Legislature(2007 - 2008)BELTZ 211
02/11/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB211 | |
| SB247 | |
| SB226 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 211 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 226 | TELECONFERENCED | |
| += | SB 247 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 211-AGGRAVATING FACTOR: HOMELESSNESS
1:33:54 PM
CHAIR FRENCH announced the consideration of SB 211.
SENATOR WIELECHOWSKI joined the meeting.
JANA KREOFSKY, legislative intern to Senator Bettye Davis,
introduced SB 211 on behalf of the sponsor. She read the
following sponsor statement into the record.
SB 211 allows the court to increase the active term of
imprisonment for felonies up to the maximum term of
imprisonment, even for a first offense, for factors in
aggravation. Current sentencing provisions allow
imposition of a sentence above the presumption range
set out in AS 12.55.125 based on race, sex, color,
creed, physical or mental disability, ancestry, or
national origin as set out in AS 12.55.155(c)(22). SB
211 adds "homelessness" as an aggravating factor to
this section.
The purpose of this statute is to deter and punish
defendants motivated to harm homeless people who are
particularly vulnerable and increasingly targets of
crime. Violent crimes against the homeless increased
65 percent from 2005-2006, according to a 2006 report
by the National Coalition for the Homeless. The 2006
numbers reflect a 170 percent increase since the
organization's first study in 1999. This national
trend is reflected in the more than 14,000 individuals
who experience homelessness in Alaska each year,
according to the 2005 Alaska Interagency Council on
Homelessness 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.
1:36:31 PM
GEORGE BRIGGS, Executive Director, Juneau Cooperative Christian
Ministry, "The Glory Hole", stated support for SB 211. The Glory
Hole is a 40-bed homeless shelter and soup kitchen in Juneau.
Over the course of a year he sees about 20 percent of Juneau's
substantially high homeless population. During his 15 month
tenure, he has seen crimes committed against homeless
individuals committed for no apparent reason other than that
they are homeless. Citing several examples, he said these are
senseless acts of violence that target a very vulnerable
population. Generally, homeless people want to be part of the
community but they've been ostracized and have learned to be
mistrustful. "This is a group of citizens that have a hard time
trusting even me." As such, they're reluctant to report personal
assaults to the police. Although he doesn't agree at all, he
knows that some homeless individuals have the attitude that they
deserve to be attacked.
MR. BRIGGS said SB 211 will give the courts the ability to
address crimes against the homeless in a different manner. This
will help send the message that "you can't just walk around the
street and beat up people just for the heck of it."
1:41:07 PM
DANIEL UNGIER, United Way of Southeast Alaska, said he chairs
the Juneau Homeless Coalition which looks at the root causes of
homelessness. When he first heard about SB 211 he questioned
adding homelessness as a separate factor, but that was before he
knew anything about "Bum Fights Online." This privately made,
low budget film series has played an integral part in the
skyrocketing increase in violence against the homeless. These
are videos of people who shout the phrase, "bum fights" and then
attack someone who is playing a stereotypical homeless person.
In particular this phenomenon is sweeping through young people
and references are beginning to show up in mainstream Hollywood
movies. The essential message is that it does no harm to beat up
the homeless because they really aren't contributing to society.
MR. UNGIER said he concluded that "homelessness" should be added
as an aggravating factor because these people are being
stereotyped and disproportionately targeted simply because of
their homeless status. In fact, 21 percent of homeless people
report being the victim of a violent crime compared to 1 percent
of the general population. Bum fight videos have created the
image that an easy way to have fun is to target and attack
someone because of their specific status.
MR. UNGIER said this legislation is about more than imposing
stiffer sentences. It's about making a statement about this kind
of crime and about reducing how often it happens. SB 211 sends a
strong message; it counteracts stereotyping, and it could make a
real difference.
1:45:54 PM
SENATOR HUGGINS observed that in his dealings with homeless
people, most of whom are veterans, he's concluded that often
they're a victim of a crime by another homeless person. "What
does that do to the definition we're doing here if it's a
homeless person with a crime on a homeless person," he asked.
MR. UNGIER replied he's heard stories along those lines but the
statistics indicate that perpetrators are targeting people they
don't know. "I don't know what the impact would be on homeless
against homeless crimes," he said.
CHAIR FRENCH suggested that the Department of Law representative
might be able to provide an answer.
SENATOR HUGGINS asked how couch-surfing teenagers would be
addressed.
MR. UNGIER said he understands that for the aggravating factor
to apply, the person must be knowingly targeted for their
homelessness. He wouldn't expect the law to apply to a teenager
who is couch surfing.
1:48:29 PM
SENATOR HUGGINS questioned how someone knows that another person
really is homeless.
MR. UNGIER explained that people who have just left a homeless
shelter and people who fit the stereotype are targeted.
SENATOR HUGGINS observed that in Anchorage there's a sizeable
number of people who are sequestered somewhere off the street.
"The common thing amongst them is if you fall asleep somebody
will bong you on the head and take your fifth of whiskey or your
sleeping bag or you bunny boots if it's really cold." It seems
to be a cycle among a certain colony of people, he said.
1:50:18 PM
SAMUEL J. FORTIER stated support for SB 211. He's practiced law
in Anchorage for more than 25 years and some of his practice
involves homeless advocacy. Referring to the suggestion that
only homeless people target other homeless people, he said his
experience is the opposite. Several years ago in Anchorage a
group of youths took videos of paintball attacks on homeless
people. Clearly that was a hate-related crime that focused on
the category of homeless people. The purpose was to make fun of
certain people and put it on video. "There was no basis in
attacking those people other than the fact that they were
homeless."
1:53:31 PM
SENATOR THERRIAULT joined the meeting.
MR. FORTIER relayed that on any given night there are about
3,500 people in Alaska who don't have homes. At least 700 of
those individuals will be attacked and probably 20 percent of
the attacks will be violent. The basis for the attacks isn't
because someone is reaching for another person's bottle, he
said. A number of the takings are on the basis that these people
are homeless. "It's on the basis of status; it's on the basis of
hate." We do have a responsibility for these individuals if we
consider that they are among the most vulnerable, he said. The
reasons for homelessness are varied; it's not simply because of
mental problems or drug and alcohol abuse, although many
homeless are faced with those problems. People are rendered
homeless because of economic conditions too. There is a need for
an aggravator, he said. We need to send a message that it's
wrong to attack vulnerable people on the basis of status. Ours
is an inclusive society that doesn't exclude people from basic
protections and basic human rights. Discriminating against
people on the basis of gender or race isn't permitted and people
who are on the outskirts of society based on economic conditions
should be similarly protected.
1:56:16 PM
MR. FORTIER revealed that he was homeless in Dillingham in the
early 1970s when housing was in short supply. The difference is
that he was in a village where people take care of one another.
"That's not so in a large city." When you're at the bottom of
the economic heap in Anchorage you are preyed upon. It's time to
add the aggravator for the most serious felonies. Consideration
should also be given to including homelessness in other hate
crime legislation, he said.
1:58:06 PM
DIANNE SLIGHTER described herself as a concerned Juneau citizen
who listened when Representative Andrea Doll introduced similar
legislation. She said it's not difficult to identify a homeless
person because their entire composure is different; they're sort
of inside themselves. She drew a parallel between current
violent attacks on homeless people and the violent gladiator
sports from ancient times. "What difference is it today?" These
vulnerable people are targeted just for sport and it's wrong.
CHAIR FRENCH welcomed Representative Doll.
2:00:54 PM
REPRESENTATIVE ANDREA DOLL said she is proud to have introduced
legislation similar to SB 211. Many Americans are not all that
far from homelessness but her reason for introducing the
legislation relates to homeless women with drug abuse problems.
Often they aren't able to go into the AWARE women's shelter and
they don't feel safe in the other shelters in town. That places
them in the vulnerable position of being on the street. They're
worried about rape and assault and sometimes they're worried
about not being treated fairly by the police. She said she
realized that she couldn't build a shelter, although she'd like
to work on that. What she could do is highlight these
individuals' plight and show that we care about their value.
Adding "homelessness" as an aggravating factor is one way to do
that.
CHAIR FRENCH asked the Department of Law to explain what it
takes to prove an aggravator, what would happen if an aggravator
were proved, and at what stage of the proceedings it has to be
proved.
2:03:15 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL) explained that this aggravating factor
would be subject to the Blakely decision. The prosecution would
have to prove beyond a reasonable doubt that the defendant
directed the crime toward the victim because of their homeless
status. "It would be a difficult aggravating factor to prove, as
are others in this particular paragraph of aggravators."
CHAIR FRENCH referred to the questions Senator Huggins posed
earlier about defining who is homeless, knowing who is homeless,
and about couch surfers. In his mind they highlight the
difficulties should DOL try to prove this aggravator.
MS. CARPENETI agreed it will be difficult. "This is not one we
will be able to establish often." Initially she thought it would
be a good idea to include a definition but then she realized
that none of the other factors are defined in statute. It's
something that the courts can apply when it's reasonable to do
so. But it won't happen often. It would be even more difficult
to prove that a homeless person targeted another homeless person
because they were homeless.
CHAIR FRENCH referred to Senator Huggins' example of one
homeless person preying on another for their belongings and said
to prove that the crime was based on homelessness you'd almost
need a video of the person stating their motive into the camera.
"Absent that sort of confession…it's going to be very difficult
to prove."
MS. CARPENETI agreed.
2:06:23 PM
SENATOR WIELECHOWSKI asked if the person actually has to be
homeless or if it's just the attacker's perception that they're
homeless. For example, a person who is kicked out of their house
and is attacked when they're sleeping on a park bench isn't
really homeless, but the attacker thinks they are.
MS. CARPENETI replied it would depend on the facts, but someone
who was kicked out of their house could be considered homeless
if they had no place to go.
SENATOR HUGGINS said his concern is that this could be just
another statute without teeth. "I'm not so sure the societal
will to be able to follow through with some sort of oomph-no
matter what we legislate-is there."
CHAIR FRENCH asked what affect it would have on a sentence if
this aggravator were proved.
MS. CARPENETI explained that it would allow the sentencing court
to increase the presumptive sentence to the maximum for that
level of crime. For example, if it were established, the
sentencing court could sentence to the maximum term of 20 years
for a class A felony.
CHAIR FRENCH asked if the judge would be required to increase
the sentence.
MS. CARPENETI said no; the court has more discretion once
aggregating factors and mitigating factors are established, but
it does not have a mandatory effect.
2:09:31 PM
CHAIR FRENCH summarized that it would be a fact-driven inquiry
after which the judge would consider the elements and decide
whether or not to add time to the sentence.
MS. CARPENETI said that's correct.
CHAIR FRENCH referred to Senator Huggins' concern about the
effectiveness of adding "homelessness" to the list of
aggravators and said the point is well taken. "It may sit there
unused on the books for decades." Similarly, he's never seen
creed alleged as an aggravator, but it's on the list. This is
more a statement of our values. "If someone is going out and
attacking a person just because they're homeless and you have
the ability to prove that … it's worthy of having that word on
the books." The prosecutor will have that tool in their toolbox
and the judge will have the ability to "make an upper departure
on the sentence because of the nature of the assault."
2:10:29 PM
SENATOR THERRIAULT said he doesn't disagree but he understands
Senator Huggins' concern. "We pat ourselves on the back, we add
another line - it may never be used except for the one instance
where, as you said, there's a video tape." I don't have a
problem if the bill passes but this doesn't solve the homeless
problem or the issue of violence against the homeless, he said.
SENATOR THERRIAULT noted that the sponsor statement says that
according to a national study violent crimes against the
homeless have increased by 65 percent from 2005-2006. It also
says that the national trend is reflected in the more than
14,000 individuals who are homeless in Alaska. He asked if
there's a direct link and there has been a 65 percent increase
in violence against the homeless in Alaska.
MS. KREOFSKY clarified that is a national statistic and although
violent crime against the homeless is reported to be rising in
Alaska, she doesn't have specific data.
2:13:11 PM
TOM OBERMEYER, Aide to Senator Davis, highlighted several
definitions of "homelessness" and relayed that for the purpose
of this section the definition is, "An individual who lacks a
fixed regular and adequate nighttime residence or has a primary
nighttime residence that is not designed for permanent living."
Thus a person in one of those temporary situations could be
identified as homeless. The statutes don't mention perception of
homelessness, but the term "knowingly" is used. That goes to
Senator French's point of trying to prove someone knowingly did
this by putting the attack on the Internet, he said. What is
most important though is that this will send a message to the
general population to be more sensitive to homeless people in
general.
CHAIR FRENCH asked Mr. Obermeyer to submit the definitions to
his office. He would hold SB 211 so the committee could consider
whether or not the term "homelessness" is adequately understood
to allow a jury to make a good decision.
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