Legislature(2003 - 2004)
04/28/2004 08:06 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
SENATOR GEORGIANNA LINCOLN, sponsor of SB 246, informed members
that she distributed to members the previous evening the answers
to 17 questions posed by the Chair. In addition, she submitted
letters from the Juneau, Anchorage and Fairbanks police
departments and the Alaska Association of the Chiefs of Police,
all of which endorse SB 246. She noted that various groups
nationwide endorsed the federal legislation, entitled the Local
Law Enforcement Enhancement Act. She noted that Ms. Carpeneti
from the Department of Law was available to answer technical
legal questions.
SENATOR LINCOLN then asked members to consider an amendment to
page 3, line 8: after the word "hatred" insert "AS 11.76.200".
She explained, "The purpose of that is when referring to a new
category of crime that is motivated by hate that this crime
would be charged under that section of our statutes and so it's
just a clarifying amendment."
CHAIR SEEKINS said he asked for an independent sectional
analysis.
SENATOR LINCOLN replied:
Mr. Chairman - and I didn't misread when you said
independent because when I received that two days ago,
I was trying to get as much of that information as I
could. We did call over to - as independent - I did
call over to [Legislative Legal] and [they] said that
they were going to try to get that to us before this
meeting. We have not received that so I apologize for
that.
CHAIR SEEKINS suggested "walking" through the bill with Senator
Lincoln to understand her intent.
[At that point the committee realized that, inadvertently,
members never received a sectional analysis that Senator
Lincoln's staff thought was distributed. She offered to get
copies.]
CHAIR SEEKINS asked Senator Lincoln her intent in Section 1.
SENATOR LINCOLN explained that Section 1 adds a new section to
AS 09.55 that authorizes a civil lawsuit for compensatory and
punitive damages against a person who causes physical injury or
property damage with the intent to intimidate or harass and
authorizes a lawsuit against the parent or legal guardian of a
minor for the same if the suit is based on reckless conduct by
the parent or legal guardian. It also prohibits lawsuits under
this section against the state or its political subdivisions.
CHAIR SEEKINS asked if Section 1 will allow a complainant to
bring a civil lawsuit.
SENATOR LINCOLN affirmed that is correct.
CHAIR SEEKINS asked how "harassment" is defined in that regard.
SENATOR LINCOLN explained the definitions of "prejudice",
"bias", and "hatred" are on page 3 and those are FBI terms from
the Department of Justice.
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law, noted the Administration has not taken a
position on SB 246. She noted that she would be surprised if the
word "harassment" is defined in criminal law and she is not
aware of such a definition in civil law. She pointed out that
does not mean every term used in civil or criminal law needs to
be defined because often the common understanding of terms is
used.
CHAIR SEEKINS said he was trying to determine what harassment is
if a person could be sued for it.
SENATOR FRENCH pointed out that with any new provision, there
will be some "finding out" as people bring lawsuits with good
and bad arguments. He noted that burning a cross in someone's
front yard would be a good claim under the statute but hurling a
racial epithet at another might not because the defendant must
have physically injured the plaintiff or damaged property. He
noted the jury would make that determination.
CHAIR SEEKINS argued that he would prefer that the 60
legislators define that term.
MS. CARPENETI said the statute describes the civil action as
discriminatory harassment and then goes on to describe the basis
of that action. It does not necessarily use that term in
establishing what must be proved.
CHAIR SEEKINS asked Ms. Carpeneti to review AS 11.61.120.
MS. CARPENETI explained:
It establishes the crime of harassment to do these
various things like taunt another person or insult
them, telephone them repeatedly at inconvenient times,
or make an obscene or anonymous telephone call.
CHAIR SEEKINS asked, "Under this definition, which we have the
crime of harassment, since this definition exists in another
part of statute, would that be the likely standard that the
court would use?"
MS. CARPENETI acknowledged that she is not well versed in civil
law, but replied:
They might look at that statute and say, well for a
crime that's what a person has to prove but I think
this is different and the reason I think that is this
civil action tells you what discriminatory harassment
is against another, and then it says what you have to
do - cause physical injury to the individual or damage
the property with the intent to intimidate or harass
the individual and they would probably look at that.
...Generally, civil lawsuits - judges look to the case
law rather than defined terms, like we do in criminal
law because in criminal law it's more important that
we have a definite term. In civil cases generally,
judges and juries make those decisions and they appeal
them and courts of appeals look at the basis for the
case and then that case is decided and everybody gets
to learn from that case and we go on and use the
direction from the juries and the judges. So civil
lawsuits generally are more - terms tend to be defined
more by case law rather than legislative decision.
CHAIR SEEKINS asked if a person caused physical injury to an
individual or damage to the property of an individual, that
would constitute criminal behavior.
MS. CARPENETI said it would depend on the circumstances
surrounding how that damage was inflicted. If the person had a
culpable mental state of intent knowing recklessness or with
criminal negligence, there might be a crime involved.
CHAIR SEEKINS asked if a person could be guilty of that crime
without culpability under the crime of harassment.
MS. CARPENETI did not believe so because a person must intend to
harass or annoy another person so that would be the culpable
mental state the state would have to prove beyond a reasonable
doubt.
CHAIR SEEKINS asked if they would have to have intent for the
civil action.
MS. CARPENETI said yes.
CHAIR SEEKINS surmised, "So, we already have in statute criminal
law that would also allow them to bring civil actions to recover
for those damages, if not part of the judgment if they were
convicted for restitution, which is normal, is it not now for
judges and courts to order restitution for someone who does
property damages or individual damages?"
MS. CARPENETI noted the Constitution requires that a person be
compensated.
CHAIR SEEKINS continued, "And we already have a crime of
harassment, which would fit into this. If someone did the things
that they could sue for under this section, they have, in
effect, committed this crime of harassment, have they not?"
MS. CARPENETI said she did not know because the crime of
harassment is limited to those various acts. She explained,
"This civil action is a whole lot broader in terms of how a
person could recover."
CHAIR SEEKINS said he is trying to find out what this section
gives to people that they do not already have under the law. He
noted under current law a person could be charged for a crime of
harassment and the victim could maintain a civil action against
that person if damage occurred.
SENATOR LINCOLN replied:
I think that Ms. Carpeneti already stated that, Mr.
Chairman, that as she read from the laws that are on
the books that it is not specific and that when we
talk about the discriminatory harassment that has
caused physical injury to an individual or damaged
property because of the intent to intimidate. This
expands what is on the books. It makes it very clear.
CHAIR SEEKINS asked how SB 246 will expand that. He then added
the crime of harassment is an action with the intent to harass
or annoy another person: that person insults, taunts, or
challenges another person in a manner likely to provoke an
immediate violent response, etcetera. He questioned whether that
is a low standard.
MS. CARPENETI said crimes must be proved by proof beyond a
reasonable doubt while civil actions must be proved by a
preponderance of the evidence, very different standards. She
suggested, "Maybe I'm just used to what we do for harassment.
It's often in a domestic violence context, making phone calls
and hanging up, doing various things. Under these circumstances,
not necessarily racially related, it's not necessarily related
to a particular person and it's a class B misdemeanor, which is
a lower [indisc.]."
CHAIR SEEKINS responded, "And I guess - I'm saying there on the
crime side it happens to anybody regardless of what their status
is. I mean it's universal, is that not correct?"
SENATOR OGAN said the legislature should probably amend the
harassment laws to exclude those of us that sit on this side of
the table from the citizens sometimes.
SENATOR FRENCH offered, as an example to differentiate between
the bill and criminal law, the crime of cross burning. If a
black family was preparing to move into a predominantly white
neighborhood and found that some neighbors had burned a cross on
their lawn the night before, that would not fit the crime of
harassment because that action is not likely to provoke an
immediate response. However, the property was damaged with the
intent to harass because of race.
CHAIR SEEKINS asked what the damages would be.
SENATOR FRENCH said that would be for the jury to decide. The
jury would have to take into consideration whether, for example,
there was a chanting crowd outside. He suggested it is hard to
analyze those scenarios outside of the factual context.
CHAIR SEEKINS questioned why state employees would be exempted,
and whether they would be exempted regardless of whether they
were working at the time.
SENATOR LINCOLN said that was question number 11 and the drafter
from Legislative Legal and Research Services responded that a
person's remedy would be limited to actions under AS 09.50 and
.65 and 42 U.S.C or normal actions under common law or other
principles.
CHAIR SEEKINS asked if a police officer who burned a cross on a
neighbor's yard could not be sued for discriminatory harassment.
SENATOR LINCOLN said that was question 15 about the Alaska State
Troopers. She read the response, "Alaska's law currently has
several provisions that serve to protect law enforcement
officers...." She then noted, "And then it talks about which
statutes those are under 12.55 and talks about the parallel
between the statutes, the hate crime, the police officers, with
the protection that is already on the books for them."
CHAIR SEEKINS asked if a police officer in uniform could be
charged with criminal harassment.
MS. CARPENETI believed so. She explained, "What this does is it
says that this new statutory cause of action, if it is adopted
by the legislature, does not create a statutory cause of action
against a law enforcement officer under these circumstances. To
the extent that there are other remedies on a civil basis that a
person could bring against a person who's a police officer,
these provisions would not affect that."
CHAIR SEEKINS said if other remedies exist for a police officer,
other remedies exist for everyone.
SENATOR LINCOLN replied:
Mr. Chairman, I don't know how to say this in a
different way for you but when you ask about
harassment, there is nothing on the books right now
that speaks to harassment of this category of folks or
damage to property under hate crimes. There is nothing
on the books for that and what we are attempting to
do, just as with the paintball incident, is that that
crime gets elevated to a misdemeanor. You know, the
harassment is a class B misdemeanor and it gets
elevated to a higher offense so that we send a message
out. That's the whole intent of this bill. We send a
message out that hate crimes are not going to be
tolerated in the state. ...If you read the letters
from the police departments who go out and investigate
these types of crimes that are supportive of having
different penalties for people who go out and
knowingly, and I have to say knowingly because it's
not just done very lightly...
CHAIR SEEKINS interjected to say he is not only talking about
hate crimes but also about the civil action that could be
brought. Nothing in the bill says the person must have been
convicted of a hate crime in order for a civil action to be
brought.
SENATOR LINCOLN replied, "Well, Mr. Chairman, it says who has
caused physical injury to the individual or damage with the
intent because of the individual's actual or perceived race,
sex, color, creed, physical or mental disability, sexual
orientation, ancestry or national origin."
CHAIR SEEKINS expressed concern that this would allow someone
who has gone to court and is found innocent to also have a civil
action brought against him or her, regardless of whether or not
that person was charged with the crime.
SENATOR FRENCH commented that happens all of the time, possibly
because of the difference in the burden of proof. He mentioned
the O.J. Simpson case as an example.
CHAIR SEEKINS asked why a person who was not convicted of a hate
crime should be subject to a discriminatory harassment action
for recovery under this process.
SENATOR FRENCH expressed confusion about the question but stated
that strikes him as the difference between the nature of
criminal and civil law.
CHAIR SEEKINS commented that during the last election, people
destroyed his property by tearing down his campaign signs and
that might have constituted a hate crime, but not under that
section. He then directed members to section 2.
SENATOR LINCOLN said that is the provision of the bill that
elevates the crime to the next level of offense by establishing
the crime as motivated by prejudice, bias or hatred and was
knowingly committed. She pointed out that a class B felony, such
as an assault in the second degree, would be a class A felony if
motivated by prejudice, bias, or hatred.
CHAIR SEEKINS asked Senator Lincoln if she did the sectional
analysis herself.
SENATOR LINCOLN said she did with help from many people.
TAPE 04-55, SIDE A
CHAIR SEEKINS asked how the crime is elevated to the next level.
SENATOR LINCOLN explained that according to the bill, a crime
that is a class A misdemeanor would become a class B
misdemeanor.
CHAIR SEEKINS expressed confusion and said it appears that there
would be two crimes because a person convicted of one crime
would be guilty of another.
SENATOR FRENCH said there is no way a person would get convicted
of one crime and punished for another. The person would be
charged with a B felony, which might be a C felony assault
motivated by prejudice, bias or hatred. The grand jury would
have to return a true bill on that indictment, where the person
would be charged with a B felony.
CHAIR SEEKINS asked if a person is charged with a B felony and
the prosecution believes there was a motivator involved, the
person would be charged with one crime, that being the crime of
motivation by prejudice.
SENATOR FRENCH thought that was correct.
MS. CARPENETI explained the difference between the underlying
crime and this crime is that the state would have to prove
between a reasonable doubt the motivation.
CHAIR SEEKINS asked if the person would be considered innocent
of the crime if the state could not prove the motivation beyond
a reasonable doubt.
MS. CARPENETI said that would depend on the circumstances, but
the underlying crime would be a necessary part of it so if the
jury found that the state did not meet the burden of proof of
beyond a reasonable doubt on the motivation, it could return a
verdict on the underlying crime alone.
SENATOR FRENCH noted, as an example:
Frequently, one single death, one single murder death
will result in - you know, you'll offer a jury three
murder theories in a grand jury and a murder jury and
they'll consider all three of those theories and they
may find you guilty of all three of those murder
theories and then it all collapses into one sentence.
And so in this case, I can see you offering a jury on
a C felony assault - you're going to offer them a B
felony motivated by prejudice and hatred and a C
felony on straight assault and the jury will decide
whether you've proved beyond a reasonable doubt that
it was motivated by prejudice, bias or hatred, and if
you didn't, they'll just say - and then they'll decide
whether you proved beyond a reasonable doubt that you
actually committed the assault.
CHAIR SEEKINS asked Mr. Luckhaupt to address the construction of
the bill regarding getting to a crime of motivation by
prejudice, bias or hatred.
MR. JERRY LUCKHAUPT, legislative counsel, Legislative Legal and
Research Services, told members as Senator French stated, the
person would be charged with the underlying crime but basically,
both offenses would have to be charged and merged into one
offense, similar to the procedure for crimes like conspiracy or
solicitation. The grand jury would also return an indictment for
the underlying crime with that specific motivation. The jury
would have to find the person guilty of both the underlying
crime and of doing it in a particular manner.
CHAIR SEEKINS asked about the standard.
MR. LUCKHAUPT said the standard of proof would be beyond a
reasonable doubt on each and every element. He thought that the
mental state is knowingly, rather than intentional. He pointed
out that the use of knowingly, which is one step below
intentionally, will be fairly problematic because the courts
will consider it as an intentional mental state because of the
recognition of motivation.
MS. CARPENETI said in this context, a culpable mental state of
knowingly means the offender knew the person he or she was
harming was in one of the protected categories and committed the
offense for that reason. She, too, agreed it is very similar to
intentional under these circumstances. She assumed the drafters
used the word "knowingly" because sometimes "intentionally"
applies to the result.
MR. LUCKHAUPT said SB 246 was part of a governor's bill two
years ago so it was originally drafted by the Department of Law.
He was not sure why "knowingly" was chosen but combined with the
motivation aspect in the bill, he did not know how the court
could apply it other than as an intentional mental state.
SENATOR LINCOLN confirmed that SB 246 is the result of a bill
that was not enacted by a previous legislature. She noted that
she submitted that bill but the Governor and the Department of
Law worked on it.
CHAIR SEEKINS asked if other methods in existing statute could
address Senator Lincoln's intent to elevate the penalty for
these crimes.
MR. LUCKHAUPT replied:
Well, there are. States, as they've gone through
dealing with bias crime legislation and they've had to
take this approach of either trying to create a new
crime or trying to deal with it as a sentencing aspect
and so you've had different approaches used...My
personal feeling as a drafter is that under the model
penal code, our culpable mental states are all things
that don't imply values in and of themselves, or they
are not - intentional conduct, knowing conduct,
reckless conduct or criminally negligent conduct in
and of itself isn't morally reprehensible. We don't
think that people that act with a particular intention
are just bad people. We look to the other elements of
that crime to decide whether or not that is
reprehensible or not or whether that's accountable or
not.
Under the model penal code, which Alaska adopted when
we redid our penal code back in 1979, it follows that
approach that the culpability of someone, their
accountability, is determined by their particular
mental state when they are committing the crime in
terms of were they acting intentionally or were they
acting knowing this result could occur or were they
disregarding a particular likelihood that some result
would occur, even if they hoped that it wouldn't
occur. And, equating those to intentional, knowing or
reckless, we then provide gradations of penalties
based upon that person's culpability, they're
accountability for the offense. So someone that
intentionally wants to make sure someone ends up dead
and they then shoot that person, that person is more
culpable, more accountable for the conduct than
someone who is shooting over towards that house and
knows that someone could get hit by this or I could
kill somebody but they aren't really intending to kill
someone and so, you know, those are the ways we have
traditionally dealt with people's motivation, people's
conduct and we haven't brought the value aspect into
it.
I'm just discussing that to bring up the idea of how
our penal code is designed and when we do look at
people's particular motivations or things that might
be - where we impose our values then upon issues,
we've usually done those in the sentencing aspect
where we've distinguished between victims or
distinguished between certain conduct and we then
impose a greater punishment based upon that.
For example, if I select a victim because they have
certain characteristics and someone else selects a
victim because they were paid to hurt this person,
both of us that were acting intentionally in regards
to that victim or at least knowingly in regards to our
conduct and respect to that victim, the crime is the
same. There's nothing to distinguish one victim from
another except some value specific thing that we put
on. There's nothing that makes that victim more
morally subject to protection than another victim
usually. Now, saying that, we can then distinguish
down the road after we've decided this is a particular
crime, that this person has a particular mental state.
You then decide well, if someone acted with this
particular motivation, for example if there's a murder
for hire or something like that, a lot of states will
penalize murders for hire at a higher level than other
murders. We will penalize hate crimes as we do in
Alaska law as we do with our aggravating factor for
felonies. We allow for increases in punishment based
upon that.
That doesn't deal with the specific issue Senator
Lincoln has in regards to the misdemeanor offenses
because we don't have aggravating factors for
misdemeanor offenses and that has been a problem with
the two instances up in Anchorage in the last three
years or four years where the offenses were classified
as misdemeanors and, in some cases, the juveniles were
dealt with in the juvenile system in a way that most
folks found unacceptable.
But there are other ways to deal with that. Some of
those issues involve things like requiring, if certain
aggravating factors are found, you can require a
certain increase in sentence. You can require what
we've done in the misdemeanor context - we've required
minimum jail terms. And also, to deal with the
juvenile situation, is you can require that that
juvenile not be dealt with in a juvenile system. The
legislature has done that in a number of cases where
the legislature has found the response of the juvenile
to different crimes as unacceptable.
SENATOR FRENCH said SB 246 has had two hearings in the Senate
Judiciary Committee and the police chiefs of Anchorage,
Fairbanks and Juneau are in favor of it so it strikes him that
the bill is ready to move on.
CHAIR SEEKINS said he has not come to the same conclusion yet.
SENATOR FRENCH moved SB 246 to the next committee of referral to
allow the next committee to deal with it. He stated that SB 246
has been well presented, documented and backed up by Senator
Lincoln.
CHAIR SEEKINS said, "I will tell you that the motion isn't ready
but I'll let you make the motion because I don't believe so." He
asked for a roll call vote.
SENATORS FRENCH and ELLIS voted in favor of the motion; CHAIR
SEEKINS was opposed.
CHAIR SEEKINS announced that the motion failed and that he would
carry the bill over to another hearing. He explained that the
bill needed three votes in favor to pass out of committee.
SENATOR ELLIS disagreed.
CHAIR SEEKINS upheld his decision. There being no further
discussion, the meeting ended at 10:11 a.m.
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