality regarding Section 12 and asked MR. HAVELOCK to review HJR 43 in relation to amending Section 12. SENATOR TAYLOR thanked MR. HAVELOCK once again for his testimony and called the next witness, MARIE JOSEPH, who stated she was not a victim, but she felt that many victims are not seeing justice done. She thought it was time to pass a capital punishment law, and the legislature could pass laws that would make capital punishment more cost effective. (It appears that TAPE 4 ended before MS. JOSEPH was finished testifying.) TAPE 93-63, SIDE A Number 001 (It is obvious that TAPE 5 was not started until part way through this witness' testimony.) ALAN BARNES from the University of Alaska, Anchorage said the Justice Center would offer to answer those questions objectively. He said he was familiar with the SPEKALINK situation and also with the NELSON/POGENY case. SENATOR TAYLOR called the next witness, DIANE SCHENKER, from the Department of Corrections, who had several points she wanted the committee members to consider. The first one would be to add the term "probation officer" to the list of other terms used to describe peace officers, or simply use the term "peace officer" consistently to describe all these positions. She said another option would be to use the term "correctional employees." Secondly, MS. SCHENKER asked the committee to consider not using hanging as an option in carrying out a sentence of capital punishment. She said it is difficult and more expensive than other types of execution. Number 053 MS. SCHENKER also informed the committee that the fiscal note had been dramatically revised from the previous year, because the department made the erroneous assumption that had these people not been sentenced to death, they simply would not have existed in the system. In fact, had they not been sentenced to death they most certainly would still have had a fiscal impact on the system. The fiscal note has been revised to show that impact. MS. SCHENKER claimed there is no space in the correctional system for the next person sentenced to ninety-nine years in prison, and in fact the prison system is 130 persons over capacity. MS. SCHENKER said, with or without this bill, more space for prisoners will need to be either contracted or built. She stated that there would be no difference in the housing of inmates on death row and the housing of other comparably classified inmates - other than the last twenty-four hours before the execution. SENATOR DONLEY asked MS. SCHENKER to clarify where she got her information on how death row prisoners are housed. Number 092 MS. SCHENKER told SENATOR DONLEY that she had talked to officials in the State of Washington and to persons who have worked on death row in both Washington and California. SENATOR DONLEY answered that he was more concerned with the safety of other prisoners and correctional officers if criminals, sentenced to capital punishment, were housed with the general prison population. He asked MS. SCHENKER if it wouldn't be preferable to house persons on death row separate from other prisoners. MS. SCHENKER noted that all prisoners, regardless of the reason for incarceration, are segregated at the beginning of their stay. She said the incentive for prisoners to behave is in their having access to television, telephones, etc. MS. SCHENKER was asked if the agencies coordinated their work on fiscal notes, and she responded that a meeting had been scheduled for all agencies to get together following the committee meeting. She said she had talked briefly with the Office of Management and Budget regarding her fiscal note, and though it was agreed her fiscal note did not clash with anyone else's, that was as far as the discussion went. She commented that a lot of assumptions must be made in order to prepare a fiscal note for this legislation, and it therefore may be rather arbitrary. Number 145 SENATOR TAYLOR thanked MS. SCHENKER and called the next witness, CATHY KAINER, who testified she has personal knowledge of the financial cost of the death penalty, having worked in Texas while the death penalty was used. She believed capital punishment cases tie up the justice system, causing delays at all levels. She said the effect the death penalty had on the judicial system was the best argument for abolishing the death penalty. MS. KAINER thought resources could be better used in the prevention crime, rather than spending millions of dollars trying to put a few people to death. She stated that by instituting capital punishment, we are moving backwards from the rest of the world. Most countries in the world are moving towards abolishing the death penalty. MS. KAINER listed a number of countries and the dates on which they abolished the death penalty in those countries. She said we needed to ask ourselves how other criminal justice systems work, since other countries don't seem to be suffering from the same high rate of crime as the United States. Number 199 SENATOR TAYLOR thanked MS. KAINER for her patience and called the next witness, JACK KEANE, who stated he has always been opposed to the death penalty, particularly in Alaska, which he has always considered to be ahead of the other states in modern, clear, scientific thinking. MR. KEANE quoted from the constitution, "Life, liberty, and the pursuit of happiness, we hold those rights to be inalienable." He said somehow or other we've ended up with a supreme court that says, "Well, in these special cases we can sort of skip that provision." MR. KEANE said he believes that capital punishment is unconstitutional, and hopes the State of Alaska won't join Texas and South Africa in instituting a death penalty. He questioned whether it would be practical, considering we may only have one execution every one to two years, and whether it would really make a difference in terms of protecting the citizens of the state from violent criminals. Number 276 MR. KEANE did not think the justice system in Alaska works well enough to entrust it with the death penalty. He claimed he has seen things go wrong in the system, and it shouldn't have the power to impose the death penalty. SENATOR TAYLOR thanked MR. KEANE for his patience in waiting to testify and called the next witness, LISA RIEGER from the UAA Justice Center, who announced to the committee she was speaking from the point of view of an attorney who has tried a death penalty case. She said the process of trial and sentencing in death penalty cases is extremely costly, and she was not sure that anything would be gained by having the death penalty. Number 334 SENATOR TAYLOR thanked MS. RIEGER and called the next witness, FRANK CAHILL, who told the committee that he opposed the death penalty. He said he thinks there is a significant chance of convicting the wrong person, and he feels it is uncivilized. MR. CAHILL suggested we don't cut of people's hands to stop them from snatching purses, etc. He advocated, as MR. BURNS does, life sentences without possibility of parole. MR. CAHILL'S final reason for opposing the death penalty was because he thinks there is a chance that capital punishment would be applied unfairly, and he doesn't want to be part of a system that treats anybody unfairly. Number 383 SENATOR TAYLOR called the next witness. ARTHUR E. CURTIS testified it would be a shame to pass a law instituting capital punishment. He stated that the statistics show very clearly that capital punishment is not a deterrent. He said that all the faults of the judicial system are magnified when you get to the level of capital punishment, and that capital punishment cases put too much sustained pressure on everyone involved in the case: the jury, the prosecutors, and the justices. MR. CURTIS told the committee that it would also be a huge expense to the system. He thinks that passing a capital punishment law would only constitute a symbolic resolution of the problem of violent crime, and would not address the real causes and solutions. Number 435 MR. CURTIS offered a suggestion to the committee as part of the solution to the problem of violent crime, which would be to spend more money on drug rehabilitation centers. He thought it was pathetic that our society is looking for a violent solution to violence. SENATOR TAYLOR called the next witness, DAVID DOLESE, who read a written statement to the committee regarding an experience he had shortly before the end of World War II in which the army division of which he was a part surrounded and liberated a German concentration camp in Austria. He said that the terrible things he saw in the concentration camp convinced him that when governments decide to execute their own people, mankind's dark and evil side emerges in a fearful manner. DR. DOLESE continued reading his statement, describing how he thought a justice system should function. He said that execution does not have to be used to reach the goal of protecting law-abiding citizens from violent criminals. He suggested that capital punishment smacks of vengeance and should not be part of an ideal government's actions - that government should be above such emotional responses. Number 511 DR. DOLESE compared legalized execution as being on the same path as the torture and extra-judicial executions that occur in other countries. He urged the committee to not debase themselves by embracing this easy way out. SENATOR TAYLOR asks DR. DOLESE if he was also opposed to the war crimes trials that occurred after WWII and the results of those trials. DR. DOLESE replies that he was not opposed to the trials being held or to the executions at the time they occurred. SENATOR TAYLOR thanked DR. DOLESE for his testimony and called the next witness, RON DAILEY, who stated he was speaking in opposition to the death penalty legislation. He agreed with most of the reasons given by previous witnesses, but would confine his testimony to the moral question of whether we should use our courts to carry out executions? MR. DAILEY also thought it is a most uncivilized act. He claimed he was not soft on crime, but believed that if someone commits a murder, that person should be put in prison for the rest of their life without the possibility of parole. He said since that view is more stringent than the current laws, he cannot be considered soft on crime. Number 559 SENATOR TAYLOR thanked MR. DAILEY for his testimony and for being patient in waiting to testify. He then called the next witness, CHARLES E.MCKEE, who said he has studied what the Bible says regarding capital punishment, and he quoted several passages from the Bible. He noted the legislation before the committee related to the judicial and financial aspects of capital punishment. He also explained that both Christianity and commerce are a part of common law. SENATOR TAYLOR acknowledged that MR. MCKEE was discussing interesting debates, but asked MR. MCKEE to stay on the topic. Number 633 MR. MCKEE asked SENATOR TAYLOR to allow him to make his point and accused the people around him of diverting his attention from the subject matter. He then mentioned a report which he was willing to hand out to the committee of what OPEC has done to our society. SENATOR TAYLOR advised MR. MCKEE this hearing was not about OPEC. CHARLES MCKEE says he has an interest in resolving heinous crimes in our society because there has been an attempted murder on his life. He mentions that a U.S. marshall tried to instigate an attack him on October 18th after he found an indictment on JUDGE HOLMES. MR. MCKEE described numerous attacks on his person. Number 685 SENATOR TAYLOR acknowledged that MR. MCKEE probably has some great points on other subjects and that he would enjoy listening to them sometime, but if MR. MCKEE wouldn't stick to the legislation before the committee, he would leave. MR. MCKEE continued his previous testimony, saying he opposed the legislation regarding capital punishment primarily because it recognized the monetary system in operation in the U.S. Number 723 SENATOR TAYLOR thanks MR. MCKEE for his testimony and asks if there was anyone one on the teleconference network who would like to testify. TAPE 93-63, SIDE B Number 001 Next to testify was CONSTANCE GRIFFITY, who agreed with much of the testimony expressed by others opposed to the death penalty. She has been a member of the ACLU for fifty years, has studied the issue of the death penalty, and believes it has been used disproportionately to punish minorities. She was concerned that this would also happen if the death penalty was implemented in Alaska. She agreed the money would be better spent controlling the causes of violence. She believed the death penalty itself is by definition premeditated murder. She expressed a hope that the committee would consider all that has been said today regarding whether the death penalty really does serve our needs. She said HJR 43 makes sense to her; she does not believe victims should have to wait years and years and years for restitution. Number 047 SENATOR TAYLOR thanked MS. GRIFFITY for her testimony and asked if there was anyone else on-line who would like to testify. LIZ DODD testified she was opposed to the death penalty for a number of reasons. She thought by implementing a death penalty, Alaska would be repeating the mistakes of other states. She said capital punishment would be a drain on public resources with no measurable deterrent effect. She claimed not all families of victims of violent crimes were in favor of capital punishment, and Alaska's justice policies should be driven by prevention of crime, not by retribution. MS. DODD cited a passage from the Alaska Constitution supporting her belief that capital punishment was unconstitutional. She said lives built on child abuse and neglect, alcohol and drug abuse, domestic and culturalized violence are lives which all too often end in tragedy. She said the state needs to address violence where it begins in people's lives, rather than adding on one more violent ending. Number 080 LIZ DODD observed that support for the death penalty assumes that the justice system in Alaska is working without discrimination, and the state is somehow above error. The death penalty is uncorrectable in situations in which an error occurs. MS. DODD noted the titles of two books in which the committee might be interested: In Spite of Innocence and Dead Man Watching. SENATOR TAYLOR thanked MS. DODD for testifying and called the next witness, RON REED, who expressed his concern that implementing the death penalty in Alaska would do nothing but polarize the state, increase the cost of our criminal justice system, and sooner or later culminate in the judicial murder of someone wrongly convicted of a crime. He said past experience with the death penalty in other states found an increase in violent crime during the time in which capital punishment was used. MR. REED said violence begats more violence, innocent people would undoubtedly be executed, and the composition of inmates on death row would probably be made up of a disproportionate number of Alaska's Native people and other people of color. Finally, the state would incur the high cost associated with the implementation and maintenance of a death penalty. Number 148 SENATOR TAYLOR thanked MR. REED for his testimony and requested anyone who read from written statements to please give a copy to the committee for their files. SENATOR TAYLOR called the next witness. BILL GLUDE said he was speaking in opposition to the death penalty and was horrified the possibility of implementing a death penalty in Alaska was being considered. He appraised the death penalty as being premeditated and the deliberate killing of Alaskan citizens by our state government. He does not believe the problem of violent crime can possibly be solved by committing more murder in the name of the state. MR. GLUDE stated that people who commit violent crime are not thinking clearly about the consequences, don't care about the consequences, or are intoxicated, and therefore would not be deterred by the possibility of being sentenced to death. He concludes by asking the committee members to consider how each of them would feel if anyone were to be wrongly executed as a result of their actions on this legislation. He commented there are no easy solutions. Number 188 SENATOR TAYLOR thanked MR. GLUDE for his testimony and asked if there were any more people in Juneau who wished to testify. AMY PAIGE stated for the committee that she was opposed to capital punishment on moral and religious grounds and believes it is no different from the crimes it seeks to punish. She said it was morally wrong for the state to enact laws based on revenge for wrongs committed. MS. PAIGE said since the laws of our country state we must regard all people as equal to one another, there was no justification for the distinctions set forth in the legislation before the committee that would recommend the death penalty based on who the victim of the crime was. She said this aspect of the legislation was unconstitutional. Number 210 SENATOR TAYLOR thanked MS. PAIGE for her testimony and called for witnesses from Soldotna. DAVID RICHARDS informed the committee that he is definitely in favor of the death penalty. He based his conviction on moral and religious grounds because he feels that death is proper justice for a person who willingly murders another person. MR. RICHARDS did not think that deterrent should be an issue, but that capital punishment was a matter of proper justice. He was in favor of putting an advisory vote relating to the implementation of capital punishment on the ballot so that the people of the State of Alaska can vote on the issue. SENATOR TAYLOR thanked MR. RICHARDS for his testimony and noted for the record that written testimony was received from JOHN SHAFFER, KEVIN MCGEE, MARY GEDDES, and MATTHEW NICOLAI. SENATOR TAYLOR also noted for the record that three members of the House and one member of the Senate stayed for this meeting until 6:07 p. m. As there was no one else waiting to testify, SENATOR TAYLOR thanked all the participants for their testimony, their patience, and adjourned the meeting.