Legislature(2021 - 2022)GRUENBERG 120
01/21/2022 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB183 | |
| HB51 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 183 | TELECONFERENCED | |
| *+ | HB 51 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 51-AGGRAVATING FACTORS AT SENTENCING
1:55:55 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 51, "An Act relating to aggravating factors
considered at sentencing."
1:56:16 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor, introduced HB 51. He explained that the bill
would add "sexual orientation" and "gender identity" to the list
of aggravators found in sentencing code under AS
12.55.155(c)(22). The existing aggravators in the list are
"race", "creed", and "religion". He stated that he believed the
bill to be necessary following the events of December 2019,
during which a woman had been assaulted and the perpetrator had
never been found. He characterized the circumstances of the
assault as alarming and that on November 14, 2019, Ms. Tammy
Willis had discovered a note left on her windshield threatening
her identifying her as a person of same-sex orientation. Eight
days later, a rock had been thrown through her vehicle's
windshield. On December 9, she had been assaulted with a knife
and sustained serious injury. He explained that it had been
suggested that the attack had been the response to Ms. Willis's
organization of a "Pride in the Park" event in Kenai or Soldotna
in spring 2020. He said that a town hall event had been
attended by over 200 individuals in Kenai and Soldotna to compel
the city councils to include sexual orientation and gender
identity in aggravating factors in criminal code. He said that
both councils had voted in favor of House Bill 198, an earlier
version of HB 51. He stated that the late Representative Gary
Knopp had aided in the drafting of House Bill 198. He stated
that HB 51 would designate crimes targeted against this
population would be aggravated. He offered that hate crimes are
predicated on community condemnation, retribution, and symbolic
statements. He indicated that reaction to a crime committed
against the general public, that did not target a specific
group, did not elicit an anxiety that exists among victims of
specifically targeted groups. He recalled a U. S. Supreme Court
Case, Wisconsin v. Mitchell, in 1993, pertaining to aggravating
factors to include hate crimes. He said that Chief Justice
Rehnquist had ruled that the statutes [in question] were lawful
and that they did not violate equal protections.
2:03:27 PM
REPRESENTATIVE JOSEPHSON read from the opinion issued, that
"bias motivated crimes are more likely to provoke retaliatory
crimes, inflict distinct emotional harms on their victims, and
incite community unrest." He stated that the aggravating
factors would apply only to felonies and that notice seeking the
aggravator to the court is required. He stated that aggravators
are considered by a jury and must be decided unanimously unless
the defendant waived the jury's unanimous verdict.
2:07:23 PM
MAX KOHN, Staff, Representative Andy Josephson, Alaska State
Legislature, presented a PowerPoint presentation [hard copy
included in the committee packet] entitled, "HB 51 PowerPoint
Presentation 1.21.2022.pdf," and he explained aggravating
factors as listed in 12.55.155(c). He read from slide 4, which
lists the reasoning for including aggravating factors in the
sentencing phase of a criminal prosecution. Slide 4 read as
follows [original punctuation provided]:
•Motive and details matter.
•As with all laws, these factors reflect societal
attitudes.
•In instances where aggravators are relevant, the
defendant has already been convicted and the details
of the crime are broadly considered abhorrent or
aberrant.
•When a sentence is imposed beyond the presumptive
range, it can be seen as an indication that the motive
was particularly egregious or that the defendant
demonstrated a disregard for societal norms beyond
what might be expected for a 'typical' crime of that
type.
•The impact of an assault motivated by hate towards a
group has larger repercussions than even the initial
terrible impact on the individual.
MR. KOHN explained that there is one change to the statute in
question, and he read from slide 6 an excerpt from the sectional
analysis, which read as follows [original punctuation provided]:
•AS 12.55.155(c)(22) currently allows a sentencing
court to impose additional sentencing if "the
defendant knowingly directed the conduct constituting
the offense at a victim because of that person's race,
sex, color, creed, physical or mental disability,
ancestry, or national origin"
B 51 adds "sexual orientation or gender identity" to
this list.
2:10:51 PM
MR. KOHN drew attention to slide 7, which contained graphs based
on the Federal Bureau of Investigation (FBI) data on anti-gender
identity and anti-sexual orientation hate crimes during 2015-
2019, and he noted that the data reflected actual crimes that
had occurred. He stated that the data demonstrates that the
problem is getting worse at the national level. He next drew
attention to slide 8, which shows a map on which lighter blue
states are states that only include laws addressing sexual
orientation and that the darker blue states are states that have
laws addressing both sexual orientation and gender identity. He
pointed out that the State of Wyoming, like Alaska, has no laws
addressing hate crimes committed towards sexual orientation or
gender identity. He suggested that there exist negative impacts
in states that do not have such laws, and he read a press quote
from slide 9, which read as follows [original punctuation
provided]:
Anti-LGBTQ bigotry ran rampant in Wyoming last year.
In addition to isolated incidents of violence and
discrimination, several communities broke out in
dispute over LGBTQ representation in public spaces.
MR. KOHN stated that the business community in Wyoming was
advocating for laws against hate crimes. He then read the quote
from slide 9, attributed to Chris Brown, Wyoming Lodging and
Restaurant Association Lobbyist, which read as follows [original
punctuation provided]:
Protecting the LGBTQ+ community under a hate crime
statute "sends a message that bias-motivated crimes
are taken seriously."
MR. KOHN next drew attention to slide 10 of the presentation,
which provides an example of criminal justice reform from across
the nation, specifically legislation that had been passed
recently by the State of Georgia. Slide 10 read as follows
[original punctuation provided]:
Georgia passed HB 426 in 2020 with wide bipartisan
support.
60 out of 100 Republicans in the State House supported
the bill along with 26 out of 34 Republicans in the
State Senate. That's a total of 64% of Georgia
Republicans.
Georgia's HB 426 includes Race, Color, Religion,
National Origin, Sex, Sexual Orientation, Gender,
Mental Disability, or Physical Disability.
MR. KOHN concluded the presentation by recalling the story that
Representative Josephson had recounted from 2019 and stated that
the crime that had been committed had negatively affected a
larger community.
2:15:00 PM
TAMMIE WILLIS testified in support of HB 51 and stated that she
had been the victim in the crime that Representative Josephson
had detailed in earlier testimony. She began her testimony by
noting that the murder of Matthew Shepard had taken place in
Wyoming, which has no hate crime laws, and the case had garnered
national attention. She stated that she had worked with others
to establish the Kenai Peninsula College (KPC) Alliance that
evolved to the Soldotna Pride in the Park in June 2019, which
had grown to over 200 participants. She stated that because of
the size of the event, a community planning event had been
organized, following which, the crimes against her commenced.
She detailed the violent assault against her. She stated that
she had reported each incident to the police and some evidence
had been gathered. She stated that she had publicly shared her
experiences and had been met with "a wall of hate," including
threats. She stated that the threats against her continue, and
she had quit her job and moved from her home to escape the
threats.
2:18:56 PM
MS. WILLIS stated that she had started an organization called
Queers and Allies to create safe spaces and to provide education
and advocacy. She shared with the committee that she had
encountered recurring stories, during her advocacy work,
involving harassment, bullying, violence, fear, sexual abuse,
and homelessness among the lesbian, gay, bisexual, transexual,
and queer (LGBTQ) community. She stated that an advocate in
Fairbanks and an advocate in Anchorage had been assaulted and
remain anonymous out of fear. She stated that HB 51 would
support change to criminal justice in Alaska to protect these
citizens.
CHAIR CLAMAN asked Ms. Willis to provide her written testimony.
2:23:05 PM
REPRESENTATIVE KREISS-TOMKINS asked whether the assailant
against Ms. Willis had been identified and taken into custody.
MS. WILLIS answered that he had not. She stated that many
problems occurred during her case. For example, evidence had
been lost or not examined in a timely manner and witnesses had
not been interviewed in a timely manner. The FBI was eventually
involved in the case.
2:24:47 PM
CHAIR CLAMN opened public testimony on HB 51.
2:25:33 PM
ALEXANDER MORIARTY testified in support of HB 51. He thanked
the bill sponsor. He offered that aggravating factors for hate
crimes were necessary based on the evidence in the slides
presented earlier and that the protections would be put in place
for some of the most vulnerable members of society. He stated
that everyone's life should be protected equally.
2:28:42 PM
ROBIN DERN, Board Member, Anti-Defamation League, Pacific
Northwest Region, testified in support of HB 51. She stated
that according to a 2019 FBI hate crimes report, 11 hate crimes
had occurred in Alaska, the highest ever. She added that in
2020, 7,759 hate crimes had been documented across the country,
and 1 of 6 were motivated by the victim's actual or perceived
sexual orientation or gender identity. She stated that the
statistics were not representative of the actual incidence of
these crimes due to victims' reluctance to come forward and that
law enforcement may not be equipped to deal with the crimes when
they are brought forward. She urged the passage of HB 51.
CHAIR CLAMAN asked Ms. Dern to provide her written testimony.
2:32:29 PM
CHAIR CLAMAN, after ascertaining that there was no one else who
wished to testify, closed public testimony on HB 51.
REPRESENTATIVE EASTMAN asked what possible minimum and maximum
sentences would apply to the crimes.
REPRESENTATIVE JOSEPHSON explained that a B felony would result
in a sentence of 0-10 years and an A felony would result in a
sentence of 0-20 years. He offered an example wherein a
presumptive sentence on a B felony conviction would be 4 years,
that a judge may elect for a sentence of up to 10 years but only
with a finding that the felon was the worst in his/her class.
He said that a judge may, at his/her discretion, increase a
sentence.
REPRESENTATIVE EASTMAN asked whether a sentence would be from 0-
20 years.
REPRESENTATIVE JOSEPHSON answered no, such as in a case where
the victim was murdered, the sentence would be more than 20
years.
REPRESENTATIVE EASTMAN asked the definition of "creed".
REPRESENTATIVE JOSEPHSON answered that "creed" is defined under
AS 12.55.185 as it is listed under AS 12.55.155. He proffered
that the terms "color" and "physical or mental disability" are
not defined, but courts operate with those terms regularly. He
postulated that "creed" likely pertains to one's religion;
however, "creed" does not pertain to HB 51.
CHAIR CLAMAN offered that "creed" is existing law.
REPRESENTATIVE EASTMAN explained his reason for asking was to
determine that "creed" would not already capture the inclusion
of the protected class in HB 51.
REPRESENTATIVE JOSEPHSON stated that no such indication [that it
would] had been offered by counsel [in Legislative Legal
Services].
REPRESENTATIVE EASTMAN asked whether HB 51 would criminalize any
new behavior.
REPRESENTATIVE JOSEPHSON answered that it would not.
REPRESENTATIVE EASTMAN asked for additional information on the
increase in the crimes as presented in the PowerPoint and asked
why the crimes are not decreasing when laws are being passed to
protect against them.
2:38:01 PM
REPRESENTATIVE JOSEPHSON stated that he held his own beliefs for
the reasons for the increase in these types of crimes.
REPRESENTATIVE EASTMAN suggested that the bill is modest and
asked whether solely increasing sentencing would be sufficient
to solve the problem and if any other tools would be sought.
REPRESENTATIVE JOSEPHSON answered that tools which may be sought
to solve the problem would be universal pre-[kindergarten] and
support for young parents, which are expensive to implement. He
noted that a scholar, Dr. Gurstenfeld, had conducted extensive
research and had found that the symbolic expression of noting
the conduct as unacceptable in the larger society has value.
REPRESENTATIVE EASTMAN stated that he was persuaded that crimes
motivated by hate should be minimized and questioned the limited
language and questioned not including those who may not be
members of a group.
REPRESENTATIVE JOSEPHSON recalled his earlier testimony that
hate crimes are targeted against a particular cohort with shared
traits and recalled the opinion of Chief Justice Rehnquist.
2:43:26 PM
CHAIR CLAMAN recalled Representative Eastman's earlier question
regarding sentencing under AS 12.55.125 and answered that the
first offense of a B felony would be 1-3 years, a second B
felony would be 3-7 years, and the third or greater offense
would be 7-10 years. He stated that, unless a jury finds an
aggravating factor in a first B felony offense, the judge would
be barred from imposing more than a 3-year sentence.
REPRESENTATIVE DRUMMOND asked the rationale for including the
term sexual "identity" as compared to gender or sex.
MR. KOHN answered that the FBI data had reflected that from 2015
to 2019, of the instances of gender-based crimes committed,
crimes predicated on gender alone comprised only one-third of
those crimes.
REPRESENTATIVE JOSEPHSON added that when counsel had been
consulted regarding sex compared with gender identity, he/she
had concluded the following: "If you would like to guarantee
that a sentencing aggravator can be applied in cases where
conduct is knowingly directed at a victim because of that
person's sexual orientation or transgender status, I recommend
amending the statute to specifically include such language."
2:48:43 PM
REPRESENTATIVE EASTMAN asked whether the word "or" would be
necessary, grammatically.
MR. KOHN offered to pose the question to the drafter of the
statute, Ms. Radford, and follow up with the committee.
REPRESENTATIVE EASTMAN recalled earlier testimony by
Representative Josephson regarding additional tools such as
universal pre-K and asked how effective the proposed change to
the statute would be.
REPRESENTATIVE JOSEPHSON cautioned against any implication of
diminished importance of the bill but offered that it would
result in incremental progress in the law. He acknowledge the
need exists for government protection and that all Americans do
not need protections in the same way.
2:51:33 PM
CHAIR CLAMAN announced that HB 51 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 51 v. A 2.18.2021.PDF |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM HJUD 1/28/2022 1:30:00 PM HJUD 1/31/2022 1:00:00 PM |
HB 51 |
| HB 51 Sponsor Statement v. A 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM HJUD 1/28/2022 1:30:00 PM HJUD 1/31/2022 1:00:00 PM |
HB 51 |
| HB 51 Supporting Document - Peninsula Clarion Article 12.26.2019.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Alaska Public Media Article 12.30.2019.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Washington Blade Article 11.20.2019.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Peninsula Clarion Article 1.4.2020.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Soldotna City Council Resolution 1.22.2020.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Kenai City Council Resolution 2.5.2020.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Kenai Peninsula Borough Resolution 2.25.2020.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - City of Soldotna Resolution 5.12.2021.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - FBI Hate Crimes Reports (2015-2019) 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - 2021 HRC Hate Crimes Law Map 7.19.2021.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - 2021 NCSL Hate Crime Related State Statutes 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Supporting Document - Letters Received by 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 51 Fiscal Note CRIM-CJL 1.14.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM HJUD 1/28/2022 1:30:00 PM HJUD 1/31/2022 1:00:00 PM |
HB 51 |
| HB 51 PowerPoint Presentation 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 51 |
| HB 183 v. B 4.21.2021.PDF |
HJUD 5/14/2021 1:00:00 PM HJUD 1/21/2022 1:00:00 PM |
HB 183 |
| HB 183 Sponsor Statement v. B 5.14.2021.pdf |
HJUD 5/14/2021 1:00:00 PM HJUD 1/21/2022 1:00:00 PM |
HB 183 |
| HB 183 Supporting Document - Criminal Justice Taskforce Recommendation 12.3.2020.pdf |
HJUD 5/14/2021 1:00:00 PM HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Additional Document - A Sunset Review of the Office of the Governor, Alaska Criminal Justice Commission 6.12.2020.2020 |
HJUD 5/14/2021 1:00:00 PM HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Supporting Document - Alaska Native Justice Center Letter 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Fiscal Note DOH-BHA 1.14.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Fiscal Note DOC-R&R 1.15.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Fiscal Note JUD-AJC 1.18.2022.pdf |
HJUD 1/21/2022 1:00:00 PM HJUD 1/26/2022 1:30:00 PM |
HB 183 |
| HB 183 Work Draft Committee Substitute v. I 1.21.2022.pdf |
HJUD 1/21/2022 1:00:00 PM |
HB 183 |