Legislature(1999 - 2000)
04/14/1999 01:20 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER CHAIRMAN KOTT announced the next order of business is HB 75, "An Act relating to murder; authorizing capital punishment, classifying murder in the first degree as a capital felony, and allowing the imposition of the death penalty when certain of those murders are committed against children; establishing sentencing procedures for capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of Appellate Procedure." CHAIRMAN KOTT declared it is not the intent to pass the bill out of the committee today or whenever. There is no immediate intent to move this bill. Number 0804 REPRESENTATIVE MASEK, sponsor of HB 75, Alaska State Legislature, informed the committee that she introduced HB 75 due to her personal belief that capital crimes committed against children should be treated with the most serious consequences society can deliver. She noted that she introduced similar legislation a few years ago. Representative Masek explained that HB 75 allows for the use of the death penalty only in situations where children are kidnaped, assaulted, sexually assaulted, or a combination thereof. She recognized that HB 75 concerns some who oppose the death penalty and in most instances, she said she may agree with those individuals. However, she did not have any sympathy for those who prey upon children. Children need and deserve protection. Even if the death penalty for crimes against children deters only one felon from killing a child, she believed the efforts would be worthwhile. Representative Masek requested the committee's support of HB 75 and Alaska's children. She offered to answer any questions. CHAIRMAN KOTT requested that committee members hold questions in order to take the testimony of those on teleconference. He announced that there is only a 30-minute window for those on teleconference. Therefore, he requested that those on the teleconference who wished to testify today limit their testimony to three minutes or less. Those who can return tomorrow to testify will receive additional time. REVEREND JAY OLSON KETCHUM, testifying via teleconference from Anchorage, stated that she was opposed to HB 75 and capital punishment. She informed the committee that she is a minister of a Presbyterian church and this summer she will be moving to Juneau to serve as the Executive (indisc.) for the churches in Southeast Alaska. Nationally, the Presbyterian Church has opposed capital punishment. Reverend Ketchum believed it was not in society's best interest to use killing as a means to deter killing. Capital punishment will not serve a useful purpose and is uncivilized. Reverend Ketchum did agree that more should be done to protect and care for children. Therefore, she asked the committee to consider the many uses of the resources that would otherwise be used for capital punishment. She understood that implementing the death penalty would have considerable costs. Perhaps, that money could be utilized for better accessibility to health care and higher quality mental health services for more children. Reverend Ketchum emphasized that she has had far too many children in her Anchorage office that cannot get adequate resources and help for mental health and medical services. The money could be used to provide higher quality and affordable day care. She also suggested that the resources being used to consider the death penalty could be utilized to implement prison reform in order to have a rehabilitative system. Capital punishment is not good for Alaskans and she did not believe it would make Alaskans any safer. Reverend Ketchum urged the committee to put the death penalty issue away. Number 1099 DALE KELLEY, Executive Director, Alaskans Against the Death Penalty; Council Director, United Methodist Church throughout Alaska, testified via teleconference from Anchorage in opposition to HB 75. Ms. Kelley stated that she was aware that all major denominations in the United States and elsewhere are opposed to capital punishment. She urged the committee to say "No" to HB 75. The bill has a variety of flaws, one of which would conceivable allow children of any age to be given the death penalty which she felt was morally wrong. "Killing one who killed another does not teach that killing is wrong and that has been reported nationally." She explained that the death penalty illustrates to children that if the reason is good enough, killing is alright. Surely, society can develop a better way to deter violence at all levels. With regard to the argument that the victims of murder demand justice and retribution, Murder Victims' Families for Reconciliation, a national organization, is opposed to capital punishment. MS. KELLEY noted the "factor of innocence" as experienced in Illinois. Recently, Illinois has released 11 people since reinstatement of the death penalty in that state. Those people were proven to be innocent. The "factor of innocence" is moral and ethical, although capital punishment on any level is wrong. CHAIRMAN KOTT asked if all major denominations are opposed to the death penalty, how can the polls which overwhelming indicate that Alaskans support the death penalty, 70 percent to 80 percent, be explained. Number 1326 WILLIAM DEWEY, Attorney, testified via teleconference from Anchorage. He noted that he has been an attorney in Alaska for about 17 years. He informed the committee that he had a written statement that he would forward to the committee. Mr. Dewey opposed HB 75 and the death penalty, in general. With regard to the polls being discussed, Mr. Dewey indicated that the results are different when people have more information. Furthermore, poll results are different when asking if the death penalty should replace life without parole. With regard to serious crimes against children, Mr. Dewey could only remember about three very serious murders and all of those resulted in life without parole. The problem is one of retribution. MR. DEWEY discussed the diary of a Holocaust survivor who was 15 during the Holocaust. The diary entries during the two years after his release from the camps illustrated his strong feelings of revenge, retribution, and the desire to kill those who had perpetrated this crime against he and his family members. After years of reflection, this man became surprised at his incivility at that time and decided that would not be a civilized response to a problem. Mr. Dewey felt the same in this case. Why should courts be given the power of the death penalty, when there are many concerns and criticism with regard to the court's decisions. In conclusion, Mr. Dewey asked the committee not to pass HB 75. CHAIRMAN KOTT announced that witnesses were welcome to fax their written testimony to the committee to be placed in the record. Number 1524 FATHER LEO WALSH, Associate Pastor, St. Anthony's Catholic Church; President, Innerfaith Council of Anchorage, testified via teleconference from Anchorage in opposition to HB 75. He informed the committee that his parish encompasses Mountain View. Father Walsh said that he has had to preside at more than one murdered child's funeral. When there is the proposition to execute/kill the murderer, the victim's family is deprived of the chance to bring their grief to closure. In effect, the victim's family is given a lifetime penance of grief. The death penalty, especially in the murder of a child, achieves the opposite of its intent. Father Walsh explained that with any punishment, there are three factors to consider which are the following: the protection of the community or society at large; the rehabilitation or change of the offender's behavior; and the restoration of moral order. The death penalty does protect society from a similar offense, but removes any chance of rehabilitation of the offender. Father Walsh suggested that the death penalty does not restore moral order, but rather injures it further. For example, two years ago in Mountain View there was a rash of youth violence and the Anchorage Youth Witness for Peace was held. During that meeting, a powerful letter was read from a youth offender who killed another youth. The letter urged youth not to do what he had done. Had that youth been killed that opportunity would have been lost. Father Walsh reiterated his opposition to HB 75. Number 1727 RICH CURTNERS, Attorney, testified via teleconference from Anchorage. He informed the committee that before coming to Alaska he was an attorney in Ohio where he did quite a bit of death penalty litigation. He stressed that the death penalty is an expensive proposition. Ohio has had the death penalty for 20 years and there are 150 people on death row there. Ohio has not yet had an execution. The first death penalty legislation in Ohio was found to be unconstitutional by the U.S. Supreme Court. Ohio's second death penalty legislation has been going through the courts for 15 years. Upon a quick review of HB 75, Mr. Curtners guaranteed the committee that there are many constitutional problems with HB 75 which invite expensive litigation. He commented that any death penalty legislation would be expensive at the trial court level through the appeals and the appellate process through the federal courts. Mr. Curtners stated that HB 75 will much more expensive. He noted that he had the opportunity to review the fiscal note for HB 75 which he felt was a conservative estimate of the expense. In Ohio, after 20 years of death penalty litigation, the Ohio public offender's office has a large death penalty litigation staff strictly for the later appellate stages of habeas work which does not account for each counties local appellate court expenses. Mr. Curtners believed HB 75 will cost Alaska a lot of money which could be better spent to protect children. CHAIRMAN KOTT said that the committee would appreciate any information from Mr. Curtners regarding the portions of the bill that may be unconstitutional. Number 1921 AMY MENARD, Attorney, testified via teleconference from Anchorage. She noted that she had been waiting in a room with other Alaskans for almost two hours to speak on this topic. She wanted the committee to be aware of the concern and dedication among those Alaskans who oppose and regret the consideration of HB 75. Ms. Menard opposed HB 75, but noted that she would not discuss her moral and ethical objections to the legislation. However, she wanted to dovetail into Mr. Curtners comments. Ms. Menard emphasized her frustration that the legislature perennially revisits this issue and in particular now during Alaska's financial difficulties. The death penalty will add significant cost as well as an additional layer of litigation to a court system which is already overburdened and slow. Ms. Menard said that frustration was from her position as an attorney as well as an Alaskan. She agreed that there are many constitutional and legal challenges that would arise from HB 75. The legislation encumbers the supreme court further with jurisdiction for seeing these cases and time lines for hearing appeals. From her personal experience, Ms. Menard informed the committee that appeals before the Alaska Supreme Court routinely run 18 and 24 months at a time. Therefore, she had difficulty understanding how the practical parameters of this legislation would work. In conclusion, Ms. Menard opposed HB 75 and clarified that she and many others oppose this legislation for moral as well as financial reasons. This legislation is a poor use of resources and a poor use of the committee's time. TAPE 99-31, SIDE A Number 0035 MARY GEDDES testified via teleconference from Anchorage in opposition to HB 75. She informed the committee of the following information which she felt pertinent to her opinion on HB 75. First, Ms. Geddes noted that she was expecting a child in the next two months. Second, she said that when she was 15 years of age her best friend was kidnaped, sexually assaulted and strangled to death. Although the images of her best friend's death will always haunt her, she realizes that the death penalty will not bring her best friend back. MS. GEDDES read Lisa Rieger's statement into the record as follows: As one of the few lawyers in the state who has actually tried a death penalty case, I am speaking in opposition to HB 75. Often there is an impression that the costs of the death penalty arrive after trial and conviction during the appeals process. In fact, much of the increased cost occurs during investigation and trial. For example, the trial on which I was involved took seven months of court time. Thus, it is extremely taxing to the court, the jurors, and the attornates. Two prosecutors and two defense attorneys were committed for the entire pre-trial and trial period, exclusively to this case. There is always a danger when yesterday's headlines become tomorrow's laws. This state has had bad experience with that in the past. I strongly urge you to reject this bill. On behalf of both of our families I ask you to vote down HB 75. Number 0267 ARTHUR CURTIS, Minister, Unitarian Universalist Fellowship, testified via teleconference from Anchorage in opposition to HB 75. He found no evidence to illustrate that the death penalty will accomplish any good in the prevention of crime. He commented on the expense of the death penalty and pointed out that the death penalty has not worked in other states. Therefore, he was not certain as to why Alaska would want to join the "brutality sweepstakes." He said that HB 75 is a step backwards and he urged the committee to vote against HB 75. DENNIS HOLWAY, Pastor, Turnagain United Methodist Church, testified via teleconference from Anchorage in opposition to HB 75. He informed the committee that he has served as a United Methodist Minister in Alaska since 1977 and he is currently in his ninth year as pastor at the Turnagain United Methodist Church. Capital punishment does not necessarily rally the clergy around a common voice. However, within the general conference of the United Methodist denomination which represents approximately 8 million members, it is clear that capital punishment is opposed and urged to be eliminated from all capital codes. Pastor Holway noted that his conference does not speak for all United Methodists, but it does speak to all United Methodists. He informed the committee that his opposition was based upon moral and biblical traditions which place value on the life of every human being. Pastor Holway discussed a 17-year-old congregation member who killed his best friend at age 15 when the two were playing with guns. This youth went to McClaughlin which did an excellent job in this case and the youth has been released and is doing well. Pastor Holway hoped that this example illustrates the implications of legislation when a human being is caught in a web of violence even when it is an accident. Number 0618 CHARLES CAMPBELL informed the committee that he was a past director of the Division of Corrections in Alaska. He noted that he has been involved in various aspects of the corrections field for more than 45 years, including service at seven different federal prisons. Among those seven federal prisons, Mr. Campbell served at the Medical Center for Federal Prisoners in Springfield, Missouri, which housed and studied some of the most vicious criminals in the federal system. Mr. Campbell opposed HB 75 and restoration of the death penalty in Alaska under any circumstances. He said that he could understand the sentiment underlying this legislation, but HB 75 is troubling. "Nothing could be more inappropriate, in my opinion, than memorializing the death of a child by killing another human being." Mr. Campbell pointed out that an individual that is so disturbed as to be capable of murdering a child is the type of person who would not be deterred by the prospect of being executed; the opposite effect would be more likely. There is solid research that supports this thinking and he offered to detail such research to the committee. MR. CAMPBELL said that he did not understand why state legislatures, this body included, gives any consideration to such a terrible practice. The death penalty is obscenely expensive and is not useful as a deterrent. Furthermore, the death penalty hampers the cause of good law enforcement and protection of the public. The death penalty is blatantly unfair to racial minorities and defendants unable to afford adequate representation. These facts are not disputed by any reliable or reputable source. With regard to the polls, Mr. Campbell recognized that the polls illustrate that most Americans as well as Alaskans approve of the death penalty, but these same polls show that most Americans do not believe that vengeance is a legitimate reason for the death penalty. Vengeance is the only rational reason for the use of the death penalty. This ultimate, irreversible penalty, is one that falls disproportionately on the poor and the poorly represented. Russia and the Ukraine are the most recent countries to abandon the death penalty. Mr. Campbell commented that Americans are known to be the most compassionate and charitable people on earth, yet Americans are willing to be so isolated on this issue in the world. Continuing the death penalty in America places America in the company of countries such as Iraq, Iran, Lybia, and China. Mr. Campbell expressed the need for the legislators to utilize this opportunity to inform their constituents of the reality of the death penalty and help their constituents understand why they should oppose the restoration of the death penalty. MR. CAMPBELL informed the committee that in 1980 when he served as the Director of the Division of Corrections he was posed with the task of developing a position paper for death penalty legislation. He recalled that he neglected his position as director for two weeks in order to make phone calls, write letters, and read law review journals. As a result, Mr. Campbell became adamantly opposed to the death penalty on all grounds, although his moral and ethical opposition to the death penalty existed prior to this task. Among the studies he reviewed, the 1967 Pearce (ph) and Bauers (ph) study of Northeastern University reviewed the possibility of Christian terrorists. The study reviewed New York State from the time of the establishment of the Borough of Vital Statistics, 60 years. A pattern was found of two additional murders, on average, per month following the month of one or more executions. Mr. Campbell said that about 10 years ago he discussed this with Professor Bauers (ph) who noted that other studies have suggested the same. About two years ago, Mr. Campbell talked with Professor Bauers (ph) who was more convinced that the prospect of execution is more likely to incite a particularly twisted, pre-disposed type of person to commit a violent act than to deter that person. MR. CAMPBELL noted that for many of his years in the federal prison system he was a case worker who compiled social histories. He sat across the table from some of the most depraved, pathological murderers one could imagine. Mr. Campbell emphasized that it would be preposterous to think that such a person would be deterred by the threat of execution; quite the opposite is likely to occur. Therefore, to feel that HB 75 would save one child's life is a poor prospect to count on. When violence is relied upon, which is essentially what the death penalty is, there will be a continuation of more not less violence. In response to Representative Green, Mr. Campbell agreed to provide the committee with a copy of the aforementioned study. Number 1280 PHILLIP PALLENBERG informed the committee that he was the Supervising Attorney for the Public Defender Agency in Juneau, although he indicated that he was not testifying in that capacity. Mr. Pallenberg said that he was present to provide his personal opinions to HB 75. Mr. Pallenberg opposed HB 75 as well as capital punishment. He pointed out that HB 75 is structured such that in all first degree murder cases a separate hearing with the jury in which the jury makes recommendations regarding sentencing would be required. The legislation does not limit the sentencing phase of the trial, which is not currently done, to child murder cases. That seemed to be a Trojan Horse as does the entire bill. If HB 75 passes, he felt that each year another depraved category of murderers would be added. MR. PALLENBERG suggested the committee should focus on the issue of capital punishment in a broader sense, not on child murderers. There seems to be two broad rationales supporting the death penalty which are retribution and deterrence. Those have to be balanced against the monetary costs and, even more importantly, against the potential for innocent people to be executed by the state. As someone working in the legal system for a long time, Mr. Pallenberg was concerned with the latter; jurors are human beings and human beings make mistakes. There is a high potential for innocent people to be executed under such a system. Mr. Pallenberg believed that the only way a bill such as HB 75 made sense morally is if the public can be convinced that the bill will save more lives than it will cost the innocent. He agreed with Mr. Campbell's comments. The more depraved the act the more difficult it is to deter. He said, "Really, the question isn't will capital punishment deter anybody. The question is will capital punishment deter anybody who wouldn't have been deterred by a life sentence without possibility of parole." Number 1550 HUGH FLEISCHER, Executive Board, Alaska Christian Conference; Interfaith Council of Anchorage; Alaskans Against the Death Penalty; testified in opposition to the death penalty in Alaska. He noted that Ms. Lerman is a historian who will provide the committee with information regarding what it was like in Alaska when the death penalty was in place. During that time, 75 percent of those persons executed were Natives and African Americans, even though those people comprised a very small portion of the population. Mr. Fleischer suggested the committee review Alaska's actual experience with the death penalty. Mr. Fleischer concurred with all the previous testimony, specifically that of Mr. Campbell. He emphasized that the state should not emulate murderers because it is against our interest. He echoed the comments regarding the mistakes that are made due to the human judicial system. Mr. Fleischer informed the committee that in the U.S. over 70 people on death row have been cleared of guilt. In Florida, there were 18 such persons who were found to have been erroneously convicted. He noted that every member of the legislature would receive the document entitled, "'Innocent' Why the Death Penalty is Losing its Supporters" which he asked the members to review. MR. FLEISCHER informed the committee that the Criminal Justice Working Group puts out a time line illustrating what happens between the time of arrest and the time of conviction. The Criminal Justice Working Group includes police organizations, prosecutors, the Department of Law, and various persons involved in the criminal justice system. The time line graph is longer than Mr. Fleischer's out-stretched arm. There are innumerable areas where mistakes can be made. He requested that time line be entered as part of the record as with the aforementioned document. Number 1860 CHAIRMAN KOTT expressed concern with the prosecution of an innocent person. With regard to those who have been released in recent years, Chairman Kott suspected that was due to advances in the medical field. Since Alaska has outlawed the death penalty, has Alaska ever released a person and declared the person innocent. MR. FLEISCHER pointed out that virtually all criminal prosecutions resulting in a conviction are appealed. There have been a number of convictions that were overturned by the Alaska Court of Appeals and the Alaska Supreme Court. He noted that the Alaska Court of Appeals which deals exclusively with criminal convictions is excluded from the loop in HB 75, although the Alaska Court of Appeals has the most expertise and experience with criminal law. Mr. Fleischer said that Alaska has not had a capital case in modern history, but it has happened in other comparable states. CHAIRMAN KOTT posed a situation in which a person is sentenced 99 years to life for murder. The person serves 10 years and it is discovered that he/she did not commit the murder and he/she is released. Has such a situation occurred in Alaska? MR. FLEISCHER did not know of a such a case. He offered to research that for the committee. Number 2056 IAN OLSON next came forward to testify. Mr. Olson said that he wanted to direct his comments toward finding a better solution. Thus far, 14 people have testified in opposition to HB 75; not one person has testified in support of HB 75 which he believed to be significant. Mr. Olson directed the committee's attention to the fiscal note which he understood to mean that in the fiscal year 2005, the state would face about $1 million per year to merely run the system of the death penalty. He emphasized that is just to run the system, but does not include the cost to kill someone. Furthermore, it seems that only one or two cases are expected per year. That is a lot of money and the cost increases each year. Mr. Olson commented that the death penalty is a reactive system. MR. OLSON suggested that the solution is a proactive system which funds child programs. Programs promoting alcohol awareness and gun safety should be funded. If the reactive system is chosen, Mr. Olson believed Alaska would enter into a slippery slope with which there seems to be a prioritizing of whose life is more valuable than another. He stressed that a child's life is the most valuable, but the slippery slope will open it up to others. Mr. Olson emphasized the need to be proactive. With regard to Representative Masek's comment that HB 75 is a success even if it only kills one person who has killed a child, Mr. Olson questioned, "What if we were to install a proactive system that saved one child, would she still wonder if this is a success? Would she still wonder if a proactive system is a success if we have it save just one child?" In conclusion, Mr. Olson expressed the need to give HB 75 the upmost attention. CHAIRMAN KOTT pointed out that Mr. Olson's fiscal estimate was conservative because he was looking at only one of the three fiscal notes to HB 75. Number 2384 CAMI MOLINE was next to testify. She informed the committee that she grew up living on the grounds of federal correctional institutions as her father is Mr. Campbell. She has listened for years to the discussion regarding what does and does not work. Ms. Moline noted that she has worked in corrections in Alaska and elsewhere with juvenile offenders. Currently, she is a stay-at-home mom who tells who two sons that peace, justice, and truth should constantly be sought. She hoped the committee would support that, as legislators have the opportunity to exemplify these pursuits in leadership. This is a deeply emotional issue; so much so that peace, justice, truth, and facts can become elusive. She discussed the unimaginable feelings of the families' of victims, but noted that taking the life of another in revenge never resurrects the lost loved one. Peace does not come by these means. She echoed the comments regarding the disproportionate numbers of poor, males of minorities who have been chosen to be deserving of execution. People of resources can avoid conviction. TAPE 99-31, SIDE B MS. MOLINE indicated that life imprisonment is an option at a far less cost. She reiterated the fiscal concerns surrounding instating the death penalty. Ms. Moline requested that the committee put aside HB 75. Number 0038 ELLEN CAMPBELL next came before the committee. She noted a conversation with one of her friends who found it difficult to believe that life imprisonment was cheaper than capital punishment. This lead Ms. Campbell to think of all the reasons why one cannot say that one life is not worthy of further existence. Life is God's gift. She informed the committee that she has known persons with serious crimes in their past and others who, had the death penalty existed, would have lost their redemptive years and the world would have been poorer. Ms. Campbell said that the public wants the legislature to vote to express its wishes. The public wants crime, hideous crimes to be stopped. She commented that those who are most seriously deranged are not responsible as we are sitting here. Ms. Campbell said, "You have been elected for where the truth is. You are informed. You can bring enlightenment to people who, in their fear and in their frustration, say we have to end it so let's kill them, not knowing that forces and energy and money go to wiping out some pitiful, unrepresented, poorly represented minority." In conclusion, Ms. Campbell quoted a verse in the Bible saying, "'Who knows, but for such a time as this you can into the kingdom.' Who knows, but for such a time as this you were elected to the legislature to represent what is right and good for people and I pray that you will exercise your responsibility intelligently and with commitment and courage." CHAIRMAN KOTT announced that HB 75 would be put aside until tomorrow for those to testify who were not able to today.