02/16/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB58 | |
| SB72 | |
| SB11 | |
| SB39 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 58 | TELECONFERENCED | |
| += | SB 72 | TELECONFERENCED | |
| *+ | SB 11 | TELECONFERENCED | |
| + | SB 39 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 16, 2011
1:30 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 58
"An Act increasing the number of superior court judges
designated for the third judicial district; and providing for an
effective date."
- MOVED SB 58 OUT OF COMMITTEE
SENATE BILL NO. 72
"An Act relating to the crimes of stalking, online enticement of
a minor, unlawful exploitation of a minor, endangering the
welfare of a child, sending an explicit image of a minor,
harassment, distribution of indecent material to minors, and
misconduct involving confidential information; relating to
probation; and providing for an effective date."
- HEARD AND HELD
SENATE BILL NO. 11
"An Act relating to the commission of a crime when the defendant
directed the conduct constituting the crime at the victim based
on the victim's race, sex, color, creed, physical or mental
disability, sexual orientation, gender identity, ancestry, or
national origin."
- HEARD AND HELD
SENATE BILL NO. 39
"An Act ratifying an interstate compact to elect the President
and Vice-President of the United States by national popular
vote; and making related changes to statutes applicable to the
selection by voters of electors for candidates for President and
Vice- President of the United States and to the duties of those
electors."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 58
SHORT TITLE: INCREASING NUMBER OF SUPERIOR CT JUDGES
SPONSOR(s): RULES BY REQUEST
01/21/11 (S) READ THE FIRST TIME - REFERRALS
01/21/11 (S) JUD, FIN
02/02/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/02/11 (S) Heard & Held
02/02/11 (S) MINUTE(JUD)
02/16/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 72
SHORT TITLE: CRIMES INVOLVING MINORS/STALKING/INFO
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/26/11 (S) READ THE FIRST TIME - REFERRALS
01/26/11 (S) JUD, FIN
02/07/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/07/11 (S) Heard & Held
02/07/11 (S) MINUTE(JUD)
02/16/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 11
SHORT TITLE: HATE CRIMES
SPONSOR(s): DAVIS
01/19/11 (S) PREFILE RELEASED 1/7/11
01/19/11 (S) READ THE FIRST TIME - REFERRALS
01/19/11 (S) JUD, FIN
02/16/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 39
SHORT TITLE: U.S. PRESIDENTIAL ELECTION COMPACT
SPONSOR(s): FRENCH
01/19/11 (S) PREFILE RELEASED 1/14/11
01/19/11 (S) READ THE FIRST TIME - REFERRALS
01/19/11 (S) STA, JUD, FIN
02/01/11 (S) STA AT 9:00 AM BUTROVICH 205
02/01/11 (S) Heard & Held
02/01/11 (S) MINUTE(STA)
02/10/11 (S) STA AT 9:00 AM BUTROVICH 205
02/10/11 (S) Moved SB 39 Out of Committee
02/10/11 (S) MINUTE(STA)
02/11/11 (S) STA RPT 1DNP 3NR
02/11/11 (S) DNP: GIESSEL
02/11/11 (S) NR: WIELECHOWSKI, PASKVAN, MEYER
02/16/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Provided a continued sectional analysis of
SB 72.
TONY NEWMAN, Social Services Program Officer
Division of Juvenile Justice
Department of Health and Social Services
POSITION STATEMENT: Testified in support of SB 72.
QUINLAN STEINER, Public Defender for the State of Alaska
Public Defender Agency
Anchorage, AK
POSITION STATEMENT: Commented on the unintended consequences in
section 7 of SB 72.
THOMAS OBERMEYER, staff to Senator Davis
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Introduced SB 11 on behalf of the sponsor.
SLADE MARTIN, representing himself
POSITION STATEMENT: Testified in support of SB 11.
SHAYLE HUTCHISON, Board Member
Alaskans Together for Equality
POSITION STATEMENT: Testified in support of SB 11.
NELSON ANGAPAK, Senior Vice President
Alaska Federation of Natives
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 11.
KATE BURKHART, Executive Director
Alaska Mental Health Board
Department of Health and Social Services
Juneau, AK
POSITION STATEMENT: Spoke to why the Alaska Mental Health Board
supports SB 11.
KELLI BURKINSHAW, Board Member
Alaskans Together for Equality
POSITION STATEMENT: Testified in support of SB 11.
JEFFERY MITTMAN, Executive Director
Alaska Civil Liberties Union
Anchorage, AK
POSITION STATEMENT: Testified that, as currently drafted, SB 11
is susceptible to a facial challenge.
WANDA GREENE, President
NAACP Anchorage
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 11.
ANDY MODEROW, Staff to Senator French
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided a sectional analysis of SB 39.
ACTION NARRATIVE
1:30:35 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:30 p.m. Senators McGuire,
Wielechowski, Paskvan, and French were present at the call to
order. Senator Coghill joined the committee soon thereafter.
SB 58-INCREASING NUMBER OF SUPERIOR CT JUDGES
1:31:22 PM
CHAIR FRENCH announced the consideration of SB 58 relating to
increasing by two the number of superior court judges. The bill
was discussed at length during the previous hearing, and public
testimony was taken and then closed. He solicited a motion.
1:32:21 PM
SENATOR WIELECHOWSKI moved to report SB 58 from committee with
individual recommendations and attached fiscal note(s).
There being no objection, SB 58 moved from the Senate Judiciary
Standing Committee.
At ease from 1:32 p.m. to 1:34 p.m.
SB 72-CRIMES INVOLVING MINORS/STALKING/INFO
1:34:01 PM
CHAIR FRENCH announced the consideration of SB 72. He asked Ms.
Carpeneti to continue the sectional analysis, starting with
Section 8.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL), said Section 8 is a conforming
amendment to clarify that the sexting provisions in Section 7
aren't included in the crime of harassment in the second degree.
1:35:15 PM
Section 9 makes two amendments to the crime of distribution of
indecent material to minors. First, it clarifies the culpable
mental state that the state must prove in order to convict a
person of the offense. It provides that the person must know
that the material he or she distributed depicts the prohibited
conduct. Second, it clarifies that if the minor to whom the
material is sent is under age 16, the person who sent the
material was reckless as to that circumstance.
SENATOR PASKVAN noted that the term "lewd" is included as an
adjective in this section to specifically describe "touching"
and "exhibition." He asked what the mental status is for "lewd."
MS. CARPENETI replied it would be the circumstance of
"reckless." The person would have to know that the material
included the "lewd" touching of a person's genitals, anus, or
female breast.
SENATOR PASKVAN said he didn't understand what the term "lewd"
means in that context.
1:37:55 PM
MS. CARPENETI replied that's a question for a jury; it's not
defined in the statutes.
SENATOR WIELECHOWSKI asked if the bill applies to cartoon
characters.
MS. CARPENETI answered no.
1:38:19 PM
CHAIR FRENCH noted a letter dated today from the American Civil
Liberties Union (ACLU) pointing out that there is a preliminary
injunction, on First Amendment grounds, against this section.
Mr. Mittman says that Section 9 of the bill would narrow AS
11.61.128(a) "to only criminalize the distribution of material
'harmful to minors' by an adult if the recipient is under 16
years old and the adult is reckless regarding the recipient's
age… ." Mr. Mittman goes on to say that the bill is an
improvement on the statute that was enjoined, but it would still
violate both the First Amendment and the Commerce Clause of the
U.S. Constitution. Senator French asked Ms. Carpeneti if DOL is
in communication with Mr. Mittman on this topic.
MS. CARPENETI replied they have been in communication with
Michael Bamberger, an attorney who is working with the litigants
in this case. She added that she had not been in communication
with Mr. Mittman, but she had spoken to him.
1:39:42 PM
CHAIR FRENCH said he wasn't inclined to ask the ACLU to write
the statute, but they did win an injunction so there has to be
some accommodation.
MS. CARPENETI said both sides have filed motions for a summary
judgment, but the court hasn't issued an opinion.
CHAIR FRENCH asked how long the motions have been pending.
MS. CARPENETI said she'd find out, but she believes they're
fairly recent.
SENATOR COGHILL asked if the amended language regarding
"reckless disregard for the age of the child" would be a second
line of proof.
MS. CARPENETI answered it would require the state to prove that
the child was under age 16 and the person distributing the
material was reckless as to that fact. "Reckless" is defined in
the statutes as knowing there is a high probability that the
person would be under age 16 and knowingly disregarding that
fact.
SENATOR COGHILL said he was trying to figure out why "reckless
regard" was used instead of "ignoring" or "disregard."
1:41:39 PM
CHAIR FRENCH explained that it's easier to prove than
"intentional."
MS. CARPENETI said this is the crux of the lawsuit. The argument
is that the state would have to prove that the person who is
distributing the material knows that the person is under age 16.
DOL uses the culpable mental state of "reckless disregard"
because it's a lower standard. However, it still requires the
state to prove that the person knew that there was a substantial
risk that the person was under age 16 and knowingly disregarded
that risk.
SENATOR COGHILL surmised that this is because it's so easy for
people to get false IDs.
CHAIR FRENCH said he believes it's less than that; you seldom
ask for identification from anyone you communicate with, but you
have a general idea of their age.
SENATOR WIELECHOWSKI asked why the court said this violated the
First Amendment.
MS. CARPENETI said she would follow up and provide that
information.
1:43:48 PM
MSL CARPENETI continued with the analysis. Section 10 adds two
new crimes to the criminal code dealing with misconduct
involving confidential information in the first and second
degrees. This is not specific to children but it fits with the
theme of using new technology to victimize people. She mentioned
merchants that ask for a driver's license and then use the
information, sometimes to commit a crime; and new technology
that collects personal identification and credit card
information from a person's satchel, backpack, or purse without
opening it.
MS. CARPENETI said that "confidential information" is defined as
"information that is defined as confidential by law." Responding
to questions, she agreed to provide a list of the things that
would be considered confidential, and suggested the committee
decide how broadly it wanted to define "confidential
information."
1:45:49 PM
SENATOR PASKVAN asked if there's a product on the market that
would shield any personal information that's inside a wallet or
purse.
MS. CARPENETI said she's heard that some women put a lead liner
in their purse, but she hasn't heard of anything else.
SENATOR MCGUIRE noted that she worked on legislation several
years ago that would inform consumers if RFID chips were used in
things like a Carrs card, but the bill didn't advance because of
wide-spread opposition. She asked if DOL had thought about the
scenarios in which that information would be obtained and if the
courts would be filled with prosecutions for this new crime.
MS. CARPENETI replied she'd certainly look at the minutes from
those hearings to make sure they'd thought through the different
scenarios.
1:49:23 PM
SENATOR WIELECHOWSKI asked if the bill could also classify as
confidential things involving biometrics, the methods of
identifying a person based on things like fingerprints or
retinal scans.
MS. CARPENETI said she would follow up, but the statutes do
identify certain health records as confidential.
Continuing with Section 10, she said the first degree provision,
which is a class A misdemeanor, would be taking the confidential
information and using it to commit a crime or to obtain a
benefit. She noted that the statutes define "benefit" rather
broadly.
Section 11 clarifies that a person may be prosecuted for online
enticement of a minor and for sending an explicit image of a
minor if the minor was in Alaska, even if the defendant was in
another jurisdiction at the time that he or she committed the
prohibited conduct.
1:51:02 PM
Section 12 amends AS 12.55.125(i), the sentencing statutes for
sex crimes, by conforming the terms of imprisonment for persons
who commit unlawful exploitation of a minor or online enticement
of a minor to the correct level in accord with the changes in
Sections 3-5 of the bill.
SENATOR PASKVAN suggested drafting the law to make it illegal to
be in possession of technology that is used for wrongdoing.
CHAIR FRENCH said it's like possession of burglary tools.
MS. CARPENETI said she'd have to think about it because it would
have to be a specific intent crime.
SENATOR PASKVAN opined that society should be most worried about
the people who have access to equipment that can get personal
information as they walk by you on the street. If they don't
have a legitimate reason for possessing this equipment, the
presumption would be that they're using it to steal information.
SENATOR MCGUIRE suggested using the Oregon law that prohibits
the possession of a radar detector as a model and including a
rebuttable presumption for proving that there's a legitimate
reason for possessing the equipment.
1:53:51 PM
SENATOR WIELECHOWSKI asked how "unlawful exploitation" is
defined on page 7, line 9.
MS. CARPENETI replied it's the crime that's in AS ll.41.455,
unlawful exploitation of a minor. Basically, it's the creation
of child pornography.
CHAIR FRENCH asked how often DOL prosecutes online enticement
and unlawful exploitation of a minor.
MS. CARPENETI replied there were 7 cases filed last year under
the unlawful exploitation of a minor statute and 4 cases filed
under the online enticement of a minor statute.
CHAIR FRENCH said he has some concern with enhancing the
penalties for crimes that are rarely prosecuted.
MS. CARPENETI responded that these cases are very serious and
shocking; Sergeant DeGraaf was prepared to testify in a House
committee about some of the cases that have been prosecuted.
1:56:27 PM
CHAIR FRENCH said he could not agree more that these are very
serious crimes.
MS. CARPENETI said it's DOL's position that the seriousness of
these crimes is ample justification of the penalties.
SENATOR COGHILL asked if these cases have other co-occurring
charges, like kidnapping.
MS. CARPENETI said most of the cases of child kidnapping also
have sexual assaults and she suspects that it would be the same
with these. She offered to follow up.
SENATOR MCGUIRE mentioned the three strikes law and asked
Senator French to clarify what he meant when he talked about
increasing the penalties.
CHAIR FRENCH said the section the committee was just discussing
incorporates these crimes into the three strikes scheme. He then
asked Ms. Carpeneti if under this bill a second offense for
unlawful exploitation of a minor would be an unclassified
felony, eligible for a 99 year sentence.
1:59:36 PM
MS. CARPENETI replied that would need to be stated in the
statute.
CHAIR FRENCH summarized that the first offense would be an A
felony, the second would be an A felony, and the third would be
the third strike.
MS. CARPENETI clarified that unlawful exploitation of a minor,
which is the creation of this material, is already in the felony
sentencing provisions, but online enticement of a minor was
somehow left out of the three strikes provision. Under this bill
it would be a class B felony for a person who is not required to
register as a sex offender.
CHAIR FRENCH commented that in Alaska transmission of child
pornography is horrifically and shockingly prevalent. The
resources that are being poured in and the level of activity
would suggest more than four prosecutions a year.
MS. CARPENETI said she hopes it will get better.
CHAIR FRENCH asked if the expanded subpoena power would be
included in this bill in the form of a committee substitute.
MS. CARPENETI answered yes; she knows the committee would be
interested in that.
MS. CARPENETI said Section 13 deals with probation officers. It
clarifies that while the commissioner of corrections provides
probation officers to the superior court for the active
supervision of a person on probation for felony offenses, it's
not required. The commissioner may, at his or her discretion,
also provide probation officers for the active supervision of
persons released for misdemeanor offenses.
Senator French opened public testimony.
2:04:08 PM
TONY NEWMAN, Social Services Program Officer, Division of
Juvenile Justice, Department of Health and Social Services
(DHSS), said DJJ is concerned about the way communications
technology and social media are outpacing the ability to
understand how they impact young people. Several of the offenses
that are the focus of SB 72 can be committed by unthinking and
impulsive youths who think it's little more than a prank, but
the consequences can be very long-term and damaging for victims.
DJJ appreciates that the governor and the Department of Law are
trying to get ahead of these issues before too many lives are
ruined.
Alaska has a juvenile justice system that recognizes that minors
should be managed differently than adults. The DJJ mission is to
hold youth accountable when they commit offenses, but at the
same time to provide opportunities to keep them from continuing
to make mistakes. The bill strikes a balance and allows DJJ to
appropriately respond to the juvenile given his/her risk to
reoffend and his/her needs. For example, the division could
refer a youth to a diversion program such as a youth court
without requiring them to go through formal court proceedings.
The exception is the increase in the charge class level for
unlawful exploitation of a minor. Class A felonies against a
person are known in the juvenile system as auto-waiver offenses;
youths age 16 and age 17 are referred directly to the adult
criminal justice system. Unlawful exploitation of a minor is a
serious offense, but DJJ believes that when a youth commits this
crime it is counterproductive to automatically waive him into
the adult system. DOL agrees and is working to craft an
amendment to address this issue.
2:06:50 PM
QUINLAN STEINER, Public Defender for the State of Alaska, Public
Defender Agency, said his comments would center on two topics
related to the unintended consequences in Section 7 of SB 72.
The first is the breadth and nature of who it covers.
Potentially couples who exchange photographs via email would be
in violation of the statute. It would also cover a broader
spectrum like grandparents who electronically send photos of
grandchildren to their friends or post them on Facebook. That
would be criminalized by this statute. He suggested narrowing
the language to target the intended situation, which is the
distribution where the broader distribution would be
embarrassing. He also suggested the bill provide an exclusion
for people who are taking and involved in the pictures.
MR. STEINER said the other concern relates to the C felony
penalty for publishing or distributing the depiction on the
Internet. The bill refers to the broad definition of "Internet,"
which refers to its physical nature and how things are
transferred. It would in fact become a felony to take a photo
and email it to one person unless a printed photo was used for
the publishing and distribution. He said he believes what was
intended was posting on the Internet for public viewing rather
than simple distribution. He described this as a technical
problem.
CHAIR FRENCH said the committee is focused on getting at this
without including too much.
2:10:33 PM
CHAIR FRENCH announced he would hold SB 72 in committee.
SB 11-HATE CRIMES
2:10:55 PM
CHAIR FRENCH announced the consideration of SB 11.
THOMAS OBERMEYER, staff to Senator Davis, introduced SB 11
speaking to the following sponsor statement:
This bill increases the sentencing for crimes
motivated prejudice, bias, or hatred based on the
victim's race, sex, color, creed, physical or mental
disability, sexual orientation, gender identity,
ancestry, or national origin. This new crime can only
be committed when a person commits some underlying
crime and the person directed the conduct constituting
the crime at the victim due to one of the listed
characteristics of the victim. The new crime increases
the classification of the underlying crime one level.
Without creating a new list of "hate crimes" under AS
11.76, new Sec. 11.76.150 simply reclassifies the
level of any crime up one notch if motivated by
prejudice, bias, or hatred based on the victim's race,
sex, color, creed, physical or mental disability,
sexual orientation, gender identity, ancestry, or
national origin. For example, a class B misdemeanor
becomes a class A misdemeanor; a class A misdemeanor
becomes a C felony; a class C felony becomes a B
felony, etc. Such reclassification, of course,
increases the penalties appropriate to the
classification in sentencing under AS 12.55. The bill
also amends AS 12.55.155(c)(22), an aggravating factor
as sentencing for felonies, by adding "sexual
orientation" and "gender identity" to the list of
protected characteristics.
The need for this bill is demonstrated by increasing
reports of violence against homeless persons,
minorities, religious groups, and others motivated by
prejudice, bias, and hatred in Alaska and across the
country in our highly diverse and multicultural
society. When crimes are committed because of people's
differences, the effects reverberate beyond a single
victim or group into an entire community, city, state,
and society as a whole. While this bill alone cannot
eliminate prejudice, bias, or hatred, it will send a
message that Alaskans will not tolerate hate crimes in
any form, and sentencing for them will be
substantially increased.
2:14:09 PM
SENATOR MCGUIRE asked if he'd read the February 16, 2011 letter
from the ACLU.
MR. OBERMEYER answered yes; Mr. Mittman was concerned that the
language didn't conform to the language in the federal bill.
However, the drafter indicated that it would be unnecessary to
add the federal language because most of this comes under Rule
404 relating to Character Evidence Not Admissible to Prove
Conduct. Furthermore, it's understood by prosecutors and has
worked well in the past.
SENATOR MCGUIRE said she liked the idea of using the language in
the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention
Act because it maintains consistency, but she was also looking
for a comment on the examples on page 2 of the letter that
delineate between two situations of offering evidence. These
examples of racism are repugnant, but the right to speak and
freely associate is protected. The ACLU is saying that the
language in the bill is overly broad and vague and instead
suggests the following:
In a prosecution for an offense under this section,
evidence of expression or associations of the
defendant may not be introduced as substantive
evidence at trial, unless the evidence specifically
relates to that offense.
However, nothing in this section affects the rules of
evidence governing the impeachment of a witness.
SENATOR MCGUIRE asked Mr. Obermeyer to comment.
2:18:56 PM
MR. OBERMEYER reiterated that Mr. Luckhaupt's view was that the
additional language was unnecessary. Prosecutors deal with this
language on a daily basis and have been successful with the
current definition of aggravation under AS 12.55.155(c)(22). Mr.
Luckhaupt believes that nothing in SB 11 overrides the rules of
evidence. He suggested the committee get additional information
from the drafter and the Department of Law (DOL) before making
any changes. SB 11 simply seeks to change the definitional
aggravators, including sexual orientation and gender identity,
without addressing additional associational rights.
He mentioned the paint ball attacks targeting Natives that
precipitated the bill initially and noted that Senator French
indicated that proving motive can be very difficult for
prosecutors, even in the best of circumstances.
CHAIR FRENCH assured Mr. Obermeyer that the committee would get
a good array of advice before the bill is passed. He then opened
public testimony.
2:23:16 PM
SLADE MARTIN, representing himself, testified in support of SB
11. He stated that he became aware of the bill while attending
the Youth Policy Summit and was immediately intrigued. Buckling
down on the consequences for committing acts of hate based on
any of the protected clauses is an amazing idea, he said. Doing
so would send a message that Alaska cares about its residents
and their safety. Victims would regain a sense of safety,
justice, and trust in the legal system. Victims often feel
confused, self-loathing, alone, and scared. Sometimes they are
suicidal. Suicide is a problem in this state so passing this
bill may be a step toward prevention. Everyone is aware of the
epidemic of teen bullying based on sexual orientation where
suicide has been the unfortunate end result. Mr. Martin said he
had experienced hate based on his sexual orientation and the
experiences were terrifying. As violence becomes more prevalent
and accepted, he fears for himself, his loved-ones, the
community, and future generations.
2:25:49 PM
SHAYLE HUTCHISON, Board Member, Alaskans Together for Equality,
stated that passing SB 11 is a way to increase the safety of
residents and the sense of justice for Alaska communities. When
a person is assaulted he or she feels fear, oppression and
trauma, but when a person is attacked based on bias it affects
an entire group of people. It changes the dynamics of how a
community functions. It changes how people act in public places,
where they go, how they walk down the street, and how they
express themselves. Apart from the psychological effect,
violence that is based on bias increases the opportunity for a
retaliatory attack followed by a counter retaliatory act. That
ripple of violence will continue until there's a strong message
that these kinds of crimes will not be tolerated. The
Legislature has the opportunity to send a strong message by
passing SB 11.
MS. HUTCHISON said she particularly appreciates that sexual
orientation and gender identity were added. In Alaska we need to
send a message that a person has an absolute right to believe
what he or she wants to believe and to hold the values he or she
wants to hold, but no one has a right to impose their beliefs or
values on another person using violence, coercion, oppression,
or fear.
2:29:19 PM
NELSON ANGAPAK, Senior Vice President, Alaska Federation of
Natives, requested that the AFN written statement be
incorporated into the record. He proposed a moment of silence
and then stated that 66 years ago when the Territorial Senate
met to discuss equal rights, many spoke against this and refused
to recognize that this was a problem. Elizabeth Peratovich spoke
to the issue of prejudice and injustice stating, "I would not
have expected that I, who am barely out of savagery, would have
to remind gentlemen with five thousand years of recorded
civilization behind them, of our Bill of Rights."
MR. ANGAPAK further stated that the Alaska Federation of Natives
fully supports elevating the punishment for hate crimes based on
race, [ sex, color, creed, physical or mental disability, sexual
orientation, gender identity, ancestry, or national origin.]
They hope that elevating the penalties will serve as a
deterrent. He urged the committee to report SB 11 from committee
and speak favorably when it reaches the Senate floor.
2:33:50 PM
KATE BURKHART, Executive Director, Alaska Mental Health Board
(AMHB)and Advisory Board on Alcoholism and Drug Abuse and
Statewide Suicide Prevention Council, said she would focus on
why the mental health board supports SB 11 and the protection it
affords this unique constituency. According to the Department of
Justice (DOJ), people who have a disability are 2-3 times more
likely to be the victim of a violent crime. Sometimes the attack
is based solely on the disability, which leads AMHB to believe
that this additional protection is appropriate.
The DOJ reports that of the crimes that are motivated based on
hate toward a suspect class, the crimes against people with
disabilities are in the minority. Most hate crimes occur based
on race, faith affiliation, and then gender. However, of the
victims who report being targeted because of their disability,
three-fourths of the attacks are because of a mental health or
cognitive disability. DOJ also reports that half of those
victims report multiple disabilities, which compounds their
vulnerability. The Alaska Mental Health Board supports this
prioritized protection, but it's also important from an
education and policy-making standpoint. The National Council on
Disability, the National Center for Victims of Crime, and the
Association of University Centers on Disability have called for
increased public education and policy changes to prevent
victimization of people with disabilities. SB 11 goes a long way
to achieve those goals.
2:36:46 PM
KELLI BURKINSHAW, Board Member, Alaskans Together for Equality,
stated that as a member of a board that advocates for gay,
lesbian, bisexual, and transgender rights, she would encourage
the committee to pass the bill as quickly as possible.
2:37:44 PM
JEFFERY MITTMAN, Executive Director, Alaska Civil Liberties
Union (ACLU), said SB 11 is an important piece of legislation
and the ACLU is gratified to see that gender identity has been
included. Statistics show that transgender individuals are
targeted for violence. It's important, however, to balance these
protections with First Amendment rights of speech and
association. While the ACLU doesn't support repugnant speech or
hateful groups, it is incumbent on them to protect the right of
individuals to say things that are hurtful and hateful.
MR. MITTMAN pointed out that as currently drafted, the bill is
susceptible to a facial challenge. Without the limiting language
that he suggested in the February 16, 2011 letter to the
committee, SB 11 could be construed to chill First Amendment
associational rights. The limiting language would not harm the
bill because it would not limit the ability to bring
prosecutions, but it would make it clear that the evidence must
relate commission of a crime. He urged the committee to work
with DOL, the sponsor, and the drafter to make the suggested
modifications.
SENATOR PASKVAN asked if attacks on homeless people would fit
within one of the classifications in the bill.
MR. MITTMAN said yes to the extent that the homeless person was
targeted based on race or a physical or mental disability. But a
homeless person who was of a majority race and not suffering
from a disability, potentially could be left out of this
protection.
CHAIR FRENCH asked why the ACLU was raising First Amendment
issues of associational rights when they weren't raised when the
bill was introduced in previous years.
2:41:07 PM
MR. MITTMAN replied they did raise similar issues when the bill
was introduced last session. The ACLU suggested the sponsor
include gender identity, which has been accomplished, but they
also raised First Amendment concerns. He said he would forward
that written testimony. The Matthew Shepard and James Byrd Jr.
Hate Crimes Prevention Act makes explicit that because of
associational and free speech issues, the evidence must be
carefully limited.
SENATOR WIELECHOWSKI asked if he believes that the current
statute is unconstitutional because that language isn't
included.
MR. MITTMAN said the protections are currently in AS 12.55.155,
the aggravator section. Potentially, the way the aggravating
evidence is introduced could be susceptible to an as applied
challenge, but because this bill creates the crime of motivation
by prejudice, it raises the concern to a higher level.
SENATOR WIELECHOWSKI noted that the statute says it's against
the law to discriminate based on race so if the suggested
language were adopted you couldn't introduce the fact that some
was a member of the Ku Klux Klan, for example. I believe that
would be relevant evidence in a racial discrimination case, he
said.
MR. MITTMAN reviewed the current statute and opined that it
could potentially allow introduction of associational rights,
and that introduction, on its own, is susceptible to an as
applied challenge on First Amendment grounds. For example, a
defendant would not be allowed to state that he or she had no
bias whatsoever and open the door to evidence that he or she did
in fact have bias. The ACLU believes that the language in the
federal legislation strikes an appropriate balance. A prosecutor
would be allowed to introduce necessary evidence to establish
the elements of the crime, but not so broadly as to be
susceptible to a constitutional challenge.
CHAIR FRENCH said it's an interesting issue that the committee
would ponder.
2:45:08 PM
WANDA GREENE, President, NAACP Anchorage, stated that the local
NAACP, in line with the national NAACP, supports SB 11. She
noted that the national NAACP unanimously supported passage of
the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention
Act. Part of the NAACP mission is to ensure social and economic
equality for all citizens to achieve equality of rights and
eliminate race prejudice among citizens in the community and the
state. The national NAACP has backed social issues such as this
legislation to eliminate discrimination where ever it is found.
She said she was pleased to see that gender identity, ancestry,
or national origin was added to this legislation.
2:47:20 PM
CHAIR FRENCH closed public testimony and announced he would hold
SB 11 in committee.
SB 39-U.S. PRESIDENTIAL ELECTION COMPACT
2:47:43 PM
CHAIR FRENCH announced the consideration of SB 39 and stated
that public testimony would be taken during a subsequent
hearing.
He read the sponsor statement into the record as follows:
If there is one bedrock rule in elections it is this:
the person with the most votes is the winner. This
legislation would guarantee the Presidency to the
candidate who receives the most votes in the United
States.
The concept of 'the person with the most votes wins'
is simple, but it hasn't always worked out that way in
our Presidential elections.
In 1876 Samuel Tilden received 254,000 more votes that
Rutherford Hayes; however, Hayes won the Electoral
College tally by one vote by having won a number of
states by very small margins. In 1888 Grover Cleveland
led in the popular vote over Benjamin Harrison, 48.6
percent to 47.8 percent, but Harrison won the
Electoral College by a 233-168 margin, largely by
virtue of his 1 percent win in Cleveland's home state
of New York. In 2000 Al Gore won the popular vote by
just over 500,000 votes but lost in the Electoral
College to George Bush 266-271. In 2004 a shift of
only 60,000 votes in Ohio from George Bush to John
Kerry would have resulted in Kerry winning the
Electoral College despite losing the popular vote by
over 3 million votes.
SB 39 corrects this defect in our Presidential
elections not by doing away with the Electoral College
but by modifying how each state's electoral votes are
cast. Currently the state's Electoral College votes
are cast 100% in favor of the popular vote winner in
the state. The bill would have Alaska join a compact
made up of states that have pledged to cast their
electoral votes in favor of the national popular vote
winner. The compact would not go into effect until
enough states have joined to put a majority of the
Electoral College votes in the compact.
The choice of how to allocate our vote within the
Electoral College was given to us by Article II,
Section I of the US Constitution. The founding fathers
of our country left the decision on how to select
electors up to each individual state legislature. The
US Supreme Court has written that "the appointment and
mode of appointment of electors belong exclusively to
the states under the constitution of the United
States." McPherson v. Blacker, 146 U.S. 1 at 29
(1892).
Many believe that the current system causes candidates
to focus on swing states, and swing state issues,
instead of approaching the country as a whole. It is
beyond dispute that under the current system
candidates spend their campaign funds on just a few
states. Here's an example of how this plays out in
Alaska. During the final 40 days of the 2008 election,
99% of all media expenditures were made in 17 states.
Alaska, needless to say, was not one of them.
In a close presidential election that decides our
country's future, all states should be swing states.
Every vote should count, and should be sought by every
candidate. This bill will promote truly national
presidential campaigns, and it will ensure that the
person sent to occupy the most powerful office in the
world is the one who got the most votes in the
election.
2:51:15 PM
CHAIR FRENCH said he was surprised to learn that the method of
awarding electoral votes has changed substantially over the
years. In 1789 when George Washington was elected, only a few of
the Electoral College electors were selected by election; most
were assigned by the state legislators. The U.S. Constitution
specifically identifies state legislators as the sole arbiters
of how electoral votes are awarded.
SB 39 is about ensuring that the Electoral College awards the
presidency to the person who got the most votes. Absent some
action by Congress to undo the Electoral College, this is a way
to achieve that goal.
2:52:58 PM
ANDY MODEROW, staff to Senator French, said SB 39 adds new
sections to AS 15.30, which pertains to national elections in
the state. He provided the following sectional analysis:
Section 1 - page 1, lines 9-13, outline that Alaska joins in
this compact with the other states that enact it.
Article I of the compact outlines that any state and the
District of Colombia may join in the compact.
Article II of the compact requires that member states conduct a
statewide popular election for president and vice president.
Article III of the compact discusses how presidential electors
are selected.
- Page 2, lines 9-14, require member states to count state
votes, and calculate a national popular vote total for each
presidential slate.
- Page 2, lines 15-16, require the state election official to
designate the national popular vote winner. In Alaska this is
the director of the Division of Elections.
- Page 2, lines 17-19, require the presidential elector
certifying official in Alaska to certify the appointment of the
winning candidate's elector slate.
- Page 2, lines 20-24, require that member states communicate
state vote totals at least six days before presidential electors
meet and cast votes. This is a federal law reiterated in the
compact.
- Page 2, lines 25-28, require each member state to treat as
conclusive an official statement containing the number of
popular votes in a state for each presidential slate, on the day
currently required by law for states to make that final
determination. This is a federal law reiterated in the compact.
- Page 2, line 29, through page 3, line 1, makes it clear that,
in case of a national popular vote tie, states are to cast their
electoral votes as determined by state vote totals.
- Page 3, lines 2-7, outline procedures in case the number of
presidential electors nominated in a member state does not equal
the number of electoral votes the state is entitled to.
- Page 3, lines 8-9, require public disclosure of vote totals as
they are determined or obtained.
- Page 3, lines 10-12, require that this compact govern the
appointment of presidential electors if it is active on July 20
of a presidential election year.
2:56:06 PM
Article IV of the compact contains other provisions.
- Page 3, lines 14-16, set when this compact becomes active.
When a majority of Electoral College votes are governed by this
compact, it takes effect.
- Page 3, lines 17-20, allow that any state may withdraw from
this compact, but not during the final six months of a
president's term. This July 20 through January 20 blackout is to
provide for set election procedures going into the election
season.
- Page 3, lines 21-24, require that member states notify other
member states when the compact is enacted, or withdrawn.
- Page 3, line 25, terminates this compact if the Electoral
College is abolished.
- Page 3, lines 26-27, provide for severability of each
component of this Act.
Article V provides definitions. To highlight a few:
- (A) on page 3, lines 29-31, clarify who the chief election
official is in each state. In Alaska, it is the director of the
Division of Elections.
- (E) on page 4, lines 8-10, discuss who certifies the
appointment of presidential electors. In Alaska, under current
statute AS 15.30.060, this is the director of the Division of
Elections.
- Page 4, lines 22-24, declare that the Alaska director of the
Division of Elections is the chief election official described
by the compact.
Section 2 - page 4, lines 25-29, adjust AS 15.30.060 (which
relates to notification of electors) to adapt when the compact
is activated.
Section 3 - page 4, lines 30-31, through page 5, lines 1-9, add
a new subsection to AS 15.30.060. It requires notification of
electors as outlined by the compact, and not as outlined by
current law.
Section 4 - page 5, lines 11-19, adjust AS 15.30.090, which is
the current Duties of Electors statute, to adapt when the
compact is activated.
Section 5 - page 5, lines 20-31, through page 6, line 1, adds a
new subsection to the current duties of elector statute. It
clarifies that elector duties are outlined by the compact, not
current statutes.
MR. MODEROW offered to answer questions.
2:58:32 PM
CHAIR FRENCH asked the committee to hold their questions until
the next hearing on SB 39.
2:58:50 PM
There being no further business to come before the committee,
Chair French adjourned the Senate Judiciary Standing Committee
meeting at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 11 Sponsor Statement.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Support Material.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Sectional Summary 27-LS0087A.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 11 Letters.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 11 |
| SB 39 Sponsor Statement.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Sectional.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 One Page Summary.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Editorials.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |
| SB 39 Alaska Poll Results.pdf |
SJUD 2/16/2011 1:30:00 PM |
SB 39 |