Legislature(1993 - 1994)

02/07/1994 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
  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            
 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                
  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.                                                            
 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                 
 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                
 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.                                               
 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                  
 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              
 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                  
 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             
 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             
 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             
 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                
 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               
 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           
 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            
 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                
 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              
 SENATOR TAYLOR asked if MR. WALLERI thought it was racial bias in             
 his opinion or if the Natives were committing that many more                  
 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            
 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               
 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                 
 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               
 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           
 There being no further business to come before the committee, the             
 meeting was adjourned at 3:20 p.m. by SENATOR TAYLOR.                         

Document Name Date/Time Subjects