Legislature(1999 - 2000)

04/15/1999 01:24 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER                                                                                     
CHAIRMAN KOTT announced that the committee would continue its                                                                   
hearing on House Bill No. 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 asked whether the sponsor had                                                              
additional comments.                                                                                                            
Number 0080                                                                                                                     
REPRESENTATIVE BEVERLY MASEK, Alaska State Legislature, sponsor,                                                                
thanked the chairman but indicated she would rather hear the public                                                             
Number 0135                                                                                                                     
CYNTHIA STROUT, Attorney at Law, testified via teleconference from                                                              
Anchorage.  A criminal defense attorney since 1982 and president of                                                             
Alaskans Against the Death Penalty, Ms. Strout said she would focus                                                             
on two areas.  First, current laws sufficiently protect the public.                                                             
She is aware of no case being overturned in our court system where                                                              
people have received sentences of 99 years.  She believes the                                                                   
courts are well able to provide sentences for people who commit                                                                 
homicides under these conditions that will ensure that they are not                                                             
released back into their communities.  Second, somewhat contrary to                                                             
the intent, under this bill the state could execute people 16 years                                                             
old or younger, including a 15-year-old who killed a 12-year-old                                                                
while playing Russian roulette, for example, or a 7-year-old who                                                                
killed his 4-year-old brother, as in a recent case.  Ms. Strout                                                                 
noted that the previous week's newspaper discussed recent studies                                                               
showing that prison populations are full of people who were abused                                                              
as children.  Ms. Strout asked whether it wouldn't be better to put                                                             
the necessary funds to enact this bill into preventing child abuse,                                                             
thereby stopping that cycle of violence.                                                                                        
Number 0407                                                                                                                     
CHAIRMAN KOTT commented that when he had posed the question the                                                                 
previous day, he was inquiring whether anyone was aware of someone                                                              
in Alaska sent to prison for life, then later cleared because of                                                                
finding out that person wasn't the perpetrator of the crime.                                                                    
MS. STROUT referred to an article that she believes the committee                                                               
has, in which studies indicate that when Alaska had the death                                                                   
penalty, in territorial days, there were serious factual questions                                                              
about the guilt of two people who were executed.  She believes that                                                             
other states' history should be a guide; in Illinois, 11 people                                                                 
have been released from death row, for example, based on "factual                                                               
innocence."  Alaska, with no death penalty, has nothing to                                                                      
correlate with that.  However, it should give people pause.                                                                     
Number 0528                                                                                                                     
KEVIN McCOY testified via teleconference from Anchorage in                                                                      
opposition to HB 75.  An Alaska resident since 1976, he is married                                                              
and has raised two children, his most precious connection to this                                                               
world and this state, he told members.  The best teachers have been                                                             
those who teach by example, Mr. McCoy pointed out.  He is most                                                                  
troubled by this proposal because of the example that it sets,                                                                  
trying to teach people, by killing, that killing is wrong.                                                                      
Although he would be devastated if something happened to his                                                                    
children, this bill would not remedy that.  He recalled testimony                                                               
by Marietta Yeager (ph) a few years ago against a death penalty                                                                 
bill; her daughter had been taken from a campground and killed, and                                                             
her comments had really made Mr. McCoy think about the issue.  He                                                               
cannot endorse the death penalty, he told members, because it                                                                   
wouldn't bring the child back.  Furthermore, he wouldn't want a                                                                 
memorial for his child to be the death of another person.  Mr.                                                                  
McCoy endorsed all the comments made the previous day and urged                                                                 
members to vote against this bill.  It would cost too much, it                                                                  
wouldn't work, and it seems there are more serious budgetary                                                                    
concerns, which would have more of a direct, positive impact on                                                                 
Alaskans, he concluded.                                                                                                         
Number 0691                                                                                                                     
M.J. HADEN testified via teleconference from Anchorage in                                                                       
opposition to the death penalty.  A paralegal with the federal                                                                  
public defenders office, she moved to Alaska last year from                                                                     
Georgia, where she had also worked for the federal public defenders                                                             
office.  She noted that her testimony is along the lines of Mr.                                                                 
Curtner's testimony regarding his first-hand experiences with the                                                               
death penalty in Ohio, heard the previous day.  However, her own                                                                
experience, both at the trial level and at the post-conviction                                                                  
stage, was in Georgia, which, unlike Ohio, does execute defendants                                                              
sentenced to death.  Since 1976, when the death penalty was                                                                     
reinstated there, the state has executed 23 people.  In the past 20                                                             
years, three individuals sentenced to the electric chair were                                                                   
proven innocent.  Currently, 123 people are on Georgia's death row.                                                             
MS. HADEN told members that she has witnessed so many pitfalls in                                                               
the implementation of the death penalty in Georgia that it would be                                                             
difficult to share them all.  These include defendants represented                                                              
by lawyers with no criminal law experience; trials where the                                                                    
appointed attorney only met with the defendant a couple of days                                                                 
before trial was to begin; cases where vital exculpatory evidence                                                               
was discovered to have been withheld from defense counsel; and                                                                  
cases where witnesses, including law enforcement officers, were                                                                 
found to have lied.  Furthermore, because the decision of whether                                                               
to seek the death penalty is exclusively that of the district                                                                   
attorney in Georgia, she has seen the death penalty used as a                                                                   
political ploy in election years.  She said she can't begin to                                                                  
recount the disparity and discrimination surrounding Georgia's use                                                              
of the death penalty.                                                                                                           
MS. HADEN shared two memorable moments in her career.  One was her                                                              
first visit to Georgia's death row.  She had been studying her case                                                             
file, reading the transcripts and reviewing the graphic evidence,                                                               
and she didn't know what to expect from this person.  When he came                                                              
in, he was not a monster or a devil, she discovered, but a human                                                                
being who laughed, cried, and got angry like anyone else.  The                                                                  
second memory was from the end of a trial, awaiting sentencing for                                                              
a client who had been found guilty.  Waiting in a room with his                                                                 
mother and brother to see how the 12 jurors had voted, she could                                                                
see the pain on their faces, and the love they still had for their                                                              
family member, despite what he might have done.  "We're talking                                                                 
about putting to death sons and daughters, sisters and brothers,                                                                
mothers and fathers," Ms. Haden concluded.  "We're talking about                                                                
our government killing human beings, and that is wrong."                                                                        
Number 0992                                                                                                                     
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union                                                             
(AKCLU), testified via teleconference from Anchorage in opposition                                                              
to HB 75, noting that the AKCLU is a nonprofit, nonpartisan                                                                     
organization with statewide membership, an affiliate of the                                                                     
American Civil Liberties Union (ACLU) whose mission is to preserve                                                              
and defend the guarantees of individual liberties found in the Bill                                                             
of Rights and in the Alaska constitution.                                                                                       
MS. RUDINGER told the committee that while there is no good reason                                                              
for the passage of HB 75, there are many reasons for its defeat,                                                                
including constitutional and economic factors; the racially                                                                     
discriminatory fashion in which the death penalty is allocated; and                                                             
the fact that people have been sent to death row only to later be                                                               
proven innocent.  She believes that most people would say the                                                                   
government is inefficient and has too much power already.  However,                                                             
adoption of the death penalty would give the state the ultimate                                                                 
power of deciding who lives and who dies.                                                                                       
MS. RUDINGER emphasized the proven racial disparities in the                                                                    
charging, sentencing and imposition of the death penalty.  In 1990,                                                             
the U.S. General Accounting Office reported to Congress that in                                                                 
this nation's trial courts, the killing of a White person is                                                                    
treated much more severely than the killing of a person of color.                                                               
For example, 80 percent of the victims of the 313 people executed                                                               
between January 1977 and the end of 1995 were White.                                                                            
MS. RUDINGER next addressed erroneous convictions resulting in                                                                  
death sentences, which she said have occurred in virtually every                                                                
jurisdiction in the nation.  Advances in scientific technology,                                                                 
such as DNA testing, have exonerated people on death row, and                                                                   
crucial testimony has sometimes later been proven false.  Ms.                                                                   
Rudinger cited two examples.  The first was a Florida couple                                                                    
convicted of a murder; although the husband was executed, the                                                                   
wife's conviction was vacated when it was proven that the crucial                                                               
evidence against them had consisted mainly of the perjured                                                                      
testimony of an ex-convict who had turned state's witness to avoid                                                              
a death sentence himself.  In the second example, reported in the                                                               
Anchorage Daily News in February, a man on death row in Illinois                                                                
was exonerated due to the efforts of students at Northwestern                                                                   
University.  Ms. Rudinger concluded, "All governments do make                                                                   
mistakes.  Please, do not give our state government the power to                                                                
make a mistake by executing an innocent person."                                                                                
Number 1259                                                                                                                     
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department                                                               
of Administration, testified via teleconference from Anchorage.  He                                                             
said he is personally opposed to the death penalty but would                                                                    
address the nuts and bolts of HB 75; in addition, he would try to                                                               
provide written comments about the problems he sees with the bill.                                                              
MR. McCUNE pointed out that because this bill does not call for an                                                              
advisory vote, death penalty prosecutions could begin immediately                                                               
after it became effective.  In addition, when he first saw the                                                                  
bill's title, he expected a statute making an intentional killing                                                               
of a child an offense.  However, on page 3, lines 20 and 21, for                                                                
example, it makes all first-degree murders capital offenses.  This                                                              
bill greatly expands the power of Alaska statutes to have death                                                                 
penalties for other first-degree murders, in addition to the murder                                                             
of a child, to be punished by death.                                                                                            
MR. McCUNE urged members to consider that in recent years the                                                                   
legislature has been asked to expand murder in the first degree, to                                                             
include situations where someone knowingly engages in conduct that                                                              
is not necessarily intentional.  Furthermore, accomplices who do                                                                
not cause the death of a person can be found guilty of murder in                                                                
the first degree.                                                                                                               
MR. McCUNE noted that the bill sets up a sentencing procedure.  He                                                              
called attention to page 8, lines 21 through 23, then explained                                                                 
that if somebody is convicted of any first-degree murder, HB 75                                                                 
would require that person to go to the sentencing phase for a death                                                             
penalty, even though the victim of the offense was not a child.                                                                 
Mr. McCune said that is a very odd provision that doesn't seem to                                                               
fit within the intent of the bill, and he believes that the                                                                     
committee ought to take a close look at it.                                                                                     
MR. McCUNE discussed the aggravating factors, referring to pages 9,                                                             
beginning at line 31, and continuing to page 10, line 8.  Noting                                                                
that this section finally mentions children as victims, he                                                                      
expressed concern that instead of listing the aggravating factors                                                               
numerically, and saying that the jury must find one of the listed                                                               
aggravating factors, the bill says a penalty may be imposed if                                                                  
aggravating factors are found.  He believes that the intention of                                                               
the bill is that all the aggravating factors have to be met before                                                              
a death penalty could be imposed.  However, it could be interpreted                                                             
that if any of the aggravating factors is found, the death penalty                                                              
could be imposed.                                                                                                               
MR. McCUNE next expressed concern that only four mitigating factors                                                             
are listed.  In every other type of criminal case, there is a much                                                              
longer list of mitigating factors that the judge can take into                                                                  
account in deciding what sentence to impose.  These mitigating                                                                  
factors are found in AS 12.55.151(d).  Among them is the defender                                                               
who was an accomplice in the case, but played a minor role; an aged                                                             
defendant who acted under a mental infirmity; the existence of                                                                  
serious provocation from the victim of the offense; and, most                                                                   
important - which Mr. McCune believes absolutely should be included                                                             
as a mitigating factor that the jury, in this case, could take into                                                             
account - is whether the offense was among the least serious of the                                                             
offenses set out in the statute.  However, a jury would be                                                                      
powerless to take that into account, because it is not included in                                                              
the mitigating factors that are in this bill.                                                                                   
MR. McCUNE drew member's attention to page 8, line 28.  He                                                                      
explained that he is concerned about the provision that says that                                                               
evidence [as to any aggravating or mitigating factor] can be                                                                    
admitted "regardless of the admissibility of the evidence under the                                                             
rules of evidence."  He said he understands that in a sentencing                                                                
proceeding hearsay can be allowed if a person has an adequate                                                                   
change to rebut it.  However, he believes that this provision goes                                                              
much beyond that, as it would allow evidence that was illegally                                                                 
seized to be used in the penalty phase in a death penalty case.                                                                 
MR. McCUNE advised members that the final concern regards merit                                                                 
appeals.  On page 10, lines 20 through 31, it says that the                                                                     
sentence review procedure is set up in the Alaska Supreme Court.                                                                
He pointed out that sentence review is distinguished from issues                                                                
like whether the trial judge made errors in admitting evidence,                                                                 
whether illegally seized evidence was admitted, or whether a                                                                    
confession without the benefit of Miranda rights was admitted                                                                   
against the defendant.  These are types of merit appeal issues that                                                             
the Alaska Court of Appeals currently handles.  In this bill, it                                                                
isn't clear which court - the Alaska Court of Appeals or the Alaska                                                             
Supreme Court - would review the merit issues.                                                                                  
Number 1683                                                                                                                     
REPRESENTATIVE KERTTULA responded that the section on page 8, line                                                              
28, about admitting testimony regardless of the admissibility of                                                                
the evidence, had bothered her, as well.  She asked whether Mr.                                                                 
McCune knows what happens in sentencing phases in other states on                                                               
that issue.                                                                                                                     
MR. McCUNE replied that although he hasn't studied other state law                                                              
cases, he has seen federal cases where, for example, the United                                                                 
States Supreme Court has overturned death sentences because of                                                                  
admissibility problems in the evidence.  He said he believes there                                                              
is a U.S. Supreme Court case in which the jury heard prejudicial                                                                
types of statements that had swayed them.  With this provision,                                                                 
he'd be afraid that the trial judge would think that he or she                                                                  
didn't have the power to apply Evidence Rule 403 and find that if                                                               
the probative value of the evidence was not outweighed by the                                                                   
prejudicial effect, the judge would be powerless to remove that                                                                 
evidence from the consideration of the jury.                                                                                    
Number 1755                                                                                                                     
REPRESENTATIVE CROFT referred to page 8, line 22, which says that                                                               
if, after a trial by jury, a defendant is convicted of a capital                                                                
offense, the court shall conduct a separate proceeding.  He asked                                                               
whether the state would run all first-degree murders through this,                                                              
even if there wasn't an allegation that there was a child involved.                                                             
MR. McCUNE replied that it is the way the bill is currently                                                                     
written, which is odd to him, because the title leads him to                                                                    
believe it would involve just murders of a child.  As written,                                                                  
first-degree murder is a capital felony, and for a capital felony,                                                              
there must be a separate sentencing proceeding before a jury.                                                                   
Number 1821                                                                                                                     
BARBARA BRINK, Director, Public Defender Agency, Department of                                                                  
Administration, testified via teleconference from Anchorage about                                                               
the costs.  She said she believes that the fiscal note is                                                                       
self-explanatory.  The figures that seem high are because of the                                                                
unique requirement of "capital litigation."  Capital punishment in                                                              
Alaska, as in every other state, will be more expensive than                                                                    
convicting and sentencing people to life imprisonment without the                                                               
possibility of parole, she explained.  These costs are not what is                                                              
commonly believed to be the result of some frivolous and lengthy                                                                
appeal process, but, rather, the result of the constitutional                                                                   
uniqueness of the death penalty cases, and the safeguards that have                                                             
been set up by the United States Supreme Court.  Ms. Brink expanded                                                             
on that:                                                                                                                        
     Basically, those safeguards require that every jury be given                                                               
     very clear guidelines on sentencing, in exclusive provisions                                                               
     defining what are aggravating and mitigating circumstances.                                                                
     A defendant is constitutionally entitled to have two jury                                                                  
     trials.  The first jury trial is to establish their guilt or                                                               
     innocence, and then, if the person is convicted, they are                                                                  
     entitled to a second jury trial to determine whether or not                                                                
     they should receive the death penalty.                                                                                     
     Constitutionally, every defendant is granted automatic                                                                     
     oversight protection by the state supreme court, and all of                                                                
     these constitutional safeguards translate into what has been                                                               
     described as "super due process."  The result of that                                                                      
     heightened scrutiny - because we're so concerned about who                                                                 
     gets convicted, and we don't want any bad convictions - is                                                                 
     that there is a much more extensive jury selection procedure                                                               
     at any capital trial.                                                                                                      
     There is a fourfold increase in the numbers of motions that                                                                
     are filed in capital cases than in normal murder cases without                                                             
     possibility of the death sentence.  As I've pointed out,                                                                   
     there's a longer, dual sentencing process.  That translates                                                                
     into more investigation needed, more expert testimony needed,                                                              
     and more lawyers who specialize solely in death penalty                                                                    
     litigation.  That, combined with the automatic mandatory                                                                   
     appeals, has resulted in some dramatic costs.                                                                              
     We don't have to operate in a vacuum, and this isn't just my                                                               
     speculation about what it's going to cost. ... There've been                                                               
     a myriad of studies conducted across the Lower 48 in those                                                                 
     states that do have the death penalty, and every one of those                                                              
     studies concludes that it is much more costly to have a death                                                              
     penalty than not to have one.  The most comprehensive study                                                                
     that's been conducted so far was done by Duke University in                                                                
     May of 1993, and it simply studied North Carolina.  In North                                                               
     Carolina, they found that the death penalty cost $2.16 million                                                             
     dollars, per execution, over the cost of a non-death-penalty                                                               
     murder case.  They also determined that the bulk of that cost                                                              
     did occur at the trial level, not the appellate level.                                                                     
     A study in California found that in California the state spent                                                             
     $90 million annually over and above the ordinary costs of                                                                  
     noncapital litigation to have a death penalty.  They also                                                                  
     found that $78 out of that $90 million was incurred at the                                                                 
     trial level.  Florida did a study in 1988 where they found                                                                 
     that they've spent $57 billion dollars on the death penalty                                                                
     between 1973 and 1988, and yet only achieved 18 executions.                                                                
     Therefore, it cost them about $3.2 million to try and convict                                                              
     and execute a single person.                                                                                               
     In Texas, a study was done in 1992, and there they found that                                                              
     the average death penalty case cost the taxpayer $2.3 million,                                                             
     which was three times the cost of imprisoning someone in a                                                                 
     single cell, at the highest level of security, for 40 years.                                                               
     I'd also wanted to point out that even though Florida spent                                                                
     $3.2 million per execution, they've (indisc.) a budget crisis                                                              
     two years ago, similar to what we're looking at; the                                                                       
     department of correction's budget was cut mid-year, and that                                                               
     resulted in the early release of 3,000 prisoners from the                                                                  
     department of corrections.  In Texas, the costs are saved by                                                               
     giving Texas prisoners so much "good time" that the average                                                                
     Texas prisoner only serves 20 percent of their imposed                                                                     
     sentence; and it should also probably mean, though, ... that                                                               
     even though Texas has a death penalty - has had one for years,                                                             
     and has executed the most number of people in the United                                                                   
     States - its murder rate is among the highest in the entire                                                                
     There's some more current data, too, because other states have                                                             
     decided that this is becoming a very costly proposition to                                                                 
     them.  In 1998, a new report from the Nebraska judiciary                                                                   
     committee concluded that any savings that they had from                                                                    
     executing an inmate were far outweighed by the financial legal                                                             
     costs; and the conclusion of that report was a recommendation,                                                             
     or a belief, that the current death penalty was not in the                                                                 
     best interests of Nebraskans.                                                                                              
     The federal government has also studied the cost of the death                                                              
     penalty.  There was a report from the judicial conference on                                                               
     the United States; that report concluded that defense costs                                                                
     were four times higher in any case where the death penalty was                                                             
     brought than ... when death was not sought.  It also concluded                                                             
     that prosecution costs were 60 percent higher than the defense                                                             
     costs, even without adding in all the money provided by law                                                                
     enforcement agents doing investigations.                                                                                   
     A recent study in Louisiana - and that study was done in 1998                                                              
     - convinced the prosecutor that life in prison would be a                                                                  
     better solution than the death penalty.  He said it's a matter                                                             
     of simple economics:  It just costs too much to execute                                                                    
     somebody.  You might remember that a couple of years ago New                                                               
     York was considering whether or not to impose a death penalty;                                                             
     they have recently done so.  But in the studies that they did,                                                             
     to decide whether or not to implement the death penalty, they                                                              
     concluded it was going to cost them $118 million a year.  The                                                              
     first death row inmate in New York, a gentleman by the name of                                                             
     Dale Harris (ph), the entire, total costs of his case are                                                                  
     going to be $3 million; and a recent columnist decided that                                                                
     after spending $3 million for a capital case, they really had                                                              
     bought themselves nothing that they couldn't have gotten with                                                              
     a sentence of life without parole. ...                                                                                     
     Washington State is also looking at the cost of their death                                                                
     penalty.  They had determined, according to a 1999 study, that                                                             
     a single death penalty trial approaches $1 million.  The                                                                   
     county - who down in Washington is responsible for providing                                                               
     those fees - had to let one government position go unfilled;                                                               
     they've eliminated (indisc.); they've drained a $300,000                                                                   
     contingency fund; they eliminated all capital improvements;                                                                
     and a sheriff's request to replace a van ... for prisoners,                                                                
     which has broken down, has been canceled.  So, in those                                                                    
     states, the smaller jurisdictions have to pay for it, and are                                                              
     having a very ... hard time of doing it.                                                                                   
     The state of Ohio also did a recent study; this is also from                                                               
     1999.  They spent $1.5 million to kill one person; he actually                                                             
     was mentally ill and asked to be executed, and didn't even                                                                 
     want any appeals.  So, they're finding it to be a pretty high                                                              
     cost, as well.                                                                                                             
Number 2164                                                                                                                     
REPRESENTATIVE CROFT referred to page 2 of the fiscal note, where                                                               
it states the assumption that this would only be done where the                                                                 
victim was under the age of 18.  He agreed with Mr. McCune that as                                                              
the bill reads, on page 3, murder in the first degree is a capital                                                              
felony, punishable under AS 12.55.125, which lists these "sort of                                                               
aggravated first-degree" offenses, including killing a police                                                                   
officer, having done it before, or clear and convincing evidence of                                                             
torture.  He asked Ms. Brink how she would change the fiscal note                                                               
if they take the bill at its word and include every aggravated                                                                  
offense, every "mandatory 99" trial, that will be held in Alaska.                                                               
MS. BRINK explained that the fiscal note assumption was that the                                                                
bill didn't mean what it says and would be corrected in drafting.                                                               
As to Representative Croft's question, the calculation would be                                                                 
difficult to do off the top of her head.  For every defendant who                                                               
currently gets sentenced to the 99 years, they would do an                                                                      
additional jury trial, which she doesn't believe would be more than                                                             
a couple of cases per year.  It would cost her staff additional                                                                 
investigation, witness testimony and, mostly, time, as a jury trial                                                             
is much more time-consuming than is a hearing before a judge.  It                                                               
is not the same as figuring the cost of capital litigation, she                                                                 
pointed out.                                                                                                                    
Number 2289                                                                                                                     
REPRESENTATIVE CROFT said that Ms. Brink had made assumptions to                                                                
bring the fiscal note down, to make it a conservative number.  He                                                               
asked whether Ms. Brink had used the studies she had cited to make                                                              
the fiscal note.                                                                                                                
MS. BRINK affirmed that.  She had also consulted with Rich Curtner,                                                             
the chief federal defender for Alaska, who had testified the                                                                    
previous day, she said, although he had not identified himself as                                                               
such.  Because Mr. Curtner is one of the few people in Alaska with                                                              
capital litigation experience, she had relied on figures and                                                                    
information that he had at his disposal.                                                                                        
MS. BRINK reported that she also had looked at the American Bar                                                                 
Association standards; they have published exclusive guidelines for                                                             
the appointment and performance of counsel in death penalty cases.                                                              
They require, specifically, that in any case where the death                                                                    
penalty is sought, two qualified trial attorneys must be assigned                                                               
to represent the defendant.                                                                                                     
Number 2337                                                                                                                     
REPRESENTATIVE CROFT remarked that he just wanted to get on the                                                                 
record that this is, if anything, a conservative fiscal note.  He                                                               
then stated his understanding that as the bill is drafted, it is a                                                              
"sort of superfluous jury trial" if the victim is known to be over                                                              
the age of 18.  However, it says that "the following aggravating                                                                
factors may be considered"; if construed to mean that other                                                                     
aggravating factors could be considered, then this is no longer a                                                               
superfluous trial.  He asked whether, under that reading, all of                                                                
these "not mandatory 99s" would become death penalty cases.                                                                     
MS. BRINK agreed it could be read that way, although she believes                                                               
they would try to read it in a much more narrow sense.  She pointed                                                             
out that in addition to the facts of whether the child who died was                                                             
under 18, the jury has to decide what punishment is appropriate;                                                                
the purpose of the sentencing jury trial is to introduce a whole                                                                
variety of evidence concerning the defendant's entire life, so that                                                             
the jury can decide that.  "So, I don't think a jury trial would                                                                
ever be superfluous if the state was asking for capital punishment,                                                             
because there would be many more issues happening at the jury                                                                   
trial, not just proof of the mitigators or aggravators," she                                                                    
Number 2406                                                                                                                     
REPRESENTATIVE CROFT said that is an interesting point, although he                                                             
doesn't know that he understands it.  He asked, "If we knew for a                                                               
fact that the victim was a 55-year-old, ... what does this empower                                                              
that jury trial to determine, other than whether it's capital or                                                                
MS. BRINK said that is the part that doesn't make, the way the bill                                                             
is drafted.   She explained, "In a capital trial, they usually                                                                  
draft the statute so that the jury's decision is 'life' or 'death.'                                                             
So, they'd have to make that decision, in addition to deciding                                                                  
whether or not there's enough proof to prove all those aggravators                                                              
or mitigators.  In this case, if every capital murder - which is                                                                
defined as first-degree murder for a jury trial - conceivably, I                                                                
suppose, if you gave the statute its most broad interpretation, you                                                             
could have the jury deciding what (indisc.) this defendant could be                                                             
facing, which is very odd.  It would not usually happen under the                                                               
Alaska Statutes, where sentencing is purely the province of the                                                                 
judge."  She offered to provide written facts and figures relating                                                              
to her earlier testimony.                                                                                                       
TAPE 99-32, SIDE B                                                                                                              
Number 0001                                                                                                                     
MS. BRINK mentioned that Los Angeles County spends $3 million per                                                               
execution.  She expressed concern that the exorbitant cost of                                                                   
capital punishment is apt to make Alaska less safe, because badly                                                               
needed financial and legal resources will be diverted from more                                                                 
effective crime-fighting strategies.  For example, the greatly                                                                  
increased number of police officers on the street is responsible                                                                
for the reduced crime rate, she said, both nationwide and in                                                                    
Alaska.  In states with the death penalty, however, police are                                                                  
being laid off, prisoners are getting released early, and the court                                                             
systems are clogged.  Ms. Brink told members, "Let's not turn                                                                   
Alaska into another state where millions of dollars are poured into                                                             
the death penalty machine, with no resulting increase in public                                                                 
CHAIRMAN KOTT thanked Ms. Brink and asked that she forward the                                                                  
studies and statistics to the committee.                                                                                        
Number 0106                                                                                                                     
MARGO KNUTH, Assistant Attorney General, Office of the Commissioner                                                             
- Juneau, Department of Corrections (DOC), came forward, specifying                                                             
that she was speaking only for the DOC, not the Department of Law.                                                              
She told members that the DOC's fiscal note for HB 75 indicates the                                                             
department would need $2.185 million the first year for a capital                                                               
expenditure, to build a separate, ten-bed death row facility.                                                                   
MS. KNUTH explained that other states' experience is that death row                                                             
inmates are a distinct population within a prison.  They have                                                                   
nothing to lose.  They present a special danger to other inmates                                                                
and to correctional officers, with a special risk for escape                                                                    
attempts.  It is not possible to keep death row inmates in the                                                                  
general prison population.  The special facility that would need to                                                             
be built would appropriately be at Spring Creek Correctional                                                                    
Center, the state's current maximum-security facility.  Additional                                                              
operating expenses for manning this facility are also reflected in                                                              
the fiscal note.                                                                                                                
MS. KNUTH said the DOC's budget has been cut by the House, by $3                                                                
million, this year.  [She later corrected this, clarifying that                                                                 
they had received $3 million less than they need.]  She told                                                                    
members, "One of the things that we do, in trying to evaluate how                                                               
to function with a decreased budget, is the first thing to go are                                                               
new initiatives; things that we have not started yet are not taken                                                              
on.  And that makes sense, that when you're trying to evaluate what                                                             
to do with finite resources, you have to honor your ongoing                                                                     
commitments in the first place.  And it seems inappropriate to the                                                              
Department of Corrections that when we're going to be short maybe                                                               
$3 million, for dealing with overcrowding and for trying to deal                                                                
with the existing population that we have, that we would incur a $2                                                             
million obligation to do something that we have not done in the                                                                 
state, since statehood. ... The timing is unfortunate."                                                                         
MS. KNUTH advised members that in ten years of testifying before                                                                
this committee, not once had she expressed a personal opinion on a                                                              
bill.  However, the subject of the death penalty is one that people                                                             
obviously have strong feelings about.  Noting that as a former                                                                  
prosecutor she has seen "horrible human beings," she recounted how                                                              
Tony Garcia (ph) in Juneau committed one of the most heinous                                                                    
offenses; he drove out in the Valley, randomly picked a household,                                                              
knocked on the door, and stabbed to death the person who answered                                                               
the door, with no provocation or justification.  She stated, "A                                                                 
despicable human being.  Nonetheless, I've got to tell you, if it's                                                             
wrong to kill, it's wrong to kill.  And all we do is reduce                                                                     
ourselves to the level of these offenders, if we take on this                                                                   
prerogative of saying, 'I'm going to make a value judgment on your                                                              
life, and I'm going to decide that it is appropriate, somehow, for                                                              
you to be killed. ... It's not a level that state government should                                                             
stoop to.  It would bring us down to their level, and I know we can                                                             
do other things with these offenders.  Tony Garcia is never going                                                               
to go anywhere, except maybe to Colorado, where he's wanted on                                                                  
multiple murder convictions, as well."                                                                                          
Number 0305                                                                                                                     
CHAIRMAN KOTT asked whether the Garcias of the world, who aren't                                                                
going anywhere, pose more of a threat, to society and the security                                                              
of those charged with looking after them, than those on death row.                                                              
He suggested that they have nothing to lose, either.                                                                            
MS. KNUTH replied, "There actually is something substantively                                                                   
different about facing death, the death penalty.  We do have a                                                                  
number of inmates in Alaska who are serving 99-, 300-, 400-year                                                                 
sentences.  And, in fact, I'll guarantee you that they were                                                                     
involved in the manufacture of the desks that you are sitting at                                                                
now.  Most of our correctional industries workers are convicted                                                                 
murderers who have these extremely long sentences.  And I've been                                                               
through Spring Creek.  I've been to the program there.  I've met                                                                
them.  And they're good workers. ... They're in there for the long                                                              
haul, and they're proud ... to have a useful activity.  And so,                                                                 
you've got different types of people.  Tony Garcia is not the type                                                              
of person I'm describing.  I mean, he really is a loathsome human                                                               
being.  But there is a group of murderers out there who are in                                                                  
their 50s, and even older now, who are making a contribution                                                                    
somehow.  And so, as is always true, there's a continuum of people                                                              
out there, and there'll be some who are like Tony Garcia, but                                                                   
that's the exception."                                                                                                          
Number 0393                                                                                                                     
CHAIRMAN KOTT referred to the DOC's fiscal note, which anticipates                                                              
construction of a ten-bed facility to house these death row                                                                     
inmates.  He asked whether the average appeals time for those on                                                                
death row is ten years, and whether some of those could extend                                                                  
beyond ten years.  He noted that if there were more than one                                                                    
capital case per year, there could be a need for additional beds.                                                               
MS. KNUTH replied, "You're quite right, and especially if we're to                                                              
consider that Alaska's population is predicted to continue                                                                      
increasing.  If we have just one capital case a year now, sooner or                                                             
later our population is going to double, and that, in itself, will                                                              
increase numbers."  She indicated the fiscal note assumes some                                                                  
degree of stability in the state.                                                                                               
CHAIRMAN KOTT asked, "Can you anticipate what we would do, in the                                                               
event that we had more on death row than we had the ability to                                                                  
accommodate?  Ship them out to Arizona?"                                                                                        
MS. KNUTH replied, "By the way, Mr. Chairman, Arizona won't take                                                                
our worst boys.  We have to keep them.  Private prisons don't want                                                              
the Tony Garcias.  They will not take them.  And that's something                                                               
we need to keep in the back of our minds when we're using private                                                               
prisons.  They do not want your maximum-security inmates.  They                                                                 
want 'mediums.' ... We would have to ... expand it somehow, and a                                                               
facility like this would have to be built so that it could be                                                                   
Number 0476                                                                                                                     
REPRESENTATIVE CROFT pointed out that the Public Defender Agency                                                                
had estimated two to three capital cases per year, whereas in                                                                   
constructing the ten-bed facility, the DOC estimated one bed per                                                                
year for the fiscal note.                                                                                                       
MS. KNUTH affirmed that, explaining that there is a significant                                                                 
difference between the number of cases tried and the number of                                                                  
convictions anticipated.                                                                                                        
REPRESENTATIVE CROFT asked whether, if Alaska had had a death                                                                   
penalty, Tony Garcia would have known that and therefore been                                                                   
MS. KNUTH responded, "As Mr. Campbell so eloquently testified                                                                   
yesterday, the more depraved the person, the less likely there is                                                               
any rational process going on.  And deterrence assumes a rational                                                               
thought process.  Deterrence works wonderfully for me.  I am                                                                    
personally never going to do something that places me in [the]                                                                  
prison population, because I don't want to be there.  But we've got                                                             
judgment-impaired people, and those are the ones who commit the                                                                 
worst offenses, and they have the least going on upstairs.  And we,                                                             
as a society, have never found an adequate way of dealing with                                                                  
Number 0546                                                                                                                     
REPRESENTATIVE GREEN asked whether there is any chance, in Ms.                                                                  
Knuth's estimation, that a judge may someday find a disparity                                                                   
between the treatment of those like Garcia and those like the men                                                               
who make furniture, ruling that it is somehow inequitable, although                                                             
both groups would be serving 99 years or more.                                                                                  
MS. KNUTH replied that departments of corrections are given fairly                                                              
broad latitude in evaluating the risk posed by inmates, and are                                                                 
expected to make individualized determinations. "So, I think not,"                                                              
she concluded.                                                                                                                  
Number 0638                                                                                                                     
REPRESENTATIVE ROKEBERG stated his understanding that the                                                                       
legislature had raised the DOC budget by $5 million this year, and                                                              
that perhaps it was the request that was $3 million less.                                                                       
MS. KNUTH replied, "We were underfunded $3 million from what we                                                                 
believe is essential to meet our current population.  But thank you                                                             
for the correction."                                                                                                            
REPRESENTATIVE ROKEBERG said he believes there was testimony before                                                             
the finance subcommittee, by the commissioner, that they've reached                                                             
a plateau on population growth.  He asked whether Ms. Knuth knows                                                               
if that is still holding up in the last month.                                                                                  
MS. KNUTH answered, "We are experiencing some growth, but not as                                                                
much as had been forecasted, say, a year ago.  And we're very                                                                   
fortunate in that regard.  But we are overexpense, overbudget; for                                                              
example, at Cook Inlet facility, we're holding more inmates there                                                               
than we have room for, because Anchorage is the service hub for                                                                 
medical services and items like that.  So, even though our total                                                                
population is being very cooperative with our budget crisis, we do                                                              
still have a problem."                                                                                                          
Number 0703                                                                                                                     
CHAIRMAN KOTT asked whether anyone else wished to testify, then                                                                 
closed public testimony.                                                                                                        
Number 0721                                                                                                                     
REPRESENTATIVE GREEN commented that this is the third death penalty                                                             
bill that he has seen in this committee over seven years.  He noted                                                             
that the general public sometimes doesn't have access to this much                                                              
detail, and polls often reflect how a question was asked.  In a                                                                 
poll in his own district, the initial question was asked:  Do you                                                               
favor the death penalty?  And 60 percent said yes.  However, when                                                               
asked whether they would favor it if they knew that the cost was                                                                
two and a half times as great, the same respondents changed their                                                               
answers, and the positive answers fell below 50 percent.  He                                                                    
pointed out that that doesn't go to the moral issue or the issue or                                                             
later proving that someone is innocent.  He also noted that Texas                                                               
is now reconsidering whether they should keep the death penalty.                                                                
Representative Green concluded by saying he has reservations about                                                              
even moving this from the committee.                                                                                            
Number 0874                                                                                                                     
CHAIRMAN KOTT asked the sponsor whether the intent is to try to                                                                 
convict and execute a 15-year-old for killing a 12-year-old.                                                                    
REPRESENTATIVE MASEK replied, "The intent of the bill was not to                                                                
put a 15-year-old to death.  It's for people that are over the age                                                              
of 18, for adults that prey upon children, and that being children                                                              
under the age of 18."                                                                                                           
CHAIRMAN KOTT noted that there had been discussion that Section 6                                                               
leads one to believe that those who committed a murder in the first                                                             
degree would fall within the purview of the bill, based on the                                                                  
aggravators.  He asked whether that is the intent.                                                                              
REPRESENTATIVE MASEK answered, "Well, the title is pretty                                                                       
restrictive, Mr. Chairman.  It says for murder of the child."  She                                                              
said that any other language therefore will not change what the                                                                 
title says.                                                                                                                     
CHAIRMAN KOTT maintained that there is a problem with that one                                                                  
section.  He pointed out that even the title says "An Act relating                                                              
to murder;" at the beginning.  He said he doesn't know if that is                                                               
the intent, to go that far.                                                                                                     
REPRESENTATIVE MASEK replied, "No, that isn't the intent.  It was                                                               
just for those that kidnap and assault and murder children."                                                                    
Number 1033                                                                                                                     
REPRESENTATIVE ROKEBERG said there seem to be technical problems                                                                
that need to be worked on.                                                                                                      
CHAIRMAN KOTT agreed, acknowledging that there are other issues, as                                                             
well.  He noted that testifiers the previous day had provided good                                                              
information, and that the committee had requested background                                                                    
information and studies from one family member who had testified,                                                               
as well as statistics from Barbara Brink regarding costs.  Chairman                                                             
Kott said although this committee is not charged with the financial                                                             
aspects, the bill certainly does have costs associated with the DOC                                                             
and the judiciary that should be addressed.  He said he wants to                                                                
work with the drafter regarding the intent.                                                                                     
CHAIRMAN KOTT assigned HB 75 to a subcommittee, to be chaired by                                                                
Representative Green.  Also on the subcommittee would be                                                                        
Representatives James and Croft.  He asked them to try to iron out                                                              
the difficulties with the legal side, after which they perhaps                                                                  
could discuss other issues.                                                                                                     
REPRESENTATIVE GREEN asked whether they could seek outside                                                                      
expertise on legal issues.                                                                                                      
CHAIRMAN KOTT agreed to that, emphasizing the need to start with                                                                
something that clearly is indicative of the will of the sponsor.                                                                
[HB 75 was held over.]                                                                                                          

Document Name Date/Time Subjects