Legislature(2007 - 2008)CAPITOL 120
03/27/2008 01:00 PM House JUDICIARY
Audio | Topic |
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Start | |
SB101 | |
SB211 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | SB 211 | TELECONFERENCED | |
+ | SB 101 | TELECONFERENCED | |
+ | 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.
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