Legislature(2001 - 2002)
03/25/2002 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 344-TERRORISM AGGRAVATING FACTOR
CHAIRMAN TAYLOR stated that he introduced this legislation
because of an article that appeared some years ago in the Earth
First journal. He said his concern stems from the fact that he is
seeing more articles in the newspaper about people acting out and
committing arson to protect animals or protect the earth. He said
that those acts would be considered terrorism in any other forum.
SB 344 increases the aggravating factors at sentencing should a
person be found to have committed a criminal act for these
purposes. He then took public testimony.
MS. JENNIFER RUDINGER, Alaska Civil Liberties Union (ACLU), said
the ACLU is a non-profit organization dedicated to preserving and
defending the principles of liberty and free speech guaranteed in
the Bill of Rights and the Alaska Constitution. The ACLU urges
committee members not to pass SB 344 from committee because
rather than punishing criminal acts, this bill punishes political
ideas and motivations, which are at the core of what the First
Amendment was adopted to protect, that being the right of
citizens to petition their government for redress of grievances
and the right of dissenting voices to be heard. She clarified
that the ACLU does not oppose the criminal prosecution of people
who commit acts of civil disobedience if those acts result in
property damage or place people in danger. That type of behavior
is already illegal. However, such crimes are often not what
Alaskans think of as terrorism and it would be very unfortunate
if the legislative response to terrorism is to start turning
ordinary Alaskans into terrorists just because their motivation
is to effect political change.
MS. RUDINGER stated that under the sweeping definitions in SB
344, the desire to effect change could in and of itself be
sufficient to aggravate the sentences or people whose civil
disobedience does not come anywhere near the level of what
Alaskans think of as terrorism. She said recent examples are the
World Trade Organization protestors who engaged in minor acts of
vandalism or anti-abortion protestors who engage in civil
disobedience by blocking entry to clinics.
TAPE 02-11, SIDE B
MS. RUDINGER said another example is the people in Puerto Rico
who committed civil disobedience to stop the use of the island of
Puerto Rico for weapons testing and bombing. She repeated the
criminal acts of vandalism and assault in those examples should
be punished and existing law allows for punishment of acts
involving force or violence against persons or property, as SB
344 recognizes. However, the motivations of the protestors to
influence world economic policy, to dissuade women from seeking
abortions or to change U.S. policy with regard to bombing in
Puerto Rico are the bedrock of democracy. She concluded by saying
she supports Chairman Taylor's effort to punish criminal acts,
but in legislators' efforts to protect Alaskans from real
criminal threats, it is important that they not criminalize ideas
and beliefs protected by the First Amendment by punishing
Alaskans' political motivations.
SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a
position on hate crimes legislation.
MS. RUDINGER replied that about eight or nine years ago, the
national ACLU submitted a brief to the U.S. Supreme Court urging
it to uphold a Wisconsin hate crimes enhancement statute as being
constitutional, however the ACLU also asked the Supreme Court to
set forth a clear set of rules governing the use of these
statutes. The ACLU warned the court that if the state is not able
to prove that a defendant's speech is directly linked to the
criminal behavior, chances would increase that the state's hate
crime prosecution would be politically motivated. She told
Senator Donley that she appreciated the question because the
issue is very complicated. She said the ACLU is against hate
speech codes in which only politically correct speech is
tolerated, but it does support a narrowly crafted hate crime bill
if it has restrictions on the kind of evidence introduced. She
asserted that the intent and the effect of hate crimes is to
oppress and silence a group of vulnerable people using fear. She
emphasized the importance of ensuring that the evidence
introduced is limited to the hate crime charges.
SENATOR DONLEY asked if the ACLU does not oppose hate crimes
legislation if there is linkage between the actual speech or
thought.
MS. RUDINGER said she thought Senator Donley was right but it is
a tough line to draw. ACLU opposed Senator Ted Kennedy's bill in
Congress unless it was amended to narrow the kind of evidence
that could be introduced. The ACLU was leery of the broad scope
of the bill and how much of a person's beliefs and associations
could be used against them in a trial about a particular crime.
However, sometimes speech is related to a crime, such as in a
lynching, so it is a very difficult line to draw. The ACLU
supports hate crime legislation overall because of the oppressive
effect hate crimes have on vulnerable groups of people.
SENATOR DONLEY asked if the ACLU has extended its area of concern
into disparate treatment based on race or other non-permissible
factors.
MS. RUDINGER asked Senator Donley to be more specific.
SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a
position on the Governor's proposed subsistence amendment.
MS. RUDINGER said the ACLU supports a constitutional amendment
but it hasn't yet testified on the issue. The ACLU does not see
the subsistence issue as a race-based issue but one of necessity
that is connected to freedom of religion and spiritual heritage.
She said the short answer is the ACLU does support a
constitutional amendment or some kind of protection of
subsistence use based on the fact that subsistence is so integral
to Native culture - it goes beyond simply food and gets into the
spiritual heritage of the culture.
SENATOR DONLEY asked why the ACLU feels a constitutional
amendment is necessary when the state already prioritizes
subsistence uses as the highest priority use. The only purpose of
a constitutional amendment would be to provide for discrimination
of urban subsistence users to the benefit of rural subsistence
users, not necessarily based on any merit or cultural background.
MS. RUDINGER responded by saying the ACLU wouldn't limit its
support to just a constitutional amendment but it would support a
subsistence preference in times of shortage, the reason being
that subsistence is so much a part of the culture and heritage.
Subsistence is not simply a matter of gathering food. The Alaska
Constitution gives everyone the right to eat. The ACLU supports
subsistence because it believes it is a very important matter
that needs to be resolved and it will only come into play in
times of shortage. She repeated that during times of shortage, it
is very important to protect the spiritual heritage of Alaska
Natives. She offered to meet with Senator Donley at another time
to elaborate further.
SENATOR DONLEY said he appreciates Ms. Rudinger's offer and
explanation but he doesn't believe her explanation is consistent.
MS. RUDINGER remarked that it is hard to sum up a position on an
issue like subsistence in a short time period.
SENATOR DONLEY noted the Anchorage Assembly thinks it's competent
enough to do so.
CHAIRMAN TAYLOR said he was fascinated by Ms. Rudinger's comment
that the ACLU supports hate crime legislation if it contains a
sufficient limitation upon the evidence of motive or the evidence
of hate.
MS. RUDINGER agreed that is what she said and stated the ACLU is
opposed to hate speech codes. The ACLU does not believe speech
can be restricted and, in fact, the ACLU has defended the rights
of numerous groups whose speech she can't stand. The ACLU
defended the rights of the Nazi party to peaceably march through
a primarily Jewish town in Illinois. However, when it comes to
hate crimes, the motivation in itself does harm. The motivation
behind a hate crime is not just aimed at the victim of the crime
but it is aimed at an entire group of people and sends the
message that this will happen to you if you assert your rights.
The ACLU is very cautious however, and has opposed hate crime
bills that include speech.
CHAIRMAN TAYLOR said SB 344 refers to the defendant's criminal
conduct so it does not apply to anything that is defensible under
the First Amendment because that wouldn't be criminal conduct. He
read from SB 344, "...the defendant's criminal conduct involved
the use of force or violence against persons or property and was
designed to (A) intimidate or coerce a civilian population." He
asked, "Isn't that what a lynching is all about?"
MS. RUDINGER said SB 344 does not affect criminal conduct because
the conduct has already been punished. SB 344 does say that at
sentencing for that conduct, there's an aggravating factor as to
what the motivation was in the mind of the person who committed
the act.
CHAIRMAN TAYLOR asked, "Isn't that what we do in all sentencing?
Don't we look to the motive and the mens rea - the criminal
intent of the individual?"
MS. RUDINGER replied:
Mr. Chairman, intent and motive are different. The
intent is to commit the act or to see that the harm
itself is done but the motives listed here are not just
to commit the act, but to send a message. This looks at
is the motive behind the act being committed, is that
motive to send a message. The sending of a message,
however unpopular the message may be, is exactly what
the First Amendment was designed to protect. We can
punish the means, and we already do in the first part
of statute 12.55.155 and .125 but the motive, the
thought, we cannot and should not punish, especially -
we have some concerns about how vaguely these are
worded... as I look at all of the verbs in here, I
think they all boil down to wanting to make political
change.
CHAIRMAN TAYLOR asked how the verbs are any different than those
found within the definitions of the various hate crime laws that
Ms. Rudinger mentioned. He questioned how the lynching she used
as an example was not designed by the Ku Klux Klan to intimidate
or coerce a civilian population?
MS. RUDINGER said clearly lynchings and hate crimes are designed
to intimidate but the difference between hate crimes and SB 344
is who the intimidation is aimed at. She noted the motivation
behind a hate crime is designed to intimidate and oppress groups
of people who have been oppressed in the past.
CHAIRMAN TAYLOR asked why hate crimes only apply to groups who
have been intimidated in the past.
MS. RUDINGER said the hate crimes bills that she has seen have
tried to protect people from being oppressed by violence. The
bills are aimed at correcting past discrimination. She stated
there is a big difference between oppressing a group of people
who are vulnerable and intimidating the government. Any kind of
protest is designed to influence the policy of a government, and
one could argue by intimidation if a lot of voters are going to
be upset by it.
CHAIRMAN TAYLOR commented, "Not by criminal conduct, I hope."
MS. RUDINGER said the conduct should be punished under the first
part of the statute.
CHAIRMAN TAYLOR asked if that punishment should not be aggravated
by what the conduct was designed to do. He stated, "If it was
intentionally designed by the people who did the criminal conduct
to intimidate and coerce all of the people living down river from
the dam when they blew the dam up, and they blackmailed on that
basis, they said pay us $2 million or we'll blow up the dam.
That's pure and simple, we don't have a problem with that one.
But, if instead they say you cannot allow that nuclear power
plant to be built down river or we'll blow up your dam, somehow
that's free speech and the other one is not. It's a criminal act
that should be punished. Why should the aggravator not apply?"
MS. RUDINGER said both acts are criminal acts. The acts
themselves say harm will come if something isn't done. She
continued, "The acts themselves are criminal conduct and this, of
course, is limited to using force or violence, not just
threatening to use force or violence."
CHAIRMAN TAYLOR said that is correct.
MS. RUDINGER stated:
The only thing that your bill changes is the part that
says and was designed to (A)(B)(C)(D), in other words,
the motivation was (A)(B)(C) or (D). Those motivations
are so vaguely worded, we have some real concerns about
protected free speech being swept into them just
because that speech might be politically unpopular if a
prosecutor wanted to try to add some aggravating
sentences and send a message.
CHAIRMAN TAYLOR said he understood Ms. Rudinger's point.
SENATOR THERRIAULT noted there must be the underlying commission
of a crime so none of SB 344 would be triggered unless a person
commits and is convicted of a crime. He said he believes a lot of
limits were built into SB 344 by the way it is structured.
MS. RUDINGER gave the example of the WTO protest several years
ago at which protesters got out of hand. The individuals who
vandalized the car would be prosecuted. If SB 344 was in force,
it would apply during the sentencing stage. Without SB 344, the
sentence would be whatever it is for vandalizing a car. With SB
344, it would be possible to say that because the motivation of
the act was to influence the economic policy, the sentence should
be worse. She said the motivation is protected by the First
Amendment but the act is not so SB 344 would be turning the First
Amendment on its head.
SENATOR THERRIAULT asked if the question is whether the
perpetrator wanted to affect policy change through the commission
of a crime.
MS. RUDINGER replied, "No, the conduct should be punished but
it's not the same thing to say we want to affect policy as to say
well, we want to affect policy by - you know, things got out of
hand so we should not be responsible." If things get out of hand,
the protester is responsible and should be punished for the act,
but to say the motivation is an aggravating factor says the act
itself is even worse because of the motivation.
CHAIRMAN TAYLOR said, regarding the WTO protest, from the reports
he has seen, nothing got out of hand, it was well planned and
orchestrated to create mob violence in downtown Seattle. He
stated:
Inability to show total conspiracy on the part of those
individuals - somehow it's okay now to yell fire in a
crowded theatre if you're doing it for the right reason
but the judge shouldn't consider that the outcome of
your act, if you were not doing it for some politically
correct reason, that somehow the judge has to have
blinders on and go, oh no. You were Mahatma Gandhi in
the middle of the theatre and you just yelled fire and
it happened to get out of hand and you didn't do it for
any other reason but if you were part of the WTO
protesters and you sent a person into every single
theatre in town and the yelling of fire occurs all at
the same time, that the judge is not supposed to
consider that as an aggravating factor? That was what
your criminal conduct was designed to do?
MS. RUDINGER stated that shouting fire in a crowded theatre with
the obvious intent of causing a panic would not be protected
speech. In the example of a protest that gets out of hand, even
if there was a conspiracy to cause a riot, she felt Chairman
Taylor was saying that some people were caught and some were not
so this would be a way to tie in those who weren't caught.
CHAIRMAN TAYLOR said he was not suggesting that at all.
MS. RUDINGER said SB 344 only comes into play at sentencing,
after a person has been convicted.
CHAIRMAN TAYLOR said SB 344 only comes into play after all of the
events have occurred. The person was found guilty and is standing
before the court to be sentenced. He said Ms. Rudinger is telling
him that the Alaska Legislature can't tell the judge to look into
the heart of the individual and the heart of the action that
occurred to determine what the action was designed to accomplish
- whether the intent of the protester was to be part of a group
to intimidate and coerce another group of people, just like a
lynching was intended to. He asked Ms. Rudinger how she makes the
fine line distinction between that which is a protected designed-
to-do activity because it might involve speech and is a criminal
act, and that which is not protected. He said apparently it is
politically correct to use hate crime legislation and to use, as
an aggravator, somebody who lynches a black person, yet it is not
politically correct to use, as an aggravator, somebody who tears
up downtown Seattle, puts people in hospitals and causes mayhem.
MS. RUDINGER responded that most Alaskans would want a person who
threw a rock through a window to be punished but would not think
of that act as terrorism.
CHAIRMAN TAYLOR said maybe his act wasn't designed for that
purpose.
MS. RUDINGER said, regarding Chairman Taylor's question on how to
draw that line, she agrees it is a difficult line to draw so she
would look to the First Amendment, which she read parts of. The
First Amendment provides for the right of people to peaceably
assemble and to petition the government for a redress of
grievances. She said that according to Section (C) of SB 344, the
aggravating factor would apply to acts that "affect the conduct
of a unit of government;". Therefore redressing the government
for grievances would be the motive.
CHAIRMAN TAYLOR clarified that it applies to criminal conduct
used to influence government and asked what is so shocking about
that. He pointed out that by statute, one cannot coerce or
financially threaten a seated legislator on how they vote.
MS. RUDINGER said the ACLU agrees with that statute but SB 344
doesn't affect it. She said:
We've already got criminal conduct. We've got a
conviction and now we're at sentencing. This bill
really says [it applies if] that criminal conduct was
designed to (A)(B)(C)(D) and the (A)(B)(C)(D) look like
the First Amendment's goal of protecting - affecting
change. It's the motivation that is the aggravating
factor. The motivation is affecting political change,
the behavior should be punished and we completely
agree, no one has a right to use violence or force
against people or property for any reason - we agree.
CHAIRMAN TAYLOR said there must be some reasons for which the
ACLU is saying there should be no aggravators.
MS. RUDINGER stated it is not the conduct, it's the idea behind
it that SB 344 is affecting. She clarified that she is saying
those should not make the sentence worse; they should not be
aggravators.
CHAIRMAN TAYLOR said he has a difficult time working that
rationale into watching the Twin Towers collapse on September 11.
He can't believe those acts were any other than criminal acts
designed to intimidate or coerce a civilian population, influence
the policy of a government by intimidation or coercion, affect
the conduct of a unit of government, or influence the policy of a
private enterprise by intimidation or coercion. He said in
essence, Ms. Rudinger is saying those perpetrators should be
charged with violating flight laws of the U.S. Government and
that conduct should be punished.
MS. RUDINGER disagreed and said her caution to the Legislature is
that SB 344 will "throw the baby out with the bath water."
Alaskans need protection from real terrorists but SB 344 is
worded so broadly it could sweep into its scope protected First
Amendment activity by protesters.
CHAIRMAN TAYLOR said his difficulty in understanding her concern
is:
The fellow who goes out because he's all concerned
about the environment and drives ceramic spikes into a
tree because he knows that the detection unit for metal
objects will not register the ceramic spike, and then
the ceramic spike in the tree ends up in a mill in
Oregon where it goes through, and he knows that it's
going to that plant, it goes through a high speed saw.
The saw hits the ceramic spike and the saw blows up and
kills the workman inside the plant. Now those are
actual facts. What's he guilty of - of trespassing on
the tree? Or did he intend and was his act and conduct
designed to intimidate and coerce an entire section of
our population. And if there's something in there about
his freedom of speech because he thought he was doing
it for some good purpose, I'm having a hard time
understanding your analogies.
MS. RUDINGER said he would be guilty of the criminal conduct,
which gets him to the sentencing phase.
CHAIRMAN TAYLOR asked if, at the sentencing stage, the judge
should consider why he was motivated to design and carry out the
act.
MS. RUDINGER said at the sentencing phase, the fact that somebody
wanted to affect political change should not be an aggravating
factor on the sentence. The sentence should be harsh because
someone died but the motivation of wanting to affect change
should not be the factor that makes the sentence worse.
CHAIRMAN TAYLOR replied:
The Unabomber should not be - should not have his
sentence enhanced because of the thing that motivated
him to blow people up? He should only be convicted of
and sentenced to whatever damage, I guess, the bomb
caused when it went off? Nobody should consider his
motivation for doing it? I find that difficult to
understand why you would expect the judge to have those
blinders on.
MS. RUDINGER said that is not what she is saying. She is saying
that SB 344 is so broadly worded that in his attempt to go after
real terrorism, he is sweeping into the scope of this bill people
who the ACLU doesn't think of as terrorists. She noted if an
abortion protester uses force to block a person from entering a
clinic, the protester will be arrested for assault or battery but
the motivation could have been to affect change and should not be
an aggravating factor in sentencing. She pointed out that the
First Amendment does not protect a person who uses criminal acts
to affect change, and SB 344 does not change that.
CHAIRMAN TAYLOR noted that civil disobedience is not civil if a
person hurts another; the act is criminal. The Constitution does
not sanction criminal acts as free speech.
MS. RUDINGER said the ACLU is not saying that the act is an act
of free speech. The act is an act of violence. She said the ACLU
agrees with the premise that criminal conduct should be punished
but it does not agree the sentence should be harsher because the
criminal conduct was done to make a political statement. The ACLU
believes doing so could be dangerous because it will lead to
prosecution of unpopular political ideas as an aggravating
factor.
CHAIRMAN TAYLOR said he understands Ms. Rudinger's point and
appreciates the discourse, as it is important to have it on the
record. There was no further testimony on SB 344.
SENATOR COWDERY moved SB 344 to the next committee of referral
with individual recommendations.
CHAIRMAN TAYLOR announced that without objection, SB 344 moved to
the next committee of referral.
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