Legislature(2001 - 2002)
04/09/2001 01:18 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 187 - VANDALISM OF CEMETERIES & GRAVES Number 0440 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 187, "An Act relating to the destruction, desecration, and vandalism of cemeteries and graves." Number 0480 LORI L. BACKES, Staff to Representative Jim Whitaker, Alaska State Legislature, presented HB 187 on behalf of the sponsor, Representative Whitaker. She explained that under current Alaska statutes, there are no provisions relating specifically to the vandalism or desecration of modern cemeteries and memorials. One legal opinion is that they are protected under the Alaska Historic Preservation Act; however, persons who are charged with the maintenance and care of cemeteries are unconvinced that AS 41.35.200 provides for the penalties necessary to protect the safety and dignity of Alaska's cemeteries and memorials from theft, vandalism, and other forms of desecration. Acts of vandalism are currently punishable under statutes that relate to criminal mischief, but the degree of crime centers around the monetary value of the damage and does not recognize the personal insult and emotional injury that is suffered by a family, community, or tribe when cemeteries, burial sites, or memorials are vandalized. Ms. Backes conveyed that HB 187 clearly states that it is a crime of criminal mischief in the second degree if a person "defaces, damages, or desecrates a cemetery or the contents of a cemetery or a tomb, grave, or memorial regardless of whether the tomb, grave, or memorial is in a cemetery or ... appears to be abandoned, lost, or neglected". REPRESENTATIVE BERKOWITZ noted that language in HB 187 makes an exception for defacing, damaging, desecrating, or removing contents, if the action is consistent with law. He envisioned that law enforcement may need to engage in these types of acts, or that damage might be done during the course of an archeological exhibition. MS BACKES explained that those activities are already protected by federal law, as well as by the Alaska Historic Preservation Act. However, she added, if, for example, a state worker or a cemetery worker needs to excavate a grave, remove a headstone, or perform some other act that's within his/her duty, HB 187 adds an affirmative defense. CHAIR ROKEBERG noted that he has concerns about archeological "digs," and that the university has suggested an amendment to add "or state permit" in order to address that point. He then asked whether "headstone or marker rubbings" caused damage or if they would be considered a violation. MS. BACKES acknowledged that this point had not been considered when the research on HB 187 was being done. She said that she would find it difficult to think that "headstone rubbings" would cause damage to the site or cause insult to the family, but she noted that some people might find it offensive. She added that HB 187 does not specifically address this issue. Number 0770 ROBERT SAM, Cemetery Caretaker, explained that he has been involved with the restoration, preservation, and protection of cemeteries, sacred sites, historic sites, and cultural heritage sites in different parts of Alaska for the last 15 years, since 1986. He added that in 1988 he received the "Alaska Volunteer of the Year" award; he also has received national and international recognition over the years for performing these services. He said that over the years he has dealt with vandalism, desecration, and grave robbing. He added that even headstone rubbing can cause damage. He provided the committee with photographs of desecrated sites. Cemeteries are popular places for people to hold parties and drink alcohol, he informed the committee. Mr. Sam went on to explain that marble headstones featuring angels are used primarily for children's graves, and that it is very popular among youth to knock the heads and wings off these [angel headstones]. MR. SAM noted that it is only a few people who do damage to these sites. He recounted a recent incident of vandalism: the perpetrators pushed the headstones over and then chipped out the names of the deceased, and in some cases actually smashed many of the older headstones into little pieces. Mr. Sam noted that the hardest part of his job as a caretaker is calling the families and informing them that their family plots have been desecrated; many families become victims of this type of abuse. On another point, Mr. Sam explained that there is a growing market for headstones, particularly the ones with Alaskan Native symbols on them. He remarked that in Alaska, it is very apparent that some people still believe it is OK to desecrate a cemetery. He added that there is very little law that addresses this type desecration; hence the general public feels that it's OK to continue this type of behavior. Even when incidents of vandalism are reported to the police, the law is so vague that nothing is done. Number 1156 MR. SAM reported that cemeteries in Alaska are disappearing on a daily basis because they are not protected. He said that the time has come for the State of Alaska to address this issue and provide protection of these sacred sites. All cemeteries are being vandalized, he said, not just Native sites; many are simply disappearing, and it is very important to protect those that are left. A lot of families feel that they are at a loss and that they have no one to turn to, he added. Mr. Sam informed the committee that he has taken the preservation and protection of these sites on as a lifelong project. He also mentioned that he had recently finished up a project for the Department of Transportation and Public Facilities (DOT&PF) to restore a mausoleum in Sitka; he'd identified and returned 138 bodies back to their home communities and helped re-inter them. However, the problem with doing this, he said, is that these bodies have been placed in unprotected sites, so there is great potential that these sites will be vandalized and destroyed. Again, he said that the time has come to protect "our" burial sites. He concluded by saying that he is in support of HB 187. MR. SAM, in response to questions, explained that rubbing headstones for genealogical purposes can do damage; if rubbed too hard, the stone - even marble - can deteriorate, and in some cases the headstones can topple easily if care isn't taken. CHAIR ROKEBERG asked if places such as the memorial house in Eklutna Village would be included under the definition of "memorial" or "tomb" in HB 187. MR. SAM explained that they are considered to be "memorials," and the one in Eklutna Village is a Russian Orthodox cemetery that has blended the best of both worlds: the people have placed traditional [Native] memorials there as well as church- related memorials. He said that a lot of families have yearly ceremonies at these places, and they will bring the deceased his/her favorite food or a much-cherished object such as a sewing machine, hunting rifle, or rocking chair and place it on the gravesite. He offered that "memorial" can have a rather broad definition. MR. SAM, in response to a question, said that he did not think rubbing should be illegal. He said he feels that more good people need to be attracted to cemeteries in order to cultivate the desire to preserve and protect these sites. Offering tours and allowing rubbings are ways to educate the public. One of the methods he uses is to take the youth in his community to the cemetery and show them the burial sites of their relatives, and in this way encourage them to protect and restore these places; they now have picnics there, and people come and pick up the trash, and in many other ways the community of Sitka has "taken ownership" of the cemetery. He said that to him, a sign of a healthy community is a well-maintained and clean cemetery. Number 1620 REPRESENTATIVE OGAN inquired whether Mr. Sam knew the outcome of the situation in the Barrow cemetery, where ocean erosion had exposed some old graves with well-preserved remains. He noted that there is a section in HB 187 that says "authorized by law to engage in the conduct"; he asked whether there is anything in law that authorizes the type of research engendered by the Barrow situation. CHAIR ROKEBERG again mentioned the forthcoming amendment intended to expand authorizations to include state permits. MR. SAM remarked that with the federal Native American Graves Protection and Repatriation Act, if there is a gravesite that needs to be moved, and if even one family member objects, then federal law will back the family member's decision. He added, however, that over the years he has had the opportunity to work with state and federal agencies in moving graves in a respectful and dignified manner. Number 1767 ELMER MAKUA, Cemetery Caretaker, Tongass Tribe, noted that he has been actively managing and repairing damage to the gravesites on the north point of Pennock [Island] in addition to other gravesite areas. He added that he faces problems similar to those spoken of by Mr. Sam, and that one of the gravesite areas that he manages is located on an island that has been subdivided by the local [Ketchikan] government. He explained that the desecration to these sites comes in the form of encroachments from developments; folks store their lumber at these sites, build fences across them, or keep their equipment in those areas. These acts of desecration are being done "knowingly," he added, and when the perpetrators are confronted, they become very defensive. When the State Troopers are approached for assistance, they are not able to provide any help; they don't know what to do, and neither do the FBI officials when they are asked to help. MR. MAKUA said that his organization has contemplated putting up fences to protect these areas, but he added that it would be preferable to keep the areas open so that, as Mr. Sam suggested, people could be encouraged to take an interest in the historical significance of the sites. He remarked that although many sites are protected under the federal laws, there is still great concern for those sites that are located close to Ketchikan and which are being desecrated and searched for artifacts. He opined that the laws in place are not as strong as they need to be in order to deter people from this behavior. CHAIR ROKEBERG noted that inclusion of the language in HB 187 that refers to sites that appear to be abandoned should help motivate law enforcement officers to protect these sites. Number 1957 DAVID JACOBY, Public Works Director, City of Fairbanks, testified via teleconference and said in his area, they also face the problem of desecration caused by people with "4- wheelers" using the cemetery as "part of their playground" - taking out headstones, digging holes in graves, or removing funerary objects such as the angels that Mr. Sam referred to. Vandalism of this sort creates problems for him and his employees, he explained, not the least of which includes having to inform the family members that they must come to the cemetery and catalogue their losses. These families experience a lot of emotional distress because of this type of crime, particularly when the gravesite belongs to a child. The law needs to be in place, he stated, not so much as a prosecution tool, but as protection and deterrence against this type of behavior. On another point, he said that during the winter in Fairbanks, a crypt is used to store deceased people until the ground thaws, and some people try to break in (one person actually got the doors off) to remove the caskets as a joke. This also is quite an emotional strain on the family, he added, as well as being costly for the city to try to maintain a cemetery that is not a "perpetual care cemetery." He closed by offering support for HB 187. Number 2083 BLAIR McCUNE, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference and said that [the PDA's] concern about HB 187 is that it is invariably a class C felony for doing any amount of damage, desecration, or defacement. In light of the testimony, he added, this behavior is certainly a serious problem, but [the PDA] has hope that there would be some way to draft HB 187 so that if there is only minor defacement, or minor damage, the younger people who are misguided and do this type of thing don't end up, invariably, with a felony. REPRESENTATIVE OGAN, on a different point, brought attention to the language on page 2, lines 7 and 11, which refers to abandoned, lost, or neglected sites. He asked how a person would be able to "knowingly" commit a felony against a gravesite that is lost; the culpability question comes to mind, he added, when the gravesite is lost and a person buys the property. He remarked that he has concern with creating a felony for something that is lost. CHAIR ROKEBERG said he is assuming that "lost" means a loss of title or domain over the actual real property or grounds. REPRESENTATIVE JAMES pointed out that the language says "or memorial appears to be abandoned, lost, or neglected"; she offered if a site is covered over with weeds and trees and it looks as though no one has been there recently, then it would be easy to deduce that the site could be an "abandoned, lost, or neglected" site. REPRESENTATIVE OGAN commented that given Alaska's history, there are probably people buried all over Alaska and no one really knows where the remains are. If a person buys a piece of property with no visible sign that a "cemetery, tomb, grave, or memorial" is located on it, and the owner, during the course of construction or development, uncovers the site, then it becomes a felony to continue work on the area. Representative Ogan opined that it could result in a situation of "regulatory taking." MS. BACKES, with regard to Representative Ogan's point, said that the key words in HB 187 are "appears to be", because this phrase has been used as a defense in the past - that it looked as though it were neglected and no one cared anymore, and thus it was all right to remove things from the site or damage things at the site. To address Representative Ogan's point further, she explained that when someone buys a piece of property and then later finds a grave on that property that appears to be abandoned, lost, or neglected, the person can obtain a permit from the state to deal with that situation if, for example, the site needs to be moved or protected. Therefore, although a person does need to go through the state's permitting process, there is statutory recourse for the homeowner or construction company if the property purchased contains a burial/memorial site. She added that there are also federal laws that deal with, particularly, historic and archeological types of burial sites. Number 2310 CHAIR ROKEBERG, returning to Mr. McCune's point, asked what other statutes are available for police with regard to those people who desecrate cemeteries, if the crime is not criminal mischief in the second degree and [the amount of damage] is less than $500. MR. McCUNE responded that the trespass laws are always available, and that generally, according to [statutory] valuations, [damage] over $500 is a felony; [damage] between $500 and $50 is a class A misdemeanor; and [damage] under $50 is a class B misdemeanor. REPRESENTATIVE BERKOWITZ added that charging someone for "an attempt" to commit the crime is one way of lowering the charge one level. REPRESENTATIVE JAMES, although she acknowledged that some types of damage to these sites could be considered insignificant, surmised that the main focus of HB 187 is to address the cases of severe damage, as was recounted by the testifiers, most of which would amount to more than $500 worth of damage. REPRESENTATIVE BERKOWITZ mentioned that the monetary limits should be revisited. MS. BACKES added that a monetary value cannot be determined for the emotional damage done to a family and the insult done to a person's memory through these acts of vandalism and desecration. REPRESENTATIVE OGAN suggested that perhaps the $500 limit could be removed from HB 187 and the offense kept at a misdemeanor level. CHAIR ROKEBERG opined that this would be a problem because HB 187 is drafted to fit within the criminal mischief statute, and these acts are simply being added to what constitutes criminal mischief in the second degree. Number 2448 REPRESENTATIVE OGAN suggested that some sort of penalty should be considered for those people who do less than $500 worth of damage because even seemingly insignificant acts of damage can do emotional harm to the family. REPRESENTATIVE JAMES opined that the purpose of HB 187 is to stop people from committing these acts of vandalism and desecration to begin with, not necessarily to collect money from perpetrators or put them in jail after the damage has been done. For this reason, if the penalty is too small, she added, it won't make any difference at all - the behavior will continue. REPRESENTATIVE OGAN commented that most of the people doing the damage probably won't know that [this type of behavior] is against the law. CHAIR ROKEBERG mentioned that there might also be the possibility of dropping the level of offense down to the "third and fourth degree," if the committee wishes. TAPE 01-60, SIDE B Number 2486 MS. BACKES remarked that she had not specifically considered the penalties when drafting HB 187, but she added that applying the penalties associated with a class C felony - up to five years in jail and a $50,000 fine - is not unheard of for similar situations in other states. REPRESENTATIVE BERKOWITZ remarked that he understood the concern about being too harsh on youth who are simply doing "dumb things," and he raised the point that there is always suspended imposition of sentence (SIS) available for first-time offenders. But, he added, it seems to him that a felony is appropriate in this area, and he opined that the $500 threshold is low enough that it will be reached in most instances. In addition, he said he has confidence that prosecutors will exercise discretion when the conduct is de minimis, and not charge as a felony but charge as a misdemeanor instead. He went on to explain that just because a prosecutor has the charge of felony desecration of cemetery available, it does not preclude the prosecutor from, for example, charging as criminal mischief in the fourth degree for stealing the park bench that's next to the gravestone. CHAIR ROKEBERG said the committee believes that prosecutors can use the "lesser included forms of mischief." REPRESENTATIVE BERKOWITZ confirmed this interpretation of the statute. Number 2371 CHAIR ROKEBERG, after closing public testimony on HB 187, made a motion to adopt Amendment 1, which would insert "or state permit" after "law" on page 2, line 18, such that it would then read "authorized by law or state permit to engage in the conduct." He explained that this change has been recommended by the University of Alaska, and would expand the affirmative defense provision to include activity at "archeological digs." REPRESENTATIVE BERKOWITZ asked what authority the state has to engage in this conduct. Number 2320 WENDY REDMAN, Vice President for University Relations, University of Alaska, explained that federal law requires that the state issue permits for any kind of activity relating to excavation, identification, and reclamation of any kind of gravesites. Thus, when roads are being laid or erosion is taking place in certain areas, the archeological department of the university is contacted and permits are issued for university people to work with local authorities on preservation and repatriation activities. She said that although local tribal authorities could object to the activities and put a stop to the permit, there have not been any conflicts or disagreements with tribal entities or communities for many, many years. MS. BACKES added that the Department of Natural Resources (DNR) is responsible for issuing these permits. Number 2230 CHAIR ROKEBERG asked whether there were any objections to Amendment 1. There being no objection, Amendment 1 was adopted. Number 2218 REPRESENTATIVE JAMES moved to report HB 187, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 187(JUD) was reported from the House Judiciary Standing Committee.
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