Legislature(1999 - 2000)
04/15/1999 01:24 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER
CHAIRMAN KOTT announced that the committee would continue its
hearing on House Bill No. 75, "An Act relating to murder;
authorizing capital punishment, classifying murder in the first
degree as a capital felony, and allowing the imposition of the
death penalty when certain of those murders are committed against
children; establishing sentencing procedures for capital felonies;
and amending Rules 32, 32.1, and 32.3, Alaska Rules of Criminal
Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of
Appellate Procedure." Chairman Kott asked whether the sponsor had
additional comments.
Number 0080
REPRESENTATIVE BEVERLY MASEK, Alaska State Legislature, sponsor,
thanked the chairman but indicated she would rather hear the public
testimony.
Number 0135
CYNTHIA STROUT, Attorney at Law, testified via teleconference from
Anchorage. A criminal defense attorney since 1982 and president of
Alaskans Against the Death Penalty, Ms. Strout said she would focus
on two areas. First, current laws sufficiently protect the public.
She is aware of no case being overturned in our court system where
people have received sentences of 99 years. She believes the
courts are well able to provide sentences for people who commit
homicides under these conditions that will ensure that they are not
released back into their communities. Second, somewhat contrary to
the intent, under this bill the state could execute people 16 years
old or younger, including a 15-year-old who killed a 12-year-old
while playing Russian roulette, for example, or a 7-year-old who
killed his 4-year-old brother, as in a recent case. Ms. Strout
noted that the previous week's newspaper discussed recent studies
showing that prison populations are full of people who were abused
as children. Ms. Strout asked whether it wouldn't be better to put
the necessary funds to enact this bill into preventing child abuse,
thereby stopping that cycle of violence.
Number 0407
CHAIRMAN KOTT commented that when he had posed the question the
previous day, he was inquiring whether anyone was aware of someone
in Alaska sent to prison for life, then later cleared because of
finding out that person wasn't the perpetrator of the crime.
MS. STROUT referred to an article that she believes the committee
has, in which studies indicate that when Alaska had the death
penalty, in territorial days, there were serious factual questions
about the guilt of two people who were executed. She believes that
other states' history should be a guide; in Illinois, 11 people
have been released from death row, for example, based on "factual
innocence." Alaska, with no death penalty, has nothing to
correlate with that. However, it should give people pause.
Number 0528
KEVIN McCOY testified via teleconference from Anchorage in
opposition to HB 75. An Alaska resident since 1976, he is married
and has raised two children, his most precious connection to this
world and this state, he told members. The best teachers have been
those who teach by example, Mr. McCoy pointed out. He is most
troubled by this proposal because of the example that it sets,
trying to teach people, by killing, that killing is wrong.
Although he would be devastated if something happened to his
children, this bill would not remedy that. He recalled testimony
by Marietta Yeager (ph) a few years ago against a death penalty
bill; her daughter had been taken from a campground and killed, and
her comments had really made Mr. McCoy think about the issue. He
cannot endorse the death penalty, he told members, because it
wouldn't bring the child back. Furthermore, he wouldn't want a
memorial for his child to be the death of another person. Mr.
McCoy endorsed all the comments made the previous day and urged
members to vote against this bill. It would cost too much, it
wouldn't work, and it seems there are more serious budgetary
concerns, which would have more of a direct, positive impact on
Alaskans, he concluded.
Number 0691
M.J. HADEN testified via teleconference from Anchorage in
opposition to the death penalty. A paralegal with the federal
public defenders office, she moved to Alaska last year from
Georgia, where she had also worked for the federal public defenders
office. She noted that her testimony is along the lines of Mr.
Curtner's testimony regarding his first-hand experiences with the
death penalty in Ohio, heard the previous day. However, her own
experience, both at the trial level and at the post-conviction
stage, was in Georgia, which, unlike Ohio, does execute defendants
sentenced to death. Since 1976, when the death penalty was
reinstated there, the state has executed 23 people. In the past 20
years, three individuals sentenced to the electric chair were
proven innocent. Currently, 123 people are on Georgia's death row.
MS. HADEN told members that she has witnessed so many pitfalls in
the implementation of the death penalty in Georgia that it would be
difficult to share them all. These include defendants represented
by lawyers with no criminal law experience; trials where the
appointed attorney only met with the defendant a couple of days
before trial was to begin; cases where vital exculpatory evidence
was discovered to have been withheld from defense counsel; and
cases where witnesses, including law enforcement officers, were
found to have lied. Furthermore, because the decision of whether
to seek the death penalty is exclusively that of the district
attorney in Georgia, she has seen the death penalty used as a
political ploy in election years. She said she can't begin to
recount the disparity and discrimination surrounding Georgia's use
of the death penalty.
MS. HADEN shared two memorable moments in her career. One was her
first visit to Georgia's death row. She had been studying her case
file, reading the transcripts and reviewing the graphic evidence,
and she didn't know what to expect from this person. When he came
in, he was not a monster or a devil, she discovered, but a human
being who laughed, cried, and got angry like anyone else. The
second memory was from the end of a trial, awaiting sentencing for
a client who had been found guilty. Waiting in a room with his
mother and brother to see how the 12 jurors had voted, she could
see the pain on their faces, and the love they still had for their
family member, despite what he might have done. "We're talking
about putting to death sons and daughters, sisters and brothers,
mothers and fathers," Ms. Haden concluded. "We're talking about
our government killing human beings, and that is wrong."
Number 0992
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
(AKCLU), testified via teleconference from Anchorage in opposition
to HB 75, noting that the AKCLU is a nonprofit, nonpartisan
organization with statewide membership, an affiliate of the
American Civil Liberties Union (ACLU) whose mission is to preserve
and defend the guarantees of individual liberties found in the Bill
of Rights and in the Alaska constitution.
MS. RUDINGER told the committee that while there is no good reason
for the passage of HB 75, there are many reasons for its defeat,
including constitutional and economic factors; the racially
discriminatory fashion in which the death penalty is allocated; and
the fact that people have been sent to death row only to later be
proven innocent. She believes that most people would say the
government is inefficient and has too much power already. However,
adoption of the death penalty would give the state the ultimate
power of deciding who lives and who dies.
MS. RUDINGER emphasized the proven racial disparities in the
charging, sentencing and imposition of the death penalty. In 1990,
the U.S. General Accounting Office reported to Congress that in
this nation's trial courts, the killing of a White person is
treated much more severely than the killing of a person of color.
For example, 80 percent of the victims of the 313 people executed
between January 1977 and the end of 1995 were White.
MS. RUDINGER next addressed erroneous convictions resulting in
death sentences, which she said have occurred in virtually every
jurisdiction in the nation. Advances in scientific technology,
such as DNA testing, have exonerated people on death row, and
crucial testimony has sometimes later been proven false. Ms.
Rudinger cited two examples. The first was a Florida couple
convicted of a murder; although the husband was executed, the
wife's conviction was vacated when it was proven that the crucial
evidence against them had consisted mainly of the perjured
testimony of an ex-convict who had turned state's witness to avoid
a death sentence himself. In the second example, reported in the
Anchorage Daily News in February, a man on death row in Illinois
was exonerated due to the efforts of students at Northwestern
University. Ms. Rudinger concluded, "All governments do make
mistakes. Please, do not give our state government the power to
make a mistake by executing an innocent person."
Number 1259
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
said he is personally opposed to the death penalty but would
address the nuts and bolts of HB 75; in addition, he would try to
provide written comments about the problems he sees with the bill.
MR. McCUNE pointed out that because this bill does not call for an
advisory vote, death penalty prosecutions could begin immediately
after it became effective. In addition, when he first saw the
bill's title, he expected a statute making an intentional killing
of a child an offense. However, on page 3, lines 20 and 21, for
example, it makes all first-degree murders capital offenses. This
bill greatly expands the power of Alaska statutes to have death
penalties for other first-degree murders, in addition to the murder
of a child, to be punished by death.
MR. McCUNE urged members to consider that in recent years the
legislature has been asked to expand murder in the first degree, to
include situations where someone knowingly engages in conduct that
is not necessarily intentional. Furthermore, accomplices who do
not cause the death of a person can be found guilty of murder in
the first degree.
MR. McCUNE noted that the bill sets up a sentencing procedure. He
called attention to page 8, lines 21 through 23, then explained
that if somebody is convicted of any first-degree murder, HB 75
would require that person to go to the sentencing phase for a death
penalty, even though the victim of the offense was not a child.
Mr. McCune said that is a very odd provision that doesn't seem to
fit within the intent of the bill, and he believes that the
committee ought to take a close look at it.
MR. McCUNE discussed the aggravating factors, referring to pages 9,
beginning at line 31, and continuing to page 10, line 8. Noting
that this section finally mentions children as victims, he
expressed concern that instead of listing the aggravating factors
numerically, and saying that the jury must find one of the listed
aggravating factors, the bill says a penalty may be imposed if
aggravating factors are found. He believes that the intention of
the bill is that all the aggravating factors have to be met before
a death penalty could be imposed. However, it could be interpreted
that if any of the aggravating factors is found, the death penalty
could be imposed.
MR. McCUNE next expressed concern that only four mitigating factors
are listed. In every other type of criminal case, there is a much
longer list of mitigating factors that the judge can take into
account in deciding what sentence to impose. These mitigating
factors are found in AS 12.55.151(d). Among them is the defender
who was an accomplice in the case, but played a minor role; an aged
defendant who acted under a mental infirmity; the existence of
serious provocation from the victim of the offense; and, most
important - which Mr. McCune believes absolutely should be included
as a mitigating factor that the jury, in this case, could take into
account - is whether the offense was among the least serious of the
offenses set out in the statute. However, a jury would be
powerless to take that into account, because it is not included in
the mitigating factors that are in this bill.
MR. McCUNE drew member's attention to page 8, line 28. He
explained that he is concerned about the provision that says that
evidence [as to any aggravating or mitigating factor] can be
admitted "regardless of the admissibility of the evidence under the
rules of evidence." He said he understands that in a sentencing
proceeding hearsay can be allowed if a person has an adequate
change to rebut it. However, he believes that this provision goes
much beyond that, as it would allow evidence that was illegally
seized to be used in the penalty phase in a death penalty case.
MR. McCUNE advised members that the final concern regards merit
appeals. On page 10, lines 20 through 31, it says that the
sentence review procedure is set up in the Alaska Supreme Court.
He pointed out that sentence review is distinguished from issues
like whether the trial judge made errors in admitting evidence,
whether illegally seized evidence was admitted, or whether a
confession without the benefit of Miranda rights was admitted
against the defendant. These are types of merit appeal issues that
the Alaska Court of Appeals currently handles. In this bill, it
isn't clear which court - the Alaska Court of Appeals or the Alaska
Supreme Court - would review the merit issues.
Number 1683
REPRESENTATIVE KERTTULA responded that the section on page 8, line
28, about admitting testimony regardless of the admissibility of
the evidence, had bothered her, as well. She asked whether Mr.
McCune knows what happens in sentencing phases in other states on
that issue.
MR. McCUNE replied that although he hasn't studied other state law
cases, he has seen federal cases where, for example, the United
States Supreme Court has overturned death sentences because of
admissibility problems in the evidence. He said he believes there
is a U.S. Supreme Court case in which the jury heard prejudicial
types of statements that had swayed them. With this provision,
he'd be afraid that the trial judge would think that he or she
didn't have the power to apply Evidence Rule 403 and find that if
the probative value of the evidence was not outweighed by the
prejudicial effect, the judge would be powerless to remove that
evidence from the consideration of the jury.
Number 1755
REPRESENTATIVE CROFT referred to page 8, line 22, which says that
if, after a trial by jury, a defendant is convicted of a capital
offense, the court shall conduct a separate proceeding. He asked
whether the state would run all first-degree murders through this,
even if there wasn't an allegation that there was a child involved.
MR. McCUNE replied that it is the way the bill is currently
written, which is odd to him, because the title leads him to
believe it would involve just murders of a child. As written,
first-degree murder is a capital felony, and for a capital felony,
there must be a separate sentencing proceeding before a jury.
Number 1821
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, testified via teleconference from Anchorage about
the costs. She said she believes that the fiscal note is
self-explanatory. The figures that seem high are because of the
unique requirement of "capital litigation." Capital punishment in
Alaska, as in every other state, will be more expensive than
convicting and sentencing people to life imprisonment without the
possibility of parole, she explained. These costs are not what is
commonly believed to be the result of some frivolous and lengthy
appeal process, but, rather, the result of the constitutional
uniqueness of the death penalty cases, and the safeguards that have
been set up by the United States Supreme Court. Ms. Brink expanded
on that:
Basically, those safeguards require that every jury be given
very clear guidelines on sentencing, in exclusive provisions
defining what are aggravating and mitigating circumstances.
A defendant is constitutionally entitled to have two jury
trials. The first jury trial is to establish their guilt or
innocence, and then, if the person is convicted, they are
entitled to a second jury trial to determine whether or not
they should receive the death penalty.
Constitutionally, every defendant is granted automatic
oversight protection by the state supreme court, and all of
these constitutional safeguards translate into what has been
described as "super due process." The result of that
heightened scrutiny - because we're so concerned about who
gets convicted, and we don't want any bad convictions - is
that there is a much more extensive jury selection procedure
at any capital trial.
There is a fourfold increase in the numbers of motions that
are filed in capital cases than in normal murder cases without
possibility of the death sentence. As I've pointed out,
there's a longer, dual sentencing process. That translates
into more investigation needed, more expert testimony needed,
and more lawyers who specialize solely in death penalty
litigation. That, combined with the automatic mandatory
appeals, has resulted in some dramatic costs.
We don't have to operate in a vacuum, and this isn't just my
speculation about what it's going to cost. ... There've been
a myriad of studies conducted across the Lower 48 in those
states that do have the death penalty, and every one of those
studies concludes that it is much more costly to have a death
penalty than not to have one. The most comprehensive study
that's been conducted so far was done by Duke University in
May of 1993, and it simply studied North Carolina. In North
Carolina, they found that the death penalty cost $2.16 million
dollars, per execution, over the cost of a non-death-penalty
murder case. They also determined that the bulk of that cost
did occur at the trial level, not the appellate level.
A study in California found that in California the state spent
$90 million annually over and above the ordinary costs of
noncapital litigation to have a death penalty. They also
found that $78 out of that $90 million was incurred at the
trial level. Florida did a study in 1988 where they found
that they've spent $57 billion dollars on the death penalty
between 1973 and 1988, and yet only achieved 18 executions.
Therefore, it cost them about $3.2 million to try and convict
and execute a single person.
In Texas, a study was done in 1992, and there they found that
the average death penalty case cost the taxpayer $2.3 million,
which was three times the cost of imprisoning someone in a
single cell, at the highest level of security, for 40 years.
I'd also wanted to point out that even though Florida spent
$3.2 million per execution, they've (indisc.) a budget crisis
two years ago, similar to what we're looking at; the
department of correction's budget was cut mid-year, and that
resulted in the early release of 3,000 prisoners from the
department of corrections. In Texas, the costs are saved by
giving Texas prisoners so much "good time" that the average
Texas prisoner only serves 20 percent of their imposed
sentence; and it should also probably mean, though, ... that
even though Texas has a death penalty - has had one for years,
and has executed the most number of people in the United
States - its murder rate is among the highest in the entire
country.
There's some more current data, too, because other states have
decided that this is becoming a very costly proposition to
them. In 1998, a new report from the Nebraska judiciary
committee concluded that any savings that they had from
executing an inmate were far outweighed by the financial legal
costs; and the conclusion of that report was a recommendation,
or a belief, that the current death penalty was not in the
best interests of Nebraskans.
The federal government has also studied the cost of the death
penalty. There was a report from the judicial conference on
the United States; that report concluded that defense costs
were four times higher in any case where the death penalty was
brought than ... when death was not sought. It also concluded
that prosecution costs were 60 percent higher than the defense
costs, even without adding in all the money provided by law
enforcement agents doing investigations.
A recent study in Louisiana - and that study was done in 1998
- convinced the prosecutor that life in prison would be a
better solution than the death penalty. He said it's a matter
of simple economics: It just costs too much to execute
somebody. You might remember that a couple of years ago New
York was considering whether or not to impose a death penalty;
they have recently done so. But in the studies that they did,
to decide whether or not to implement the death penalty, they
concluded it was going to cost them $118 million a year. The
first death row inmate in New York, a gentleman by the name of
Dale Harris (ph), the entire, total costs of his case are
going to be $3 million; and a recent columnist decided that
after spending $3 million for a capital case, they really had
bought themselves nothing that they couldn't have gotten with
a sentence of life without parole. ...
Washington State is also looking at the cost of their death
penalty. They had determined, according to a 1999 study, that
a single death penalty trial approaches $1 million. The
county - who down in Washington is responsible for providing
those fees - had to let one government position go unfilled;
they've eliminated (indisc.); they've drained a $300,000
contingency fund; they eliminated all capital improvements;
and a sheriff's request to replace a van ... for prisoners,
which has broken down, has been canceled. So, in those
states, the smaller jurisdictions have to pay for it, and are
having a very ... hard time of doing it.
The state of Ohio also did a recent study; this is also from
1999. They spent $1.5 million to kill one person; he actually
was mentally ill and asked to be executed, and didn't even
want any appeals. So, they're finding it to be a pretty high
cost, as well.
Number 2164
REPRESENTATIVE CROFT referred to page 2 of the fiscal note, where
it states the assumption that this would only be done where the
victim was under the age of 18. He agreed with Mr. McCune that as
the bill reads, on page 3, murder in the first degree is a capital
felony, punishable under AS 12.55.125, which lists these "sort of
aggravated first-degree" offenses, including killing a police
officer, having done it before, or clear and convincing evidence of
torture. He asked Ms. Brink how she would change the fiscal note
if they take the bill at its word and include every aggravated
offense, every "mandatory 99" trial, that will be held in Alaska.
MS. BRINK explained that the fiscal note assumption was that the
bill didn't mean what it says and would be corrected in drafting.
As to Representative Croft's question, the calculation would be
difficult to do off the top of her head. For every defendant who
currently gets sentenced to the 99 years, they would do an
additional jury trial, which she doesn't believe would be more than
a couple of cases per year. It would cost her staff additional
investigation, witness testimony and, mostly, time, as a jury trial
is much more time-consuming than is a hearing before a judge. It
is not the same as figuring the cost of capital litigation, she
pointed out.
Number 2289
REPRESENTATIVE CROFT said that Ms. Brink had made assumptions to
bring the fiscal note down, to make it a conservative number. He
asked whether Ms. Brink had used the studies she had cited to make
the fiscal note.
MS. BRINK affirmed that. She had also consulted with Rich Curtner,
the chief federal defender for Alaska, who had testified the
previous day, she said, although he had not identified himself as
such. Because Mr. Curtner is one of the few people in Alaska with
capital litigation experience, she had relied on figures and
information that he had at his disposal.
MS. BRINK reported that she also had looked at the American Bar
Association standards; they have published exclusive guidelines for
the appointment and performance of counsel in death penalty cases.
They require, specifically, that in any case where the death
penalty is sought, two qualified trial attorneys must be assigned
to represent the defendant.
Number 2337
REPRESENTATIVE CROFT remarked that he just wanted to get on the
record that this is, if anything, a conservative fiscal note. He
then stated his understanding that as the bill is drafted, it is a
"sort of superfluous jury trial" if the victim is known to be over
the age of 18. However, it says that "the following aggravating
factors may be considered"; if construed to mean that other
aggravating factors could be considered, then this is no longer a
superfluous trial. He asked whether, under that reading, all of
these "not mandatory 99s" would become death penalty cases.
MS. BRINK agreed it could be read that way, although she believes
they would try to read it in a much more narrow sense. She pointed
out that in addition to the facts of whether the child who died was
under 18, the jury has to decide what punishment is appropriate;
the purpose of the sentencing jury trial is to introduce a whole
variety of evidence concerning the defendant's entire life, so that
the jury can decide that. "So, I don't think a jury trial would
ever be superfluous if the state was asking for capital punishment,
because there would be many more issues happening at the jury
trial, not just proof of the mitigators or aggravators," she
concluded.
Number 2406
REPRESENTATIVE CROFT said that is an interesting point, although he
doesn't know that he understands it. He asked, "If we knew for a
fact that the victim was a 55-year-old, ... what does this empower
that jury trial to determine, other than whether it's capital or
not?"
MS. BRINK said that is the part that doesn't make, the way the bill
is drafted. She explained, "In a capital trial, they usually
draft the statute so that the jury's decision is 'life' or 'death.'
So, they'd have to make that decision, in addition to deciding
whether or not there's enough proof to prove all those aggravators
or mitigators. In this case, if every capital murder - which is
defined as first-degree murder for a jury trial - conceivably, I
suppose, if you gave the statute its most broad interpretation, you
could have the jury deciding what (indisc.) this defendant could be
facing, which is very odd. It would not usually happen under the
Alaska Statutes, where sentencing is purely the province of the
judge." She offered to provide written facts and figures relating
to her earlier testimony.
TAPE 99-32, SIDE B
Number 0001
MS. BRINK mentioned that Los Angeles County spends $3 million per
execution. She expressed concern that the exorbitant cost of
capital punishment is apt to make Alaska less safe, because badly
needed financial and legal resources will be diverted from more
effective crime-fighting strategies. For example, the greatly
increased number of police officers on the street is responsible
for the reduced crime rate, she said, both nationwide and in
Alaska. In states with the death penalty, however, police are
being laid off, prisoners are getting released early, and the court
systems are clogged. Ms. Brink told members, "Let's not turn
Alaska into another state where millions of dollars are poured into
the death penalty machine, with no resulting increase in public
safety."
CHAIRMAN KOTT thanked Ms. Brink and asked that she forward the
studies and statistics to the committee.
Number 0106
MARGO KNUTH, Assistant Attorney General, Office of the Commissioner
- Juneau, Department of Corrections (DOC), came forward, specifying
that she was speaking only for the DOC, not the Department of Law.
She told members that the DOC's fiscal note for HB 75 indicates the
department would need $2.185 million the first year for a capital
expenditure, to build a separate, ten-bed death row facility.
MS. KNUTH explained that other states' experience is that death row
inmates are a distinct population within a prison. They have
nothing to lose. They present a special danger to other inmates
and to correctional officers, with a special risk for escape
attempts. It is not possible to keep death row inmates in the
general prison population. The special facility that would need to
be built would appropriately be at Spring Creek Correctional
Center, the state's current maximum-security facility. Additional
operating expenses for manning this facility are also reflected in
the fiscal note.
MS. KNUTH said the DOC's budget has been cut by the House, by $3
million, this year. [She later corrected this, clarifying that
they had received $3 million less than they need.] She told
members, "One of the things that we do, in trying to evaluate how
to function with a decreased budget, is the first thing to go are
new initiatives; things that we have not started yet are not taken
on. And that makes sense, that when you're trying to evaluate what
to do with finite resources, you have to honor your ongoing
commitments in the first place. And it seems inappropriate to the
Department of Corrections that when we're going to be short maybe
$3 million, for dealing with overcrowding and for trying to deal
with the existing population that we have, that we would incur a $2
million obligation to do something that we have not done in the
state, since statehood. ... The timing is unfortunate."
MS. KNUTH advised members that in ten years of testifying before
this committee, not once had she expressed a personal opinion on a
bill. However, the subject of the death penalty is one that people
obviously have strong feelings about. Noting that as a former
prosecutor she has seen "horrible human beings," she recounted how
Tony Garcia (ph) in Juneau committed one of the most heinous
offenses; he drove out in the Valley, randomly picked a household,
knocked on the door, and stabbed to death the person who answered
the door, with no provocation or justification. She stated, "A
despicable human being. Nonetheless, I've got to tell you, if it's
wrong to kill, it's wrong to kill. And all we do is reduce
ourselves to the level of these offenders, if we take on this
prerogative of saying, 'I'm going to make a value judgment on your
life, and I'm going to decide that it is appropriate, somehow, for
you to be killed. ... It's not a level that state government should
stoop to. It would bring us down to their level, and I know we can
do other things with these offenders. Tony Garcia is never going
to go anywhere, except maybe to Colorado, where he's wanted on
multiple murder convictions, as well."
Number 0305
CHAIRMAN KOTT asked whether the Garcias of the world, who aren't
going anywhere, pose more of a threat, to society and the security
of those charged with looking after them, than those on death row.
He suggested that they have nothing to lose, either.
MS. KNUTH replied, "There actually is something substantively
different about facing death, the death penalty. We do have a
number of inmates in Alaska who are serving 99-, 300-, 400-year
sentences. And, in fact, I'll guarantee you that they were
involved in the manufacture of the desks that you are sitting at
now. Most of our correctional industries workers are convicted
murderers who have these extremely long sentences. And I've been
through Spring Creek. I've been to the program there. I've met
them. And they're good workers. ... They're in there for the long
haul, and they're proud ... to have a useful activity. And so,
you've got different types of people. Tony Garcia is not the type
of person I'm describing. I mean, he really is a loathsome human
being. But there is a group of murderers out there who are in
their 50s, and even older now, who are making a contribution
somehow. And so, as is always true, there's a continuum of people
out there, and there'll be some who are like Tony Garcia, but
that's the exception."
Number 0393
CHAIRMAN KOTT referred to the DOC's fiscal note, which anticipates
construction of a ten-bed facility to house these death row
inmates. He asked whether the average appeals time for those on
death row is ten years, and whether some of those could extend
beyond ten years. He noted that if there were more than one
capital case per year, there could be a need for additional beds.
MS. KNUTH replied, "You're quite right, and especially if we're to
consider that Alaska's population is predicted to continue
increasing. If we have just one capital case a year now, sooner or
later our population is going to double, and that, in itself, will
increase numbers." She indicated the fiscal note assumes some
degree of stability in the state.
CHAIRMAN KOTT asked, "Can you anticipate what we would do, in the
event that we had more on death row than we had the ability to
accommodate? Ship them out to Arizona?"
MS. KNUTH replied, "By the way, Mr. Chairman, Arizona won't take
our worst boys. We have to keep them. Private prisons don't want
the Tony Garcias. They will not take them. And that's something
we need to keep in the back of our minds when we're using private
prisons. They do not want your maximum-security inmates. They
want 'mediums.' ... We would have to ... expand it somehow, and a
facility like this would have to be built so that it could be
expanded."
Number 0476
REPRESENTATIVE CROFT pointed out that the Public Defender Agency
had estimated two to three capital cases per year, whereas in
constructing the ten-bed facility, the DOC estimated one bed per
year for the fiscal note.
MS. KNUTH affirmed that, explaining that there is a significant
difference between the number of cases tried and the number of
convictions anticipated.
REPRESENTATIVE CROFT asked whether, if Alaska had had a death
penalty, Tony Garcia would have known that and therefore been
deterred.
MS. KNUTH responded, "As Mr. Campbell so eloquently testified
yesterday, the more depraved the person, the less likely there is
any rational process going on. And deterrence assumes a rational
thought process. Deterrence works wonderfully for me. I am
personally never going to do something that places me in [the]
prison population, because I don't want to be there. But we've got
judgment-impaired people, and those are the ones who commit the
worst offenses, and they have the least going on upstairs. And we,
as a society, have never found an adequate way of dealing with
them."
Number 0546
REPRESENTATIVE GREEN asked whether there is any chance, in Ms.
Knuth's estimation, that a judge may someday find a disparity
between the treatment of those like Garcia and those like the men
who make furniture, ruling that it is somehow inequitable, although
both groups would be serving 99 years or more.
MS. KNUTH replied that departments of corrections are given fairly
broad latitude in evaluating the risk posed by inmates, and are
expected to make individualized determinations. "So, I think not,"
she concluded.
Number 0638
REPRESENTATIVE ROKEBERG stated his understanding that the
legislature had raised the DOC budget by $5 million this year, and
that perhaps it was the request that was $3 million less.
MS. KNUTH replied, "We were underfunded $3 million from what we
believe is essential to meet our current population. But thank you
for the correction."
REPRESENTATIVE ROKEBERG said he believes there was testimony before
the finance subcommittee, by the commissioner, that they've reached
a plateau on population growth. He asked whether Ms. Knuth knows
if that is still holding up in the last month.
MS. KNUTH answered, "We are experiencing some growth, but not as
much as had been forecasted, say, a year ago. And we're very
fortunate in that regard. But we are overexpense, overbudget; for
example, at Cook Inlet facility, we're holding more inmates there
than we have room for, because Anchorage is the service hub for
medical services and items like that. So, even though our total
population is being very cooperative with our budget crisis, we do
still have a problem."
Number 0703
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed public testimony.
Number 0721
REPRESENTATIVE GREEN commented that this is the third death penalty
bill that he has seen in this committee over seven years. He noted
that the general public sometimes doesn't have access to this much
detail, and polls often reflect how a question was asked. In a
poll in his own district, the initial question was asked: Do you
favor the death penalty? And 60 percent said yes. However, when
asked whether they would favor it if they knew that the cost was
two and a half times as great, the same respondents changed their
answers, and the positive answers fell below 50 percent. He
pointed out that that doesn't go to the moral issue or the issue or
later proving that someone is innocent. He also noted that Texas
is now reconsidering whether they should keep the death penalty.
Representative Green concluded by saying he has reservations about
even moving this from the committee.
Number 0874
CHAIRMAN KOTT asked the sponsor whether the intent is to try to
convict and execute a 15-year-old for killing a 12-year-old.
REPRESENTATIVE MASEK replied, "The intent of the bill was not to
put a 15-year-old to death. It's for people that are over the age
of 18, for adults that prey upon children, and that being children
under the age of 18."
CHAIRMAN KOTT noted that there had been discussion that Section 6
leads one to believe that those who committed a murder in the first
degree would fall within the purview of the bill, based on the
aggravators. He asked whether that is the intent.
REPRESENTATIVE MASEK answered, "Well, the title is pretty
restrictive, Mr. Chairman. It says for murder of the child." She
said that any other language therefore will not change what the
title says.
CHAIRMAN KOTT maintained that there is a problem with that one
section. He pointed out that even the title says "An Act relating
to murder;" at the beginning. He said he doesn't know if that is
the intent, to go that far.
REPRESENTATIVE MASEK replied, "No, that isn't the intent. It was
just for those that kidnap and assault and murder children."
Number 1033
REPRESENTATIVE ROKEBERG said there seem to be technical problems
that need to be worked on.
CHAIRMAN KOTT agreed, acknowledging that there are other issues, as
well. He noted that testifiers the previous day had provided good
information, and that the committee had requested background
information and studies from one family member who had testified,
as well as statistics from Barbara Brink regarding costs. Chairman
Kott said although this committee is not charged with the financial
aspects, the bill certainly does have costs associated with the DOC
and the judiciary that should be addressed. He said he wants to
work with the drafter regarding the intent.
CHAIRMAN KOTT assigned HB 75 to a subcommittee, to be chaired by
Representative Green. Also on the subcommittee would be
Representatives James and Croft. He asked them to try to iron out
the difficulties with the legal side, after which they perhaps
could discuss other issues.
REPRESENTATIVE GREEN asked whether they could seek outside
expertise on legal issues.
CHAIRMAN KOTT agreed to that, emphasizing the need to start with
something that clearly is indicative of the will of the sponsor.
[HB 75 was held over.]
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