Legislature(2007 - 2008)CAPITOL 120

03/27/2008 01:00 PM House JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 211 AGGRAVATING FACTOR: HOMELESSNESS TELECONFERENCED
Heard & Held
+ SB 101 GUARDIANSHIP/ CONSERVATORS/INCAPACITY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
SB 211 - AGGRAVATING FACTOR: HOMELESSNESS                                                                                     
                                                                                                                                
2:25:57 PM                                                                                                                    
                                                                                                                                
[Contains brief mention of HB 292, companion bill to SB 211.]                                                                   
                                                                                                                                
CHAIR RAMRAS announced that the  final order of business would be                                                               
SENATE BILL  NO. 211, "An  Act relating to an  aggravating factor                                                               
at  sentencing for  crimes directed  at a  victim because  of the                                                               
victim's homelessness."                                                                                                         
                                                                                                                                
CHAIR RAMRAS asked whether SB 211 is identical to HB 292.                                                                       
                                                                                                                                
SENATOR BETTYE DAVIS, Alaska  State Legislature, sponsor, offered                                                               
her understanding that it is.                                                                                                   
                                                                                                                                
2:27:06 PM                                                                                                                    
                                                                                                                                
TOM  OBERMEYER,  Staff  to Senator  Bettye  Davis,  Alaska  State                                                               
Legislature, offered that SB 211  would add an aggravating factor                                                               
at  sentencing for  crimes directed  at a  victim because  of the                                                               
victim's homelessness.   This bill  allows the court  to increase                                                               
the term of  imprisonment, up to the maximum, for  even the first                                                               
offense.   Currently, the aggravated sentencing  provisions of AS                                                               
12.55.155(c)(22)  allow  imposition  of   a  sentence  above  the                                                               
presumptive  range set  out in  AS  12.55.125, if  the crime  was                                                               
committed on the  bases of the victim's race,  sex, color, creed,                                                               
physical  or mental  disability,  ancestry,  or national  origin.                                                               
Senate Bill 211  adds homelessness to that list,  and its purpose                                                               
is  to deter  and punish  defendants motivated  to harm  homeless                                                               
people  who  are  particularly vulnerable  and  are  increasingly                                                               
targets of  crime.   He pointed out  that violent  crimes against                                                               
homeless people have increased by  65 percent, from 2005 to 2006,                                                               
according to the 2006 [report]  by the National Coalition for the                                                               
Homeless.   This  represents  a 170  percent  increase since  the                                                               
organization's  first  study in  1999.    The national  trend  is                                                               
reflected  in  more  than   14,000  individuals  who  experienced                                                               
homelessness  in  Alaska  each  year,  according  to  the  Alaska                                                               
Interagency Council  on Homeless report, Keeping  Alaskans Out of                                                               
the  Cold.   This  violence  against the  homeless  has a  direct                                                               
impact on  the victim,  the victim's  family, the  community, and                                                               
Alaska as a whole.                                                                                                              
                                                                                                                                
MR. OBERMEYER  relayed his understanding  from other  research in                                                               
Alaska that  about 25 percent  of the homeless are  veterans, and                                                               
that about 5,000  children are homeless each year.   The homeless                                                               
include  families and  not  just derelicts.    The definition  of                                                               
homeless that the Alaska Housing  Finance Corporation (AHFC) uses                                                               
in part  reads, "Any individual  who lacks a fixed,  regular, and                                                               
adequate  nighttime   residence  or   has  a   primary  nighttime                                                               
residence  in any  facility not  designed for  permanent living".                                                               
He surmised that this definition  would include those that end up                                                               
in a  nighttime shelter, or who  are, in fact, living  out on the                                                               
street.  In  response to a question, stated  that that definition                                                               
generally means a person without a regular nighttime shelter.                                                                   
                                                                                                                                
2:30:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG recalled  camping out  with friends  or                                                               
temporarily staying  with friends  while awaiting  the sale  of a                                                               
home.  He  asked whether the term homeless  could include someone                                                               
who is camping out  in a tent.  He suggested  that the term needs                                                               
to be defined for purposes of SB 211.                                                                                           
                                                                                                                                
MR.  OBERMEYER  said  he  believes  that  the  definition  should                                                               
include those  who are in  a temporary circumstance,  since those                                                               
people are  also more vulnerable.   He  surmised that as  soon as                                                               
someone  is not  in permanent  housing, he/she  is at  risk.   He                                                               
opined that  SB 211 is intended  to protect those people  who are                                                               
intentionally being sought out by  someone in order to perpetrate                                                               
hate  crimes against  them.   He noted  members' packets  contain                                                               
information  on   specific  instances   of  crimes   against  the                                                               
homeless.   He reiterated  that SB 211  would add  an aggravating                                                               
factor for sentencing  in instances in which a  perpetrator has a                                                               
predisposition to pick  on someone who is  vulnerable [because of                                                               
his/her homeless status.                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated that  while he supports  SB 211,                                                               
his  is interested  in determining  whether the  committee should                                                               
define the term, "homelessness".                                                                                                
                                                                                                                                
MR.  OBERMEYER  opined  that  such  a  definition  would  not  be                                                               
necessary due  to the difficulty  in capturing all of  the people                                                               
that should  be included; some  people might fall outside  of any                                                               
such definition.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his  belief that a  judge would                                                               
likely  determine that  instances in  which a  victim is  staying                                                               
with a relative or friend for  several weeks would not fall under                                                               
the term,  "homelessness."  He  suggested that the sponsor  use a                                                               
narrower definition  so that  no question  exists for  the judge.                                                               
The  rule of  lenity, he  surmised, allows  that statutory  terms                                                               
will  be  construed  as  narrowly  as  possible  to  protect  the                                                               
accused.                                                                                                                        
                                                                                                                                
2:35:29 PM                                                                                                                    
                                                                                                                                
SENATOR DAVIS elaborated  that SB 211 is intended  to affect more                                                               
than just street  people.  She explained  that the aforementioned                                                               
definition for "homelessness" is used  for housing purposes.  She                                                               
pointed out  that her son is  living in her home  temporarily but                                                               
if a  census were  taken, he  would not be  counted; he  would be                                                               
considered homeless.   Therefore, the term "homeless"  as used in                                                               
the bill  does not just refer  to people living on  the street or                                                               
those who don't have a place to go.   And if a person is down and                                                               
out and  is facing a foreclosure  and not just a  pending sale of                                                               
his/her home,  that the person  would also be vulnerable  at that                                                               
point and likely could be considered homeless as well.                                                                          
                                                                                                                                
CHAIR RAMRAS pointed  out that everyone is  vulnerable to assault                                                               
crimes, and listed an example.   He stated that he is not certain                                                               
in his  own mind  that those  who are  homeless should  enjoy any                                                               
greater rights than other folks who are not homeless.                                                                           
                                                                                                                                
SENATOR DAVIS  noted that  legislators are here  to make  laws to                                                               
help people who cannot help themselves.                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  questioned why a judge  should be allowed                                                               
to  sentence a  perpetrator  depending on  the victim's  homeless                                                               
status, since  the crime  would be the  same were  it perpetrated                                                               
against someone  who was not homeless.   For example, if  a woman                                                               
is raped,  the impact of  that violent crime  is the same  on the                                                               
victim regardless of whether she  is homeless.  He explained that                                                               
he is struggling  with the concept of creating  a different class                                                               
of victim.  He suggested  that the committee consider raising the                                                               
sentences for all of these  crimes rather than to add aggravating                                                               
factors  for  the homeless.    He  opined that  to  differentiate                                                               
between the  two types  of victims  illustrates the  problem with                                                               
SB 211.                                                                                                                         
                                                                                                                                
REPRESENTATIVE LYNN  asked how the  provisions of the  bill would                                                               
be  applied in  the instance  of one  homeless person  assaulting                                                               
another homeless person.                                                                                                        
                                                                                                                                
MR. OBERMEYER answered that an  aggravating factor would apply by                                                               
definition.   In response to Representative  Samuels, he recalled                                                               
from his own  experience in traveling the Chester  Creek trail in                                                               
Anchorage  that many  Native women  sleep  in the  woods and  are                                                               
constantly  assaulted  simply  because  they are  homeless.    He                                                               
opined  that  the homeless  person  has  a higher  propensity  to                                                               
become a  victim than  someone who  is not  homeless.   He opined                                                               
that while it is possible  to define "homeless", he believes that                                                               
the term is generally understood  and so almost doesn't require a                                                               
definition.   He said he thought  that it might be  helpful to us                                                               
the definition of homeless from  the National Council on Homeless                                                               
Model Legislation, rather than the  AHFC's definition because the                                                               
latter delves  into housing issues as  well.  He opined  that the                                                               
concept  of  this   bill,  to  add  an   aggravating  factor  for                                                               
homelessness, is appropriate.                                                                                                   
                                                                                                                                
REPRESENTATIVE HOLMES  referred to  articles in  members' packets                                                               
that contain information about perpetrators  and crimes they have                                                               
committed.  She relayed that  she found the articles frightening,                                                               
particularly  those  about  people  preying  on  homeless  people                                                               
simply because  they think they  will not face  any consequences.                                                               
She offered her belief that the  average person who is jogging on                                                               
a coastal trail  has more ability to deal with  the after effects                                                               
of  the  crime  such  as   the  question  of  whether  to  pursue                                                               
prosecution.  She pointed out  that that certainly doesn't negate                                                               
the nature  of the crime  or make it  less horrific.   She opined                                                               
that when perpetrators target the  homeless because they think of                                                               
them as being  less human, that's a worthwhile  distinction to be                                                               
made with regard to increased sentencing.                                                                                       
                                                                                                                                
2:44:05 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS offered his understanding  that the working poor and                                                               
a  percentage  of  the  productive  population  move  from  being                                                               
homeless  to  living in  a  home.    He  offered to  provide  the                                                               
committee with  such statistics from the  community of Fairbanks.                                                               
He questioned  whether a person's  rights are  materially changed                                                               
if the person has a home except  for the months of May, June, and                                                               
July.   He offered  his belief  that one  victim should  not have                                                               
more  rights than  another victim  simply due  to his/her  living                                                               
conditions.                                                                                                                     
                                                                                                                                
SENATOR  DAVIS questioned  whether  Chair  Ramras disagreed  with                                                               
that section of the law.                                                                                                        
                                                                                                                                
CHAIR  RAMRAS stated  that he  is  troubled by  proposals to  add                                                               
aggravating  factors and  enhanced penalties  in statute,  adding                                                               
that although he is sympathetic  to the concern about hate crimes                                                               
and views the actions against the  homeless as hate crimes, he is                                                               
still  concern  about  extending additional  rights  to  specific                                                               
groups of people.   He stated that while he  is empathetic with a                                                               
homeless  person's increased  vulnerability, he  is not  moved to                                                               
add an aggravator factor for sentencing.                                                                                        
                                                                                                                                
MR. OBERMEYER asserted that SB 211  does not change the rights of                                                               
an  individual victim;  instead it  merely increases  the judge's                                                               
discretion for  recognizing an  aggravating factor  at sentencing                                                               
if  it was  determined that  the victim  had a  crime perpetrated                                                               
against them  because he/she  was homeless.   He surmised  that a                                                               
person who is  staying at someone's home is  more vulnerable than                                                               
someone living in his/her own home.                                                                                             
                                                                                                                                
CHAIR RAMRAS suggested that "vulnerable"  is a defining term, and                                                               
offered that  victims are looking for  satisfaction and sometimes                                                               
restitution.   He  opined  that those  who  have been  assaulted,                                                               
regardless of  whether they  are homeless  or have  a disability,                                                               
all  feel that  they  are  entitled to  seek  the  same level  of                                                               
justice.  He stated that he  supports fairness for all victims in                                                               
seeking justice.                                                                                                                
                                                                                                                                
2:53:30 PM                                                                                                                    
                                                                                                                                
MR.  OBERMEYER   stated  that  SB   211  would  not   change  the                                                               
seriousness of  a crime;  again, it would  simply give  the judge                                                               
the  ability  to  increase  sentencing.     He  opined  that  the                                                               
prosecutor and  judge would  need to  exercise judgment  in these                                                               
cases.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  LYNN  surmised that  the  difficulty  will be  in                                                               
determining  the motivation  of  the perpetrator  in attacking  a                                                               
particular person  unless the perpetrator made  statements to the                                                               
effect  that  he/she  attacked  the  person  because  of  his/her                                                               
homeless status.                                                                                                                
                                                                                                                                
MR.  OBERMEYER  explained  that  each   case  would  need  to  be                                                               
determined on a case-by-case basis.   However, he opined that the                                                               
propensity for  being attacked  is much higher  if the  person is                                                               
homeless.                                                                                                                       
                                                                                                                                
2:56:16 PM                                                                                                                    
                                                                                                                                
GEORGE BRIGGS,  Executive Director, Juneau  Cooperative Christian                                                               
Ministry,  indicating that  his organization  is currently  doing                                                               
business  as  the Glory  Hole,  stated  that he  recognizes  that                                                               
aggravating factors  are very  difficult to  prove.   He surmised                                                               
that perhaps only one such case  might be proved.  Regardless, it                                                               
is  important  for  a  judge  to have  the  ability  to  consider                                                               
aggravating  factors at  sentencing so  that when  the prosecutor                                                               
can prove  that a  person was  attacked on  the basis  of his/her                                                               
homelessness,  it  would be  considered  a  hate crime  and  thus                                                               
subject to  the aforementioned aggravating  factor.   In response                                                               
to Chair  Ramras, he noted  that the  Glory Hole serves  about 40                                                               
for  breakfast  and  about  100  for  dinner,  and  is  a  40-bed                                                               
facility.                                                                                                                       
                                                                                                                                
SENATOR DAVIS asked for suggestions to improve the bill.                                                                        
                                                                                                                                
CHAIR RAMRAS  said he  has trouble  with the  bill fundamentally,                                                               
and stated that he did not intend to move SB 211 at this time.                                                                  
                                                                                                                                
SENATOR DAVIS  clarified that  she is  merely requesting  that SB
211 be allowed to move to the House floor.                                                                                      
                                                                                                                                
CHAIR RAMRAS  said he is  not sure how  SB 211 could  be improved                                                               
given that it is only proposing a one-word change.                                                                              
                                                                                                                                
SENATOR  DAVIS opined  that if  this  bill passes  and helps  one                                                               
homeless person, then it is worth passing.                                                                                      
                                                                                                                                
REPRESENTATIVE LYNN  noted that it  would helpful for him  if the                                                               
bill contained a narrower definition of the term "homelessness".                                                                
                                                                                                                                
SENATOR DAVIS expressed a willingness to consider that point.                                                                   
                                                                                                                                
3:04:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL  surmised  that  "homelessness"  will  be                                                               
difficult   to   define.     He   then   read  portions   of   AS                                                               
12.55.155(c)(22), and portions of AS 12.55.155(c), which read:                                                                  
                                                                                                                                
     (2) the  defendant's conduct  during the  commission of                                                                    
     the  offense manifested  deliberate cruelty  to another                                                                    
     person; ...                                                                                                                
     (5) the defendant knew or  reasonably should have known                                                                    
     that  the  victim  of   the  offense  was  particularly                                                                    
     vulnerable or  incapable of resistance due  to advanced                                                                    
     age, disability,  ill health,  or extreme youth  or was                                                                    
     for  any   other  reason  substantially   incapable  of                                                                    
     exercising   normal  physical   or  mental   powers  of                                                                    
     resistance; ...                                                                                                            
     (8)  the defendant's  prior  criminal history  includes                                                                    
     conduct involving  aggravated or repeated  instances of                                                                    
     assaultive behavior; ...                                                                                                   
     (21) the  defendant has a criminal  history of repeated                                                                    
     instances  of  conduct   violative  of  criminal  laws,                                                                    
     whether   punishable  as   felonies  or   misdemeanors,                                                                    
     similar  in  nature  to  the   offense  for  which  the                                                                    
     defendant is being sentenced under this section;                                                                           
                                                                                                                                
REPRESENTATIVE  COGHILL   suggested  that   existing  aggravating                                                               
factors  can  already  be  applied, and  stated  that  he  favors                                                               
seeking  action  against the  perpetrator  for  the crime  he/she                                                               
commits instead of seeking a  higher sentenced based on the class                                                               
of  the  victim.   He  expressed  concern  that unless  the  bill                                                               
defines  "homelessness",  it  will  create a  conundrum  for  the                                                               
courts.   He  opined that  a  substantial set  of laws  currently                                                               
exists  to address  the behavior  that  SB 211  is attempting  to                                                               
address.   He indicated that  he would vote  "no" on the  bill in                                                               
its current form.                                                                                                               
                                                                                                                                
3:07:02 PM                                                                                                                    
                                                                                                                                
SENATOR  DAVIS  asked  to  be  allowed  to  work  to  narrow  the                                                               
definition of "homelessness".                                                                                                   
                                                                                                                                
CHAIR RAMRAS announced that SB 211 would be held over.                                                                          

Document Name Date/Time Subjects