Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/16/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB58 | |
| SB72 | |
| SB11 | |
| SB39 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 58 | TELECONFERENCED | |
| += | SB 72 | TELECONFERENCED | |
| *+ | SB 11 | TELECONFERENCED | |
| + | SB 39 | TELECONFERENCED | |
| + | TELECONFERENCED |
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.
| 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 |