Legislature(1997 - 1998)
03/10/1997 01:39 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 10, 1997 1:39 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 17 Relating to challenging the environmental and economic integrity of Alaska timber as Christmas decor for the United States Capitol. PASSED SJR 17 FROM COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS SENATE BILL NO. 60 "An Act providing for an advisory vote on the issue of capital punishment." PASSED SB 60 FROM COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS PREVIOUS SENATE COMMITTEE ACTION SJR 17 - No previous Senate committee action. SB 60 - No previous Senate committee action. WITNESS REGISTER Charles Campbell 3020 Douglas Highway Juneau, AK 99801 POSITION STATEMENT: Opposed to SB 60 Dean Guaneli Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Opposed to SB 60 ACTION NARRATIVE TAPE 97-19, SIDE A Number 000 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:39 p.m. Senators Taylor, Miller and Parnell were present. The first order of business before the committee was SJR 17. SJR 17 NO ALASKA CHRISTMAS TREES FOR FED CAPITAL MR. JOE AMBROSE , staff to Senator Taylor, sponsor of SJR 17, read the following sponsor statement into the record. SJR 17 was introduced to call national attention to the callousness of the Clinton Administration in asking the people of Southeast Alaska to provide Christmas trees from the Tongass National Forest to decorate the federal capital. This resolution recognizes that what would normally be an honor is instead an affront to the working people of Southern Southeast, thousands of whom have been made jobless by the anti-timber policies of the Clinton Administration. To further compound this insult, the Clinton/Gore Administration is asking school kids, Boy Scouts, Girl Scouts, timber-dependent communities and their elected leaders to pay the cost of participating in what can only be termed an insensitive farce. This is the same administration that ignored the efforts of the Alaska congressional delegation and the Alaska State Legislature to protect the livelihoods of the workers, families and towns of the Tongass. This is the same administration whose policies led to the closure of the region's two pulp mills and largest saw mill, costing thousands of jobs. The three US Forest Service supervisors of the Tongass National Forest say the opportunity to provide trees to decorate the nation's capitol is "a great moment for Alaska." SJR 17 makes it clear the Twentieth Alaska State Legislature considers this "opportunity" to be insensitive, callous and insulting. It calls upon President Clinton and Vice President Gore to find another source for its 1998 Christmas decorations. Number 051 CHAIRMAN TAYLOR noted the federal legislation that resulted in the Ketchikan Pulp Corporation (KPC) closure, as well as the Sitka pulp mill and Wrangell sawmill, contained two options; one allowed a modest amount of logging to continue. President Clinton chose the other option which prevents families from continuing to work in the timber industry, and by doing so, expended $110 million of taxpayer dollars sent to Southeast Alaska in the form of economic disaster relief. Since SJR 17 was filed, the U.S. Government has settled the KPC's claim for wrongful breach of the 50-year contract for $140 million, $25 million in timber stumpage credits, and $5 million in additional credits; therefore the total cost of the closure, caused by the Clinton Administration has been $280 million. Another pending lawsuit out of Sitka may cost U.S. taxpayers $500 million. None of that money will benefit the timber-dependent families who lost their jobs. Chair Taylor noted a similar resolution passed the House that morning by a vote of 34 to 5. CHAIRMAN TAYLOR noted Senator Ellis' arrival. Number 110 SENATOR MILLER moved SJR 17 out of committee with individual recommendations. There being no objection, the motion carried. SB 60 ADVISORY VOTE ON CAPITAL PUNISHMENT JOE AMBROSE , staff to Senator Taylor, sponsor of the measure, read the following sponsor statement into the record. Senate Bill 60 is intended to seek the advice of the voters of Alaska on the controversial issue of capital punishment. Passage of SB 60 will not impose the death penalty in Alaska. It simply places on the ballot the question: "Shall the Alaska State Legislature enact a law providing for capital punishment for murder in the first degree and establishing procedures for the imposition of capital punishment that are consistent with the United States Constitution as interpreted by the United States Supreme Court?" For years opinion poll after opinion poll have reflected the desire of the people of Alaska to have the death penalty available as an option in this state. SB 60 seeks to employ the ultimate poll, that of the ballot box, in a non-binding vote. Given the option of a death penalty or life in prison without parole, 550 Alaskans polled statewide in March, 1996, favored the death penalty by a 62% margin, with 35% choosing life without parole. It is especially significant that only 5% of the respondents said they were undecided. Support for the death penalty crossed all demographic lines, including location, gender, age, party affiliation, employment status and length of time in the community. There are those who argue that the people of Alaska are somehow unqualified to render advice on this issue. They argue that the ballot question itself is too "simplistic." Alaska has one of the youngest, best educated and well-read populations in the nation. Judging from the campaign already being mounted against SB 60, the organized groups opposed to capital punishment will most certainly conduct a vigorous campaign when this issue reaches the ballot. Alaskans will cast votes based on information, not emotion. Issues such as the cost and effectiveness of capital punishment will be part of any campaign on the ballot question and will need to be explored at length if the voters advise the 21st Alaska State Legislature to pursue this issue. For now, we are talking about placing an advisory vote on the ballot, at a cost of approximately $3,000. MR. AMBROSE suggested, although several fiscal notes have been submitted to the committee, the only valid one is from the Division of Elections. It contains the cost of placing the question on the ballot. If the issue is approved and passed by the Twenty-first Alaska Legislature, the other fiscal notes may reflect the costs of establishing a death penalty. Number 165 MR. CHARLES CAMPBELL discussed his 47-year background in criminal justice matters. While serving as the Director of Corrections he became deeply concerned about the death penalty while researching and drafting a position paper on the subject for DHSS in 1981. After investigating the death penalty thoroughly he became, and continues to be, adamantly opposed to it and believes it to be a deplorable, indefensible relic of the Dark Ages. Rather than requesting advice from constituents, constituents deserve legislators' considered wisdom and advice to them. The majority of the voters of the State hold their views based on serious misinformation, especially in regard to current sentences for first degree murder and the costs and deterrent factor of the death penalty. MR. CAMPBELL stated the death penalty does not deter those who are most likely to commit violent crimes and one of the most comprehensive studies shows the death penalty is more likely to incite, rather than deter, crime. It is the most expensive and least cost-effective of criminal sanctions; has the potential for hampering law enforcement and criminal prosecution; is destructive to the families of murder victims and requires them to remain in a state of bitterness and uncertainty during long years of appeals; and is racially and culturally biased with the potential to arouse divisive, bitter, and destructive conflict among the people of Alaska. More than 3,000 people are on death row in the United States today and another 200 people are sentenced to death each year. There is no way the number executed each year will approach that number. Correctional systems nationwide have a ticking time bomb created by the exorbitant cost of providing additional manpower and special confinement required by death row inmates. Since 1976, 300,000 willful homicides have been prosecuted; approximately 360 people have been executed during that period. The one murderer in 1,000 who was executed was, most likely, not the most deserving. Death penalty cases are not necessarily chosen on the basis of how heinous and terrible the crime is; rather by how expediently the prosecution might go forward, or for political, financial and/or defense considerations. The argument of "just desserts" is not valid. MR. CAMPBELL continued. With very few obscure exceptions, no other country in the western world tolerates the death penalty. The Territorial Legislature of Alaska abolished the death penalty almost 40 years ago and Alaska now has extremely tough criminal sanctions. The typical sentence for aggravated first degree murder is 99 years without parole. Studies show that 75 to 80 percent of Americans do not oppose the death penalty, but national studies show that when given the option of life without parole, the 75-80 percent majority is reduced to a minority. MR. CAMPBELL discussed comparative data regarding death penalty laws and crime rates in other states. He also referred to the costs associated with the death penalty, and criticized the ballot question contained in SB 60 because it is an unfair question to present to seriously misinformed voters. He noted death penalty opponents do not have adequate resources to mount a campaign to fully inform voters. Mr. Campbell expressed concern that SB 60 is part of a strategy to seduce legislators who are troubled by this issue into making what appears to be an easy vote, and that this bill is designed to get the "camel's nose under the tent." Number 319 CHAIRMAN TAYLOR commented he believes the State of Florida was correct in executing Ted Bunde and that the State of Washington adopted the death penalty after releasing a murderer to a work program, he then murdered three more people. Senator Taylor discussed the Adam Walsh case, and noted the murderer had been released by the State of Texas after murdering his mother and father, he then went on to kill another 35 to 40 people before being apprehended. MR. CAMPBELL responded he could not agree more that legislation to prevent such people from being released is important, but he does not agree execution is the answer. He noted the State of Florida was also influenced by the fact that there was a 90 percent chance that James Adams was innocent, yet he was executed. Other studies show that 23 people who were executed were innocent. He said moral outrage is justified toward murderers, but people must think carefully about their responses to that outrage. Number 358 CHAIRMAN TAYLOR asked Mr. Campbell to provide the committee with a copy of the report he cited about the 23 innocent people who were executed, and noted a judge in Michigan has done a full review of those cases and discounted the report. MR. CAMPBELL said the information was in the Stanford Law Review and offered to provide a copy to the committee. Mr. Campbell added there is no indication the death penalty is an effective deterrent against crime and a recent national survey of chiefs of police revealed they consider the death penalty the least effective of all criminal sanctions. He repeated there are other ways to prevent people like Ted Bunde from being released from prison. Number 385 SENATOR MILLER said, assuming the death penalty is abolished in the United States, and the 200-per-year new death row inmates get life sentences instead, those prisoners will be putting stress on the prison system in different ways. MR. CAMPBELL noted 46 or 47 people were executed in 1996. The addition of that number of prisoners in the system is insignificant. Prisoners serving life sentences without parole are typically easy to manage and usually accept a job to pay restitution. Death row prisoners, however, are a huge administrative problem. They require 24-hour supervision because of the likelihood of suicide, and many of those prisoners appeal their cases. CHAIRMAN TAYLOR asked the percentage of death row inmates who had murdered previously. MR. CAMPBELL did not have that data, but suspected a fairly significant number had. CHAIRMAN TAYLOR believed that 9 to 15 percent were previously convicted for murder, released, and murdered again. MR. CAMPBELL thought most people sentenced to death have previous violent crime records. Number 420 DEAN GUANELI , Assistant Attorney General, Department of Law, testified in opposition to capital punishment for four reasons. First, capital punishment has a disproportionate impact on minorities. Nationwide, non-whites are executed at a higher rate than whites. Even in Alaska's territorial days, natives and minorities were executed at a much higher rate. CHAIRMAN TAYLOR asked Mr. Guaneli if he has any evidence to indicate there is a proportionally higher rate of executions within a given ethnic group, compared to the number of murders within that group. MR. GUANELI said studies have been conducted that compare how capital punishment is imposed against minorities depending on the ethnicity of the victim. Those studies indicate when a racial mix between the defendant and the victim exists, the death penalty is imposed at a higher rate. CHAIRMAN TAYLOR read the following excerpt from an article by Dudley Sharp, written in the Texas Exchange (March 10, 1997): "A crucial point is that capital murders and non-capital murders are two distinct categories. Whites are, overwhelmingly, the primary victims in violent crimes relevant to capital cases. When combining that fact with the level of aggravation of the murder and the criminal background of the murderer, there is no race-of-the- victim effect showing a juror or prosecutor preference to white victims in capital cases. A reading of the appellate record finds that this fact was established conclusively by the federal courts in 1983, 1985, and 1987 in McClesky v. Georgia and was reinforced by Smith College professors Rothman and Powers in their extensive 1994 study." Chair Taylor explained Mr. Sharp's article was in response to the American Bar Association's resolution calling for a moratorium on death penalty executions. Mr. Sharp noted, in his research, he could find no studies that verify racial disparity. Chair Taylor asked Mr. Guaneli to provide information to back up his statement. MR. GUANELI agreed to do so. MR. GUANELI said the second reason the Department of Law opposes capital punishment is because the criminal justice system is not perfect, and as Mr. Campbell indicated, innocent people have been executed. Once an execution takes place, there is no push for a thorough investigation of the case. With the advent of DNA testing techniques, it has been discovered that a number of people convicted of crimes, primarily rape, were later determined to be innocent after evidence underwent DNA testing. Number 489 SENATOR MILLER commented those same techniques can now be used to provide conclusive evidence of guilt or innocence prior to conviction. MR. GUANELI responded DNA techniques, when such evidence exists, provide a much higher confidence in the result, but the cases he referred to involve people convicted years ago on eyewitness accounts, and years later a piece of evidence tested for DNA proved them innocent. Those situations make for less confidence in cases where no DNA evidence exists. MR. GUANELI stated the third reason for opposition to capital punishment is that a death penalty would tend to skew the case law that prosecutors have to work with. Death penalty cases are treated differently by the courts and the rulings on evidence and procedure are scrutinized much more carefully. The rulings that come out of death penalty cases tend to get applied in all other cases in the criminal justice system, creating difficulties in obtaining convictions in other types of cases. MR. GUANELI explained the fourth reason for opposition is the cost. An execution is expensive to carry out, and the entire legal process is lengthy. The fiscal notes that accompany the bill have been consistent in cost for many years, through several Administrations. CHAIRMAN TAYLOR again quoted Mr. Sharp's article: `The ABA and others cry "racism!" when there is no evidence of racism in the implementation of the death penalty since Furman v. Georgia in 1972. In those cases where the race/ethnicity of the murderer is known, 56 percent of those executed since 1977 have been white, 38 percent black. Yet, blacks have committed 47 percent of the murders, whites 38 percent. Furthermore, whites are executed 15 months quicker than blacks. In fact, since 1929 white murderers have been more likely to be executed than black murderers.' Chair Taylor stated, if the figures in the article are accurate, an inverse discrimination exists in relation to the death penalty. MR. GUANELI replied he was not prepared to dispute particular numbers or the article but would provide the committee with statistics at a later date. MR. GUANELI concluded by saying, "Even if we overlook the objections to the death penalty, then at least shouldn't capital punishment stop murders from occuring? As Mr. Campbell indicates, it doesn't. Studies show there is no deterrence to murder. First- degree murder in Alaska is treated severely. First-degree murderers in Alaska receive sentences, on average, exceeding 70 years in Alaska. The kinds of cases that you mentioned in response to Mr. Campbell's testimony, the kinds of really horrible cases where someone has committed a murder in one state, then released and committed another murder - that doesn't happen in Alaska. With average sentences of 70 years, someone's going to serve 40 or 50 years. They're going to be released in their 60s or 70s, after a point in time when they are a danger to the public but before a point in time when they start running up big medical bills for the Department of Corrections. Those kinds of things, I do not believe, at least in our experiences, would happen in Alaska with the kinds of sentences that murderers receive, and I would reiterate Mr. Campbell's point that the decision of the Territorial Legislature to do away with capital punishment in Alaska was the correct one. In terms of the advisory vote on this matter, I think that asking a single question only tends to deprive the voters of additional choices that they might respond to. I'm not saying that voters are not intelligent or not capable of making decisions based on adequate information, but what I am saying is I guess I have to disagree with my friend, Mr. Ambrose, who said that voters will vote based on information, not emotion. I think there's a tendency for voters to vote on information, to vote based on their recollection of the kinds of really outrageous cases that you mentioned. Alaska has had its Ted Bundes. His name was Robert Hanson - he killed a number of prostitutes in Anchorage several years ago. He's now serving a multiple 99-year sentence. We have had our really outrageous murders of little children, where sexual offenses were involved. Kirby Anthony is one name that springs to mind - again, someone serving multiple 99-year sentences. These people will never see the light of day but the advisory vote may very well be taken as a mandate by the Legislature when, in fact, I don't believe the voters can adequately consider the kind of information that we've been discussing today - the kind of information where there is some dispute over numbers involving the fair application of the death penalty, the effectiveness of the death penalty, the cost of the death penalty. I think those matters are something that the Legislature is particularly equipped to deal with through the give and take of testimony like this. That concludes my testimony." Number 575 SENATOR PARNELL commented the debate on SB 60 is whether or not to have an advisory vote - not whether or not to establish capital punishment. He said the opposition he has heard to an advisory vote is that asking a single question deprives voters of the information they need to make an intelligent choice. He asked Mr. Guaneli if the Administration has proposed language for an advisory vote, or additional items to be added to existing language. MR. GUANELI replied voters do not have the same level of information available to the Legislature, and the vote could tend to be swayed by the most recent headline in the Anchorage Daily News about the most recent murder that may have occurred. It's a matter of whether the vote is based on information or emotion and with this particular issue, he believes votes tend to be based on emotion. He said the Department of Law will consider providing amended language to the vote, but is not prepared to do so at this time. TAPE 97-19, SIDE B SENATOR PEARCE asked where prisoners with multiple 99-year sentences are serving their sentences. MR. GUANELI answered most are housed at either Spring Creek or in Arizona. SENATOR PEARCE said legislators have been lead to believe those same prisoners are the ones who have caused many internal problems in the prison system, and the cost of incarceration for those prisoners is higher than average. She questioned Mr. Campbell's assumption that prisoners with life sentences are easier to manage and are our model prisoners. Senator Pearce commented that although capital punishment is an emotional issue, the emotional impact on a victim and victim's family must be considered too. She agreed the electorate responds to headlines, but questioned whether that is wrong. MR. GUANELI replied if people vote in response to headlines, then the editors of newspapers tend to set public policy, and hard decisions need more in-depth review than what is provided in headlines. CHAIRMAN TAYLOR said he does not know of any group of offenders, anywhere in the world, whose cases receive the same exhaustive scrutiny that death row cases receive in the United States. New federal laws reduce some of the scrutiny but still require 17 major steps, and the appeals and reviews take, on average, 11 years. He questioned whether those cases would receive such an extensive review but for the death penalty. Prisoners with life sentences most likely do not receive that same level of scrutiny, so those prisoners who may be innocent will be kept in a jail cell for life. He asked what the criminal justice system should do when an aggrieved family member of a victim takes revenge when the offender is released. MR. GUANELI repeated since the average first degree murder sentence in Alaska is 70 years, the likelihood of vigilantism by the victim's family after decades have passed is remote. CHAIRMAN TAYLOR thanked Mr. Guaneli for the discussion. MR. GUANELI affirmed that the Department of Law is opposed to an advisory vote. SENATOR MILLER moved SB 60 out of committee with individual recommendations. Senator Ellis objected. The motion carried with Senators Pearce, Miller, Parnell, and Taylor voting "yea," and Senator Ellis voting "nay." CHAIRMAN TAYLOR adjourned the meeting at 2:35 p.m.