Legislature(2019 - 2020)GRUENBERG 120
02/04/2020 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB198 | |
| HB182 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 198 | TELECONFERENCED | |
| *+ | HB 182 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 198-AGGRAVATING FACTORS AT SENTENCING
3:01:49 PM
CO-CHAIR FIELDS announced that the first order of business would
be HOUSE BILL NO. 198, "An Act relating to aggravating factors
considered at sentencing."
3:02:21 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor of HB 198, relayed that the proposed legislation
would create a modified statutory aggravator based on gender
identity and sexual orientation in paragraph (22) of the
aggravators [listed under AS 12.55.155(c)]. He said
approximately 32 states recognize some form of specific legal
safeguard within their respective criminal codes for persons of
the lesbian, gay, bisexual, transgender (LGBT) community or some
subset of the same. "Essentially 32 touch on some sort of
criminal aggravator in that larger cohort." It is accomplished
by providing a sentencing enhancement - or aggravator - in cases
in which the victim was targeted because of the individual's
gender identity or sexual orientation status. He mentioned that
"targeted" is self-explanatory.
REPRESENTATIVE JOSEPHSON explained that the enhanced sentence
could be perceived as either a deterrent to misconduct by a
perpetrator or protection of same sex orientation persons - a
historically victimized group of Americans. Alaska law lacks
any provision offering further deterrents - or punishment - to
defendants who target persons based on their gender identity or
orientation status. He lamented that sadly it sometimes takes a
horrific and unfortunate event to engender willingness to
provide a public statement in support of enhanced sanctions for
the targeting of persons based on qualities inherent in them.
Alaska recently experienced that type of incident.
REPRESENTATIVE JOSEPHSON continued by saying that typically when
a person is victimized by a felony outside of any targeting
related to his/her race, sex, disability, or such, a presumptive
statute applies and the greater society - while angered and
frustrated - is not specifically imperiled. He stated:
If we all see on the local news or read in the paper
that there was an assault, often we ask ourselves was
the person ... arrested and detained, and we are
relieved when we hear they were. And if you're not in
some defined protected group, you may view it in a
certain way as well. That is, if it was a crime of a
general nature, not targeting any specific group, then
... the normal human reaction is to say, "We have a
crime problem," but to be more relaxed certainly once
an arrest is made, but not suffer the anxiety that
goes with realizing the person who was targeted is a
person whose group I'm in too.
REPRESENTATIVE JOSEPHSON relayed that where there are
indications that a subset of society is an intentional target of
attack, that group can feel particularly threatened and with
cause. He mentioned [the 1993 U.S. Supreme Court case]
Wisconsin v. Mitchell - a case involving a white victim attacked
by African Americans. The Wisconsin Supreme Court asserted that
the legislature cannot have a constitutional law that aggravates
a sentence. Chief Justice [William] Rehnquist gave the opinion
that "hate crimes" are constitutional; he was concerned that
such crimes could create a state of anxiety that legislators
should feel free to protect.
3:06:41 PM
REPRESENTATIVE JOSEPHSON further stated that presently there are
37 different sentencing enhancements in Alaska law that allow
the court to add sentence time beyond the statutory presumptive
period. Currently AS 12.55.155(c), paragraph (22), specifies
that a sentence can be aggravated where "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"; under HB 198,
five words would be added - "sexual orientation or gender
identity". He said that Alaska is one of the 45 states that
have hate crimes, but not one of the 32 states that include
gender identity and sexual orientation [as a basis for a hate
crime].
REPRESENTATIVE JOSEPHSON added that under HB 198, the crime
would be charged as usual, and the prosecutor would be required
to announce the he/she will seek an aggregator. He said that
under the U.S. Supreme Court decision, in most instances the
same 12 jurors that made a felony conviction would be required
to determine whether beyond a reasonable doubt an aggravator has
been proven; that is, there was some hostility or hatred of that
targeted person.
3:09:17 PM
REPRESENTATIVE GARY KNOPP, Alaska State Legislature, as a co-
sponsor of HB 198, relayed that the incident that prompted the
proposed legislation occurred in his community. He stated that
the LGTB community is broadly defined and has grown across the
state. He was surprised to see 200 people attend a town meeting
in support of the LGBT community; the request of the group was
that the list of hate crime aggravators be expanded to include
sexual orientation and gender identity.
REPRESENTATIVE KNOPP described the three incidents that occurred
to the victim, Tammie Willis: a homophobic note was found on
her vehicle; her vehicle windshield and front end were smashed
in by a large boulder; and she was attacked at home by knife and
severely injured. He maintained that a prosecutor has a huge
hurdle to overcome in providing proof of an aggravator. He said
that the proposed legislation is in response to a request from
his community. To people who suggest that he is creating a "new
class of people" with special protections, he responds that they
are the same protections that are extended to any class of
people. He said that he expects that the list of aggravators in
statute will increase over time. He referred to the
"discrimination bill" [House Bill 184, introduced in the
Thirtieth Alaska State Legislature, (2017-2018)] and emphasized
that "we don't discriminate in this day and age for any reason."
REPRESENTATIVE KNOPP offered that some people don't like the
LGBT community; he is not asking them to like the LGBT
community; however, he is advocating that individuals in the
LGBT community are entitled to the same protection as other
groups.
3:13:25 PM
REPRESENTATIVE JOSEPHSON suggested getting data from the
Department of Law (DOL) on the number of times - out of 37
aggravators - paragraph (22) is the basis for an increase in
sentence above the presumptive range. He expressed his belief
that the use of paragraph (22) [in sentencing] is very uncommon
and maintained that the use of sexual orientation or gender
identity as an aggravator also would be uncommon; however, he
stated, "You need it when you need it, because if you don't have
it, then you're effectively saying this is just a typical
assault, when it's not a typical assault." He further
maintained that it is common in the criminal code to rely on the
facts to tell as best they can what is transpiring in the mind
of the assailant or offender. An example is a premeditated
homicide versus a homicide committed in a state of impassioned
fury; the premeditated homicide is treated more severely. He
added, "Here you're talking about the targeting of someone in a
very deliberate way, systematic way."
CO-CHAIR FIELDS asked Representative Knopp to discuss the
resolution passed by the City of Soldotna in support of HB 198.
REPRESENTATIVE KNOPP replied that the City of Soldotna passed a
resolution in support of the proposed legislation; the meeting
of about 200 people included many public officials from both
Kenai and Soldotna, as well as broad support. The City of Kenai
will consider a similar resolution tomorrow [2/5/20].
3:16:27 PM
REPRESENTATIVE VANCE asked why sexual orientation and gender
identity do not fall under "sexual discrimination," which is
already in statute.
REPRESENTATIVE JOSEPHSON responded that the issue is currently
before the U.S. Supreme Court. The essence of the dispute is:
the [President Barak] Obama administration's position was that
"sex" could include gender identity and sexual orientation; the
[President Donald J.] Trump administration has declared that it
absolutely does not. The dispute before the U.S. Supreme Court
is not about a criminal matter; however, one might argue that
the standard for defending an appellate review would be stricter
in a criminal case, because someone's freedom is at stake. The
court would interpret the law narrowly, and most likely a
challenge to a ruling based on gender identity and sexual
orientation being included under "sexual discrimination" would
fail. He expressed his belief that [as the statute is written]
Ms. Willis would not see her assailant suffer any additional
sentence.
3:18:55 PM
REPRESENTATIVE VANCE suggested that in view of "sexual
discrimination" being narrowly defined by the courts,
definitions for sexual orientation and gender identity should be
added to the statute.
REPRESENTATIVE JOSEPHSON expressed his belief that no
definitions were included for any of the aggravators - creed,
disability, and so on. He suggested that to do so would be
burdensome and provocative; "it would needlessly delay the
movement of the bill in a way that ... misses the point." He
maintained that what is being discussed here is: "What's in the
mind of the defendant?" He said that it is less important
whether someone truly was a same sex-oriented person; what is
important is that the defendant believed the person was. He
stated that there are many instances for which the Alaska
Supreme Court goes to the dictionary for definitions. He
suggested that Representative Vance could offer a definition;
however, he opined that it is not required.
REPRESENTATIVE VANCE expressed that before the law is imposed on
the members of a jury, the [parameters] of the terms should be
narrowly defined. Deciding what a defendant is believing or
thinking is a heavy burden on jurors; the legislature should
provide the scope of what the legislative intent is.
3:21:55 PM
REPRESENTATIVE HOPKINS asked Representative Knopp what the note
on Ms. Willis's vehicle said.
REPRESENTATIVE KNOPP replied he did not remember exactly. He
confirmed that the note referred to the victim's sexual
orientation, not gender. In response to Representative Vance,
he said that in conversations with lawyers, they confirmed the
distinction - not hating a person because of gender but because
of being gay or having had a transgender operation. He
mentioned that the lawyers said, "That's the difference. You
don't necessarily hate the "sex," but you do when they modify
their behavior in that sense." He maintained that is the reason
for needing "sexual orientation" in the proposed legislation.
He added that the perpetrator acts on his/her hatred; it's not
just a single act, but repeated acts; and not something he/she
would do against any other male or female.
REPRESENTATIVE JOSEPHSON said that to be clear, the definitions
follow the chapter. He referred to the definitions for the
chapter listed under AS 12.55.185 and pointed out that race,
sex, color, creed, physical or mental disability, ancestry, and
national origin are not defined. He maintained that the state
has had this list of aggravators for decades, and there has been
no need to define the terms. He opined that defining the terms
is unnecessary.
CO-CHAIR FIELDS commented on the incident.
3:26:16 PM
CO-CHAIR KREISS-TOMKINS asked whether the DOL Criminal Division
has been consulted to answer the question of whether the current
hate crime laws would encompass the incident in Soldotna. He
expressed his agreement with Representative Josephson's
understanding that they would not; however, a DOL opinion might
assuage any doubts on the matter.
REPRESENTATIVE JOSEPHSON answered, "That consultation has not
happened." He reiterated that 32 states have adopted similar
measures; 6 or 7 very "red" states protect this class of people.
He asserted that these people are not being protected; they are,
in some cases, viciously assaulted and murdered. The Federal
Bureau of Investigation (FBI) hate crime data supports the fact
that by percent, the LGBT community - more than any other
community - is victimized. He added that using the word
"protection" suggests a special privilege; he pointed out that
it is only a special privilege for those assaulted or murdered
or otherwise victimized by a felony. He said, "It's not a
category to begrudge. It's a category to protect. ... There's
always going to be crime, and if it's a generic - sort of
general crime - we apply a presumptive sentence. But for
decades, starting in the '60s, we said under ... hate crimes,
we're going to enhance sentences if you're bringing a certain
animus, because that animus hurts everyone in the society in a
unique way."
REPRESENTATIVE STORY thanked the representative for introducing
the bill.
3:29:15 PM
REPRESENTATIVE SHAW mentioned that any crime directed toward any
person could be hateful and could be regarded as a hate crime.
He suggested [a crime resulting from] social interactions
between families - a husband kills a wife and a child -
committed out of hate. He asked, "When do we stop adding to the
aggravated factors and not just say a hate crime could very well
be attached to literally any crime in some respect?"
REPRESENTATIVE JOSEPHSON answered, "If you are a six-foot-six
red-haired ... man, you are not going to be targeted because
you're [a] six-foot-six red-haired person." He offered that the
additional category in paragraph (22) evolved because "the facts
are in that in these other groups, you very well might." He
pointed out the irony of Justice Rehnquist - a very conservative
justice - authoring the 1993 decision, which offered protection
for a white person being attacked based on race and enhancing
the sentence for the crime.
CO-CHAIR FIELDS referred to the "six-foot-six red-haired man"
example and pointed out that over 100 years ago Irish people
were not considered white; therefore, if these laws had been in
place at the time, a crime against an Irishman - because he is
Irish - would have been considered a hate crime. Irish people
are now considered white. He suggested that the trend is toward
fewer groups being excluded as different, which is a positive
trend.
[A copy of the note left on the windshield in the Soldotna
incident was passed out to the committee members. It was not
included in the committee packet.]
3:32:59 PM
NATHANIEL GRABMAN, Staff, Representative Andy Josephson, on
behalf of Representative Josephson, prime sponsor of HB 198,
presented a PowerPoint presentation, entitled "HB 198: An Act
Relating to Aggravating Factors Considered at Sentencing." He
began with slide 2, entitled "Aggravating Factors in
Sentencing," which read:
If a defendant is convicted of a crime, they will then
be sentenced. A large number of factors may be
considered during this phase.
AS 12.55.155(c) contains 37 separate factors which, if
proven, shall be considered at sentencing, and allow
for additional sentencing beyond the presumptive range
spelled out in AS 12.55.125.
In conjunction with AS 12.55.125(d), mitigating and
aggravating factors may be considered when a defendant
is sentenced, and may increase or decrease the overall
sentence imposed.
MR. GRABMAN turned to slide 3, entitled "Why Do We Have
Aggravating Factors?" and explained that people recognize that
many of the things they do and say occur in "shades of gray."
He reviewed the information on the slide, which read:
?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.
MR. GRABMAN added that society has decided not to condone
certain biased motivated attacks on individuals or groups. He
moved on to slide 4, entitled "HB 198 Amends Aggravator 22,"
which read:
?AS 12.55.125(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"
?HB 198 adds "sexual orientation or gender identity"
to this list.
MR. GRABMAN referred to the charts in slide 5, which graphically
represent FBI data from 2015-2018. He stated that the data
shows that biased motivated attacks due to sexual orientation
has been trending upward for the last four years for which data
is available. The data also demonstrates that gender identity
crimes saw a 30 percent spike in the last year of the data.
MR. GRABMAN turned to slide 6, entitled "Alaska is not Immune"
to reference some Alaska headlines about the incident.
REPRESENTATIVE VANCE asked whether the FBI data consisted of
U.S. statistics or Alaska statistics.
MR. GRABMAN replied, "These are U.S. statistics." He referred
to a [Cable News Network (CNN)] video at the end of the slide
show which reports that the statistics are inadequate and
underreported. He added that the numbers on the chart reflect
what has been reported to the FBI.
MR. GRABMAN turned back to slide 6 to point out that the events
that occurred in Soldotna from the time of the note on the
windshield to the time of the resolution of support by the
Soldotna City Council was a matter of months.
MR. GRABMAN moved on to slide 7, entitled "Existing State Laws
Nationwide," to point out that 4-5 states do not have any
aggravators in statute; two-thirds of states have some
protection for these classes.
REPRESENTATIVE JOSEPHSON reminded the committee before watching
the video that the matter [addressed by HB 198] is partially
covered by federal law; however, there is no federal nexus for
the assault of the victim at her home in Sterling.
3:38:10 PM
[A three-minute video, produced by CNN and entitled "Hate Crimes
Statistics Explainer," was played for the committee. The link
to the video was displayed on slide 8, which read:
https://www.cnn.com/videos/us/2019/11/07/hate-crime-statistics-
explainer-orig.cnn].]
3:42:26 PM
KAREN LOEFFLER relayed that she was a 30-year federal prosecutor
and finished her career as a U.S. Attorney [for the District of
Alaska]. She stated that the first line in the protector of
community members against the types of assaults being discussed
is the state. The federal government has civil rights laws, but
they are secondary to state law; they involve situations in
which individuals are attacked because of their status while
they are engaged in federally protected activities; therefore,
the protection is limited. The primary protection against
people based on their status comes from the state.
MS. LOEFFLER continued by saying that it is very common for
judges to consider the motivation of an attacker - both as a
litigator and as an aggravator. She explained that community
consciousness makes attacking someone solely based on status is
abhorrent to society. In Alaska and federally, there were no
special protections for people attacked solely due to gender
identity or sexual orientation. That changed in 2009 with the
[Matthew] Shepard and [James] Byrd [Jr. Hate Crimes Prevention]
Act, which added protection for sexual orientation after the
attack on [Matthew Shepard in Wyoming in 1998].
MS. LOEFFLER relayed that people who choose to attack someone
they do not know based solely on who that person is or on
specific characteristics of the person - and not on the
circumstances of a situation - are more dangerous to society and
its future. She stated that she supports the proposed
legislation because it "fills a hole" that the public became
aware of due to the incident in Soldotna. She added that
statutes such as the one proposed by HB 198 are rarely utilized
but "when this type of thing happens, we need them to be there."
CO-CHAIR FIELDS repeated Representative Vance's question about
having more comprehensive definitions in statute and whether it
would make a difference for prosecuting hate crimes.
MS. LOEFFLER replied that generally terms such as those included
in the proposed legislation are not defined within statute. She
offered that there is a difference between attacking someone
because the person is male or female and attacking the person
because the person is gay.
CO-CHAIR FIELDS stated that HB 198 would be held over.