Legislature(2009 - 2010)CAPITOL 120

02/25/2009 01:00 PM JUDICIARY

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01:26:16 PM Start
01:34:49 PM HB9
04:14:40 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Public testimony will be limited
to 3 minutes
+ Bills Previously Heard/Scheduled TELECONFERENCED
HB 9 - CAPITAL PUNISHMENT                                                                                                     
1:34:49 PM                                                                                                                    
CHAIR RAMRAS announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.  9,  "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                                                               
for  certain  murders;  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."   [Before the committee was                                                               
the  proposed committee  substitute (CS)  for HB  9, Version  26-                                                               
LS0036\E,  Luckhaupt,  2/18/09, which  was  adopted  as the  work                                                               
draft on 2/23/09.]                                                                                                              
1:35:02 PM                                                                                                                    
DIXIE  A. HOOD,  M.A.,  after recounting  some personal  history,                                                               
said  she considers  it to  have  been an  enlightened move  when                                                               
Alaska abolished the  death penalty, and considers  the effort to                                                               
reestablish  the   death  penalty  to  be   irrational,  fiscally                                                               
irresponsible,  and morally  reprehensible.   She shared  that in                                                               
the mid-'80s she'd developed a  substance abuse treatment program                                                               
for inmates  of the  Lemon Creek  Correctional Center,  which, at                                                               
the time,  was the only facility  in the state that  housed those                                                               
convicted  of the  most serious  and violent  crimes.   One thing                                                               
that disturbed her, she relayed,  was the attitude of the guards,                                                               
who, in general,  seemed to scorn the idea  of rehabilitation and                                                               
interfered   with  rehabilitation   efforts  made   by  teachers,                                                               
counselors,  and chaplains.   Also  disturbing, however,  was the                                                               
disproportionate number of Alaska  Native inmates - approximately                                                               
40 percent, even though statewide  Alaska Natives constitute only                                                               
about 17 percent of the population.                                                                                             
MS.  HOOD -  after sharing  some  information about  some of  the                                                               
inmates she'd met,  including that alcohol abuse seemed  to be at                                                               
the  root  of their  experiences  -  opined that  life  sentences                                                               
without possibility  of parole  would be  sufficient to  keep the                                                               
public safe.   Noting that as  a family counselor she  has worked                                                               
with residents  in halfway houses, co-led  mens' anger management                                                               
groups,   worked   with   substance  abuse   clients,   counseled                                                               
perpetrators and  victims of domestic  violence (DV),  and worked                                                               
with  dropouts and  runaways, she  opined that  there is  a great                                                               
need for  additional funding of educational  and social services,                                                               
and preventative  and rehabilitative  programs.   Alaska's public                                                               
funds should be used for  more such services and programs instead                                                               
of  for   hiring  the  additional  staff   and  constructing  the                                                               
execution  facility  required with  the  institution  of a  death                                                               
penalty.   In conclusion, she urged  the committee to kill  HB 9,                                                               
not human beings.                                                                                                               
MS. HOOD, in  response to questions, said punishment  seems to be                                                               
the  justification  used  for  putting   people  in  prison,  and                                                               
clarified that  one of  her points  is that  if more  funding had                                                               
been  provided  for  educational  and social  services,  and  for                                                               
preventative and  rehabilitative programs, particularly  in rural                                                               
areas of the state, then a  lot of the crimes that have occurred,                                                               
and the substance-abuse related  problems that have arisen, would                                                               
have been prevented.                                                                                                            
1:44:54 PM                                                                                                                    
SUSAN  S.  McLEAN,  Acting   Deputy  Attorney  General,  Criminal                                                               
Division, Department  of Law  (DOL), in  response to  a question,                                                               
relayed  that members'  packets now  include statistics  from the                                                               
Department  of  Corrections  (DOC)  illustrating  the  number  of                                                               
inmates  convicted of  the crime  of murder  in the  first degree                                                               
from  1972 through  2008; a  breakdown of  that number  indicates                                                               
that 105 inmates  received sentences of between 90  and 99 years,                                                               
and 12 inmates received sentences of over 100 years.                                                                            
REPRESENTATIVE   COGHILL   indicated    interest   in   obtaining                                                               
statistics regarding how  many of those inmates were  found to be                                                               
mentally retarded.                                                                                                              
REPRESENTATIVE HOLMES referred to  the list of mitigating factors                                                               
in proposed  AS 12.58.050, and  questioned whether  Fetal Alcohol                                                               
Spectrum Disorder  (FASD) ought  to be  included as  a mitigating                                                               
MS. McLEAN  indicated that if  FASD is defined by  the Diagnostic                                                               
and Statistical Manual of Mental  Disorders, Fourth Edition (DSM-                                                               
IV), as  a mental disease or  defect, then it would  qualify as a                                                               
mitigating factor [under proposed AS 12.58.050(9)], which read:                                                                 
     the  capacity  of  the   defendant  to  appreciate  the                                                                    
     wrongfulness of  the defendant's conduct or  to conform                                                                    
     the defendant's conduct to the  requirements of law was                                                                    
     substantially impaired  as a  result of  mental disease                                                                    
     or  defect;  however, a  person  found  to be  mentally                                                                    
     retarded  under AS  12.58.060 may  not be  sentenced to                                                                    
REPRESENTATIVE HOLMES  noted that under [proposed  AS 12.58.100],                                                               
the Alaska  Supreme Court has 60  days to review the  judgment of                                                               
conviction of a capital felony.                                                                                                 
1:51:06 PM                                                                                                                    
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS),  in  response  to  a   question,  said  that  that  60-day                                                               
timeframe  isn't  realistic, though  the  court  can extend  that                                                               
timeframe for good cause.   The national average for resolving an                                                               
appeal before  a state  supreme court  in a  capital [punishment]                                                               
case is  699 days, and a  recent study conducted by  the State of                                                               
Arizona indicated  [an average] of  870 days.  The  ACS estimates                                                               
that a capital  punishment case - assuming a  three-month trial -                                                               
will  probably generate  about 24,000  pages  of transcripts;  in                                                               
Arizona, it  takes about  five months to  get transcripts  to its                                                               
supreme court,  and in another  state, it  takes about a  year to                                                               
get  transcripts to  its supreme  court.   He  surmised that  the                                                               
review  timeframe would  be extended  in every  case, as  allowed                                                               
under the bill.                                                                                                                 
REPRESENTATIVE  HOLMES noted  that [proposed  AS 12.58.100  also]                                                               
mandates  that  the  review  by  the  Alaska  Supreme  Court  has                                                               
priority over all other cases,  and asked whether there are other                                                               
types  of  supreme court  cases  that  have been  given  specific                                                               
priority in the law.                                                                                                            
MR.  WOOLIVER   said  that  as   a  practical   matter,  election                                                               
challenges follow a  fast track.  However, under  the bill, death                                                               
penalty cases  will trump all  other cases,  and one way  the ACS                                                               
will attempt to  offset the impact of death penalty  cases on the                                                               
Alaska  Supreme Court  will be  through the  use of  an appellate                                                               
staff attorney  with expertise in [death  penalty cases]; Arizona                                                               
has done this, New York did  it before its death penalty statutes                                                               
were   found   to   be  unconstitutional,   and   Illinois   [is]                                                               
recommending doing it as well.                                                                                                  
REPRESENTATIVE  HOLMES asked  whether the  timeframe outlined  in                                                               
proposed  AS  12.58.110  -  Issuance  of a  death  warrant  -  is                                                               
1:55:15 PM                                                                                                                    
MR.  WOOLIVER  said  that  that   timeframe  won't  trump  what's                                                               
required by the [U.S. Constitution],  that being extensive review                                                               
by all levels of courts.                                                                                                        
REPRESENTATIVE  HOLMES asked  whether  the court  would have  the                                                               
ability  to  extend  the  timeframe   [outlined  in  proposed  AS                                                               
12.58.010]  that the  attorney  general would  have  to seek  the                                                               
death penalty.                                                                                                                  
MR.  WOOLIVER said  he  doesn't  know.   In  response to  another                                                               
question, he  relayed that the  ACS has  not taken a  position on                                                               
HB 9.                                                                                                                           
MS.  McLEAN relayed  that the  DOL has  not taken  a position  on                                                               
HB 9.                                                                                                                           
DWAYNE PEEPLES,  Deputy Commissioner, Office of  the Commissioner                                                               
- Juneau, Department  of Corrections (DOC), relayed  that the DOC                                                               
has not taken a position on HB 9.                                                                                               
1:58:19 PM                                                                                                                    
QUINLAN  G. STEINER,  Director, Central  Office, Public  Defender                                                               
Agency (PDA),  Department of  Administration (DOA),  relayed that                                                               
the PDA has not taken a position on HB 9.                                                                                       
1:58:32 PM                                                                                                                    
RACHEL  LEVITT,  Director,  Anchorage Office,  Office  of  Public                                                               
Advocacy (OPA), Department of  Administration (DOA), relayed that                                                               
the OPA has not taken a position on HB 9.                                                                                       
MS.  McLEAN,  in response  to  another  question, clarified  that                                                               
under the  bill, a person who  commits the crime of  murder of an                                                               
unborn child would be exempted from a sentence of death.                                                                        
REPRESENTATIVE GATTO observed  that language on page  9, lines 1-                                                               
3, says  in part:  A  defendant convicted of murder  of an unborn                                                           
child under AS  11.41.150(a)(1) shall be sentenced  to a definite                                                           
term of  imprisonment of at least  20 years but not  more than 99                                                           
REPRESENTATIVE  LYNN shared  his  belief that  the death  penalty                                                               
should  also apply  to the  crime of  murder of  an unborn  child                                                               
because a life is a life.                                                                                                       
MR.  PEEPLES, in  response to  questions,  said that  the DOC  is                                                               
assuming it  would not have  to house someone sentenced  to death                                                               
until 2012;  that until  someone is sentenced  to death,  the DOC                                                               
would handle inmates  charged with a capital felony  the same way                                                               
it handles  all other inmates  charged with murder; that  the DOC                                                               
is assuming  that death penalty  cases would involve a  very long                                                               
appeals  process -  the national  average being  up to  13 years;                                                               
that the DOC  anticipates reserving one unit at  the Spring Creek                                                               
Correctional Center for housing  inmates who've been sentenced to                                                               
death; that  in anticipation  that there would  at some  point in                                                               
time be  some death sentences  to be  carried out, the  DOC would                                                               
build  a small  "death house"  out  of view  of the  rest of  the                                                               
aforementioned correctional  facility; and that most  of the time                                                               
that death  house would be kept  in a state of  readiness but not                                                               
MR.  PEEPLES  indicated that  once  a  death  sentence is  to  be                                                               
carried out,  that death  house would be  staffed with  people on                                                               
overtime  until  after the  execution,  and  that the  DOC  would                                                               
address  any additional  staffing  needs via  the regular  budget                                                               
process.   He surmised that the  DOC would work with  the ACS and                                                               
the DOL to  come up with an anticipated rate  of accrual of those                                                               
sentenced  to  death, and  then  make  adjustments to  the  DOC's                                                               
fiscal note for HB 9.                                                                                                           
REPRESENTATIVE  DAHLSTROM  asked  whether  states  with  a  death                                                               
penalty offer  specialized training or  psychological evaluations                                                               
for those responsible for carrying out the executions.                                                                          
MR. PEEPLES  said, "We  are aware  of that;  we would  be walking                                                               
through the psychological."  He  indicated that the DOC would not                                                               
have the same  staff in the death house for  every execution, and                                                               
that such staff  would be chosen on a volunteer  basis, and would                                                               
not be the same people as  would be managing the remainder of the                                                               
unit's population.   In response to another question,  he said he                                                               
is not familiar  with any studies regarding the  effects on staff                                                               
of  having to  execute someone,  but surmised  that such  studies                                                               
have  been conducted.   In  response  to a  further question,  he                                                               
indicated that the  DOC anticipates taking extra  steps to comply                                                               
with  the enactment  of HB  9  and to  deal with  the effects  of                                                               
executing people  - including increased stress  levels associated                                                               
with the  approach of an  execution date  - and that  those extra                                                               
steps are outlined in the DOC's fiscal note.                                                                                    
REPRESENTATIVE GATTO questioned whether  those sentenced to death                                                               
are typically kept sedated prior to execution.                                                                                  
MR. PEEPLES said he would research that issue.                                                                                  
MS.  McLEAN,   in  further  response  to   an  earlier  question,                                                               
clarified that HB 9 would not  change the current penalty for the                                                               
crime of murder of an unborn child.                                                                                             
2:16:58 PM                                                                                                                    
REPRESENTATIVE LYNN referred to  proposed AS 58.060(5), and asked                                                               
which test would be used to  determine whether a person has an IQ                                                               
of 70  or below,  and whether  the issue of  which test  would be                                                               
used  ought to  be clarified,  particularly given  that different                                                               
tests could result in different IQ scores.                                                                                      
MS. McLEAN  relayed that the  U.S. Supreme Court Case,  Atkins v.                                                             
Virginia addresses  the issue of  mental retardation  and capital                                                             
punishment; that  the language [in  the bill] was  taken directly                                                               
from  that  case; and  that  in  that  case  the court  took  its                                                               
language directly from  the DSM-IV, which, she  surmised, is what                                                               
would be used  by licensed clinicians when making  a diagnosis of                                                               
mental retardation.  In response  to a question, she acknowledged                                                               
that the issue  of who would be making such  a diagnosis could be                                                               
further clarified in the bill.                                                                                                  
MR.  WOOLIVER, in  response to  a question  regarding testing  of                                                               
deoxyribonucleic acid  (DNA) evidence, offered  his understanding                                                               
that nationally such  testing has resulted in a  number of people                                                               
on death row being exonerated.                                                                                                  
CHAIR RAMRAS  pointed out, though, that  Alaska currently doesn't                                                               
require post-conviction  testing of  DNA, and surmised  that that                                                               
issue  would probably  have to  be revisited  should HB  9 become                                                               
2:24:00 PM                                                                                                                    
MR. STEINER, in  response to a question, said he  is not aware of                                                               
any  case occurring  in Alaska  in  which a  person convicted  of                                                               
[murder] was later exonerated because of DNA testing.                                                                           
REPRESENTATIVE  HOLMES asked  what percentage  of violent  crimes                                                               
actually have DNA evidence associated with them.                                                                                
MS. McLEAN  offered her understanding  that DNA evidence  is more                                                               
often a  deciding factor in  sexual assault  cases then it  is in                                                               
homicide cases.   It would be the rare homicide  case that rested                                                               
solely upon DNA evidence, she added.                                                                                            
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]                                                                   
MR. STEINER concurred that DNA  evidence is more commonly used in                                                               
sexual assault cases than in murder cases.                                                                                      
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
MR.  STEINER,  in response  to  comments,  pointed out  that  the                                                               
methods for  testing DNA evidence  have changed over the  years -                                                               
and that relates directly  to whether post-conviction "retesting"                                                               
is  appropriate -  and that  recently  there has  also been  wide                                                               
criticism  of  the  techniques  used to  process  DNA  and  other                                                               
scientific evidence  as creating  potential unreliability.   That                                                               
is  an issue  that remains  subject to  litigation, and  can thus                                                               
drive up the cost of cases [reliant upon such evidence].                                                                        
REPRESENTATIVE  HOLMES  noted  that  a  study  conducted  by  the                                                               
National  Academy  of  Sciences  appears to  be  questioning  the                                                               
reliability of  DNA evidence, and  offered her  recollection that                                                               
the Department  of Public  Safety (DPS)  had recently  relayed to                                                               
the committee  that some of  the DNA samples  it had sent  out of                                                               
state had been contaminated.                                                                                                    
2:29:44 PM                                                                                                                    
RICK SIKMA observed that society's  increasing tolerance for just                                                               
about everything  has carried over  into not  having consequences                                                               
for wrongdoing.  He said he  has been involved in prison ministry                                                               
for about  30 years  and has counseled  those who  have committed                                                               
murder, and relayed  that when he's asked such  convicts why they                                                               
killed  someone, their  response  has been  that  they knew  they                                                               
could get  away with it,  and when  he's asked them  whether they                                                               
would  still have  committed murder  if they'd  known they  would                                                               
face  the  death  penalty,  they've said  that  that  would  have                                                               
prevented  them  from  committing   the  murder.    He  therefore                                                               
disagrees with  the argument that  instituting the  death penalty                                                               
won't have  a deterrent effect,  he remarked, adding,  "I believe                                                               
that there  should be a  death penalty;  however, if we  have the                                                               
death penalty,  ... we have  to make  certain that the  person is                                                               
guilty of what  they've ... [been accused of doing],  and that we                                                               
don't  make any  mistakes,  because  death is  very  final."   He                                                               
mentioned that  he's also counseled  those whose loved  ones were                                                               
murdered, and they've  been concerned that the  person who killed                                                               
their loved one  won't face any consequences other  than a prison                                                               
sentence  that ends  after [several]  years.   In conclusion,  he                                                               
said he thinks that the death penalty should be passed into law.                                                                
2:33:55 PM                                                                                                                    
THOMAS WEISE,  Pastor, Cathedral of  the Nativity of  the Blessed                                                               
Virgin Mary, after mentioning that  the pastor who's witnessed 95                                                               
executions  at Huntsville  Unit  in Texas  would  be speaking  in                                                               
Juneau next  month, read a  paragraph from a  document pertaining                                                               
to the  use of Centering Prayer  in Folsom State Prison.   Father                                                               
Weise  said  he  believes  strongly  that  society  needs  to  be                                                               
protected from  dangerous people, and surmised  that what's being                                                               
debated  are the  differences  between a  life  sentence and  the                                                               
death penalty.   In conclusion, he urged the  committee to defeat                                                               
HB 9.                                                                                                                           
2:38:53 PM                                                                                                                    
RICHARD  DIETER, Executive  Director,  Death Penalty  Information                                                               
Center  (DPIC),  noting that  he  is  also an  adjunct  professor                                                               
teaching  a  course   on  the  death  penalty   at  the  Catholic                                                               
University of America Columbus School  of Law, explained that the                                                               
DPIC  is   a  nonprofit  organization  that   conducts  research,                                                               
releases reports, and provides a national perspective on death                                                                  
penalty issues.  He went on to say:                                                                                             
     Around the  country, the death penalty  has become both                                                                    
     unwieldy and  a liability to  many states.   What we're                                                                    
     seeing  is a  declining  use in  the  death penalty,  a                                                                    
     dramatic 60 percent drop in  death sentences and [a] 50                                                                    
     percent drop in executions.   Fewer states now have the                                                                    
     death  penalty  -  New York  and  New  Jersey  recently                                                                    
     dropped it  - [and  there is]  less public  support for                                                                    
     the death  penalty.   And I think  the reason  why this                                                                    
     decline  in the  use  is occurring  is  because of  the                                                                    
     cases of  innocence.  There's  now been 130  people who                                                                    
     have been freed from death  row since the death penalty                                                                    
     came back in  the 1970s.  It's not the  fact that these                                                                    
     cases  are  all  old  ones;  more  than  half  of  them                                                                    
     occurred  since 1995,  and there  were  four more  last                                                                    
     The most prominent ones are  the ones with DNA testing,                                                                    
     and  I   think  those  are  significant   because  they                                                                    
     indicate that  sometimes the system  - the  trials, the                                                                    
     appeals,  the commutations,  even -  miss the  innocent                                                                    
     people,  and it  takes  something  outside the  system,                                                                    
     namely  science or  sometimes journalists  or sometimes                                                                    
     volunteer lawyers, to  find out who is  innocent.  That                                                                    
     has  shaken  the  public's   confidence  in  the  death                                                                    
     penalty, so support has dropped,  and what we're seeing                                                                    
     around  the country  is  states actually  reconsidering                                                                    
     ... [whether  to] have  the death  penalty.   There are                                                                    
     now eight  states that have legislation  to abolish the                                                                    
     death  penalty;  they  are   finding  that  [the  death                                                                    
     penalty is] ... not producing what they expected.                                                                          
     A typical  example would be  New Jersey, which  had the                                                                    
     death penalty  for 25 years  [but] no  executions; they                                                                    
     estimated their  expenses were $253 million  over those                                                                    
     years.   And  now  in the  state  of Kansas,  actually,                                                                    
     where they're  also considering a  bill to  abolish it,                                                                    
     again,  15   years  of  the  death   penalty  [but]  no                                                                    
     executions  and, frankly,  none  on the  horizon.   The                                                                    
     death penalty  is becoming harder to  implement because                                                                    
     our   whole  system   has  been   shaken  ...   by  the                                                                    
     revelations  of   the  mistakes,   and  that   has  ...                                                                    
     [resulted in] a  tighter scrutiny on this.   It is also                                                                    
     increased  the time  between sentencing  and execution.                                                                    
     It is  now at its  longest time -  close to 13  years -                                                                    
      between ... when the average person is sentenced, to                                                                      
     when they're executed.                                                                                                     
MR. DIETER,  in conclusion, said he  thinks that there are  a lot                                                               
of reasons  for a state to  think twice about both  the practical                                                               
costs and the  judicial costs associated with  the death penalty.                                                               
In response  to questions,  he explained  that since  1973, there                                                               
have been  130 people on death  row who were either  acquitted of                                                               
all charges  or had all charges  dropped by the prosecution  - 17                                                               
of those 130  people were freed as a result  of DNA testing; that                                                               
from  1973  to  present,  approximately 8,000  people  have  been                                                               
sentenced to death; and that in  that time, there have been about                                                               
1,100  executions.   So  for  every  nine  people who  have  been                                                               
executed, another one person has been freed as innocent.                                                                        
MR.  DIETER,   in  response  to   another  question,   said  that                                                               
approximately  15,000 murders  are  committed every  year in  the                                                               
U.S.; that 115 people received  the death sentence [in 2007]; and                                                               
that 37  people were executed in  2008.  He surmised  that if the                                                               
people on death row hadn't  gotten the death sentence, they would                                                               
have  instead gotten  the maximum  penalty  that a  state had  to                                                               
offer.  In  response to a further question, he  said those states                                                               
that are considering abolishing their  death penalty are now also                                                               
citing costs  as a factor.   If the  goal is to  prevent innocent                                                               
people from even  being convicted to begin with,  then money must                                                               
be spent  on a  quality defense program,  on training  for judges                                                               
and prosecutors,  and on  a full  appeals process,  because costs                                                               
and innocence, and costs and  representation are related.  States                                                               
with  the  death  penalty  are  now  questioning  what  they  are                                                               
actually  getting for  all the  money  they are  spending on  the                                                               
death penalty.   Almost all states  with a death penalty  have no                                                               
more than one execution in a  year, though last year and the year                                                               
before  most states  with the  death penalty  had no  executions.                                                               
Also, the amount  of time before an execution  actually occurs is                                                               
getting longer.                                                                                                                 
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]                                                                   
2:49:23 PM                                                                                                                    
MR.  DIETER,  in  response  to  a  question,  surmised  that  two                                                               
expectations of  a death penalty are  retribution and deterrence.                                                               
He's  heard testimony,  however,  indicating  that the  "victims'                                                               
community"  is becoming  frustrated because  although retribution                                                               
is  promised,  it doesn't  actually  happen;  not only  do  death                                                               
penalty cases  take 13-15 years  to conclude, most  death penalty                                                               
cases are  overturned for  reasons other  than innocence,  and so                                                               
only about  one-fourth of those  sentenced to death  are actually                                                               
executed.    Furthermore, because  the  death  penalty is  rarely                                                               
applied,  it  doesn't send  much  of  a deterrence  message;  the                                                               
states  with the  death  penalty have  higher  murder rates  then                                                               
those states that have abolished the death penalty.                                                                             
REPRESENTATIVE HOLMES questioned how  long appeals take for cases                                                               
involving death  sentences compared  to cases  involving life-in-                                                               
prison sentences.                                                                                                               
MR.  DIETER relayed  that the  big difference  is that  the death                                                               
sentence  is not  carried  out  for 15  years,  if ever,  whereas                                                               
someone  sentenced to  life in  prison is  actually serving  that                                                               
sentence even through the appeal  process.  Another difference is                                                               
that for  a death sentence case,  a lawyer - sometimes  more than                                                               
one - is assigned to the  case for the entire appeal process, and                                                               
that's not  true for cases  involving a  life-in-prison sentence.                                                               
Yet another difference  is that a death penalty  case will likely                                                               
be overturned -  about 68 percent of such cases  are overturned -                                                               
whereas  a  life-in-prison  case,   in  addition  to  being  less                                                               
controversial, will  likely never  be overturned  - less  than 10                                                               
percent of "other criminal" cases are overturned.                                                                               
2:53:59 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked whether there  is a trend in legal                                                               
decisions from federal courts towards  expanding the scope of the                                                               
death penalty.                                                                                                                  
MR. DIETER  said that during the  past 10 years there  has been a                                                               
clear tendency  towards narrowing  it; for example,  the mentally                                                               
retarded and juveniles are now  excluded from receiving the death                                                               
penalty, the death penalty now  no longer applies to crimes other                                                               
than murder, and  states are now required to spend  more money on                                                               
defense in death penalty cases.                                                                                                 
REPRESENTATIVE GRUENBERG questioned how  many of the 1,100 people                                                               
who've been  executed since 1973  would [still be  alive] because                                                               
of changes in the law had they not been executed when they were.                                                                
MR.  DIETER, remarking  that  that would  be  hard to  determine,                                                               
surmised  that  there are  probably  eight  executed persons  who                                                               
might have been exonerated had DNA testing been available.                                                                      
REPRESENTATIVE  GRUENBERG  clarified  that  he  wants  statistics                                                               
detailing how many [would not  have been executed] due to changes                                                               
in the law  as opposed to scientific advances.   For example, how                                                               
many were  mentally retarded,  and how many  were guilty  of rape                                                               
rather than murder.                                                                                                             
MR. DIETER  acknowledged that all  who were executed  before they                                                               
turned 18 years of age would  not have been executed because of a                                                               
change in the law, as would  all who were mentally retarded - and                                                               
some estimate that to be about  10 percent of those on death row.                                                               
And  although no  one has  been executed  for the  crime of  rape                                                               
recently, there  were people  on death  row for  that crime.   He                                                               
surmised,  therefore, that  perhaps  hundreds of  the people  who                                                               
were executed  would today have  been spared.   In response  to a                                                               
question, offered  his recollection that approximately  35 people                                                               
under  the age  of  18 were  executed.   In  response to  another                                                               
question, he  offered to research  the issue further  and provide                                                               
the committee with more statistics.                                                                                             
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
3:02:33 PM                                                                                                                    
DAVID TOWNSEND  (ph) said  he has mixed  feeling about  the death                                                               
penalty.  If one of his family  members were to be harmed in such                                                               
a way as  to warrant the death penalty for  the perpetrator, then                                                               
that's  what should  happen,  he opined,  but  surmised that  the                                                               
costs associated with instituting the  death penalty would be too                                                               
3:04:01 PM                                                                                                                    
SOPHIE CLARK  (ph) explained  that a teacher  at her  school whom                                                               
she knew was  murdered, and so she is familiar  with how that can                                                               
affect everyone who knows a murder  victim.  She said she doesn't                                                               
really know  if a  death sentence  is an  appropriate punishment,                                                               
particularly given  that it's  often said  that one  should treat                                                               
others how  one would like  to be treated,  and given that  it is                                                               
incongruent  to kill  people for  their crimes  while admonishing                                                               
others not to kill.                                                                                                             
3:06:38 PM                                                                                                                    
CHARLES  ROHRBACHER, Deacon,  Cathedral  of the  Nativity of  the                                                               
Blessed Virgin Mary; Roman Catholic  Diocese of Juneau, said that                                                               
as a  catholic, he is  pro-life and  believes that as  a society,                                                               
people  have a  duty to  protect  human life  from conception  to                                                               
natural  death.    In  keeping   with  the  church's  magisterial                                                               
teaching, as a  matter of faith and as a  matter of principle, he                                                               
relayed,   he  is   opposed  to   capital  punishment   in  every                                                               
circumstance.  Offering his personal experience with the death                                                                  
penalty, he said:                                                                                                               
     In  1977,  I  was  ... [a]  journalist,  and  I  became                                                                    
     involved in the case of  a young Korean immigrant named                                                                    
     Chol Soo Lee.   He'd been wrongfully  convicted in 1973                                                                    
     of a  gang slaying in  San Francisco, and while  he was                                                                    
     in prison  he was  attacked by  another inmate  and, in                                                                    
     self defense, he killed his  attacker.  But having been                                                                    
     convicted as  a gang killer  already, his plea  of self                                                                    
     defense was  quickly pushed aside,  and in  short order                                                                    
     he  was convicted  and sentenced  to death  and put  on                                                                    
     death row  in San  Quentin [State] Prison.   Now,  as a                                                                    
     journalist,  I  helped  in  the  investigation  of  the                                                                    
     circumstances  of that  first degree  murder conviction                                                                    
     that landed Chol Soo Lee in prison in the first place.                                                                     
     We discovered that he'd been  convicted on the basis of                                                                    
     being identified  as the murderer by  white tourists in                                                                    
     [San Francisco's] China Town  who'd witnessed the crime                                                                    
     from  a distance,  and,  unfortunately,  for them,  all                                                                    
     Asians seemed to look alike.   He barely spoke English,                                                                    
     his  public defender  got a  change of  venue and  then                                                                    
     pulled  out of  the case  two weeks  before trial,  and                                                                    
     then he  was defended  by a pro  bono attorney  who was                                                                    
     appointed  by the  court  at the  last  minute with  no                                                                    
     investigation.   In  addition, there  was a  tremendous                                                                    
     amount of  political pressure from the  public and from                                                                    
     municipal authorities to get a conviction.                                                                                 
MR. ROHRBACHER continued:                                                                                                       
     Years  later, it  was even  discovered that  police and                                                                    
     prosecutors   had   suppressed  important   exculpatory                                                                    
     evidence; they  failed to  inform his  defense attorney                                                                    
     that the police had  statements from other witnesses to                                                                    
     the  crime  who had  told  police  that he  wasn't  the                                                                    
     gunman or  who identified an entirely  different person                                                                    
     as the killer.  In 1982,  after he spent eight years of                                                                    
     solitary  confinement  on  death  row  in  San  Quentin                                                                    
     [State Prison], Chol  Soo Lee was granted  a new trial,                                                                    
     was  completely exonerated,  was acquitted  by a  jury,                                                                    
     and released from prison.                                                                                                  
     Now,  my  involvement  in the  struggle  to  save  this                                                                    
     innocent  young  man  from execution  taught  me  this:                                                                    
     that  human  beings   are  inherently  fallible;  human                                                                    
     beings can be  relied on to make mistakes  from time to                                                                    
     time; they can be relied  on to get things wrong; [and]                                                                    
     they  can  be relied  on  to  even act  carelessly  and                                                                    
     sometimes even  unjustly.  Our  institutions, including                                                                    
     our  judicial  system,   are  human  institutions  and,                                                                    
     therefore, they're inherently fallible.                                                                                    
     Now  ordinarily,  when  our   courts  make  mistakes  -                                                                    
     inevitable  mistakes -  it's  possible  to rectify  the                                                                    
     wrong done and restore  a wrongfully convicted person's                                                                    
     liberty to them.  But  the death penalty is irrevocable                                                                    
     - it's beyond the powers  of limited and fallible human                                                                    
     beings to bring a  wrongfully executed person back from                                                                    
     the dead.   And because  of [the] fallibility  of human                                                                    
     beings  and   of  human  institutions,  one   thing  is                                                                    
     certain:   innocent  men  and women  have  and will  be                                                                    
     condemned  to   death,  and  they  have   and  will  be                                                                    
MR. ROHRBACHER went on to say:                                                                                                  
     My son  used to introduce  me to people [as],  "This is                                                                    
     my dad, he works for the  Pope" - which is true, except                                                                    
     he doesn't  sign my  paycheck.  And  the person  I work                                                                    
     for, the  Pope, is infallible,  but only in  matters of                                                                    
     faith and  morals; even  he would be  the first  to say                                                                    
     that he's  not infallible when  it comes to  matters of                                                                    
     life and death  and of criminal justice.   I think that                                                                    
     the  possibility, even  the  probability, that  despite                                                                    
     whatever  safeguards may  be  in  place, that  innocent                                                                    
     persons might  die at the  hands our  State authorities                                                                    
     should deter  us, should deter you,  from restoring the                                                                    
     death penalty in  our state.  And so for  this reason I                                                                    
     urge you to vote against this.                                                                                             
3:11:31 PM                                                                                                                    
MR. ROHRBACHER,  in response  to a  question, explained  that the                                                               
Catholic Church  - "from the  Pope on down"  - is opposed  to the                                                               
death penalty;  it would  be gravely sinful  to inflict  death on                                                               
anyone for the  purpose of retribution or revenge,  and there are                                                               
now less  severe, less violent,  ways of protecting  society, and                                                               
so those in  public leadership positions have  a moral obligation                                                               
to choose those less violent ways when seeking societal self-                                                                   
3:17:23 PM                                                                                                                    
TOM   WRIGHT,  Staff,   House  Majority   Office,  Alaska   State                                                               
Legislature,  in  response  to  a  question,  relayed  that  when                                                               
discussing  the bill  with the  drafter, Mr.  Luckhaupt explained                                                               
that no  other state's death  penalty law provides a  sentence of                                                               
death for  the murder of  an unborn  child, and neither  does the                                                               
federal Unborn  Victims of  Violence Act  of 2004.   This  is why                                                               
HB 9 provides that  the crime of murder of an  unborn child won't                                                               
be subject to the death penalty.                                                                                                
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]                                                                   
REPRESENTATIVE LYNN  noted that  he's received a  memorandum from                                                               
the  drafter addressing  that issue,  and mentioned  that he  may                                                               
propose an amendment [altering that provision].                                                                                 
MS. McLEAN,  in response to  a question, surmised that  the court                                                               
would decide  what level of  practitioner would  be administering                                                               
the test regarding  mental retardation; that it would  be left to                                                               
that person to decide which test  to use; and that the outcome of                                                               
that test will be subject to litigation.                                                                                        
MR. WRIGHT reiterated  that proposed AS 12.58.010 of  Version E -                                                               
which  incorporates changes  suggested  by the  DOL and  complies                                                               
with  new  U.S.  Supreme  Court findings  -  now  authorizes  the                                                               
attorney  general,   rather  than   the  district   attorney,  to                                                               
determine whether  to seek  the death penalty;  now has  a notice                                                               
period of  120 days  instead of  10 days;  and now  provides that                                                               
that notice period may be extended by the court.                                                                                
MS.  McLEAN  added  that  the  longer notice  period  is  a  more                                                               
reasonable amount  of time in  which to determine whether  a case                                                               
warrants pursuit of the death penalty.                                                                                          
MR.  WRIGHT reiterated  that proposed  AS 12.58.020  now provides                                                               
that a  separate sentencing procedure  shall be  conducted before                                                               
the same  jury that determined guilt.   At the suggestion  of the                                                               
DOL,  that  proposed section  also  now  provides a  standard  of                                                               
"beyond a reasonable doubt" -  the highest standard available and                                                               
already defined;  contains language stating that  the jurors need                                                               
not agree  on the specific  aggravating factor; and  now provides                                                               
that the  jury must find  that death is the  appropriate sentence                                                               
for the defendant.                                                                                                              
REPRESENTATIVE  HOLMES   asked  whether   the  standard   of  "no                                                               
reasonable  doubt"  is  used  by   other  states  [with  a  death                                                               
MR.  WRIGHT  said  no.    He  then  indicated  that  proposed  AS                                                               
12.58.030 now contains conforming language.                                                                                     
MS. McLEAN  added that the  changes made in Version  E's proposed                                                               
AS 12.58.030 simply clarify that the jury must make findings.                                                                   
3:25:24 PM                                                                                                                    
MR. WRIGHT mentioned that proposed  AS 12.58.040, which lists the                                                               
aggravating factors that may be  considered, now addresses serial                                                               
killing via language that says:                                                                                                 
     (3) the  defendant has been convicted  of murdering two                                                                    
     or more  individuals under AS  11.41.100, or  a similar                                                                    
     law  of this  or  another  jurisdiction, regardless  of                                                                    
     whether the deaths  occurred as the result  of the same                                                                    
     act or of several related or unrelated acts;                                                                               
REPRESENTATIVE  HOLMES  surmised  that  that  aggravating  factor                                                               
would  apply   to  someone  being  sentenced   after  just  being                                                               
convicted of murdering more than one person.                                                                                    
MR.  WRIGHT  concurred.    He then  explained  that  proposed  AS                                                               
12.58.050  now pertains  to  "relevant"  mitigating factors;  the                                                               
addition of  the word "relevant"  was made  to conform to  a U.S.                                                               
Supreme Court ruling.                                                                                                           
REPRESENTATIVE HOLMES asked who determines relevancy.                                                                           
MS. McLEAN said the court would.   In response to a question, she                                                               
explained  that the  defined  body of  law  regarding that  issue                                                               
indicates  that  the  court  should   not  exclude  any  possible                                                               
mitigating  factors, and  defines  "relevance"  as anything  that                                                               
tends to make a fact more likely than not.                                                                                      
MR.   WRIGHT  relayed   that  under   Version   E,  proposed   AS                                                               
12.58.100(b)(3)  now  says  that  on   review,  the  court  shall                                                               
determine  whether  the sentence  is  excessive  compared to  the                                                               
penalty imposed in similar cases,  considering both the crime and                                                               
the defendant;  this language change  gave rise to  the inclusion                                                               
language regarding excessive review found in Section 27.                                                                        
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
MR. WRIGHT relayed that Version  E's proposed AS 12.58.310(b) now                                                               
ensures that  a person who  is found incompetent to  be sentenced                                                               
to  death will  still  receive a  sentence  commiserate with  the                                                               
crime  he/she committed;  this addresses  a concern  expressed by                                                               
the DOL.                                                                                                                        
MS. McLEAN,  in response to  a question, said that  under current                                                               
statute, the court - at the  time of sentencing - has the ability                                                               
to restrict discretionary-parole eligibility.                                                                                   
MR. WRIGHT relayed  that Section 27 was included in  Version E to                                                               
address  the fact  that  Alaska doesn't  currently  have a  death                                                               
penalty, and so  the first death penalty case may  end up setting                                                               
the  standard  for  reviewing  whether a  sentence  of  death  is                                                               
MS.  McLEAN, to  correct an  answer she  gave earlier,  explained                                                               
that the administration, in  concept, supports capital punishment                                                               
but has not yet decided  exactly which statutory changes it would                                                               
MR. WRIGHT, referring to the  60-day review period for the Alaska                                                               
Supreme  Court stipulated  in  proposed  AS 12.58.100,  indicated                                                               
that [the  sponsor] is  aware that that  review will  take longer                                                               
than  60 days  and  so will  get that  issue  clarified with  the                                                               
CHAIR RAMRAS turned the gavel over to Vice Chair Dahlstrom.                                                                     
3:34:25 PM                                                                                                                    
DENISE  MORRIS,  President/CEO,   Alaska  Native  Justice  Center                                                               
(ANJC), said  she would  be speaking in  opposition to  the death                                                               
penalty,  and  mentioned  that other  [testifiers]  have  already                                                               
expressed some of her concerns.  She went on to say:                                                                            
     The   death  penalty   is  racially   and  economically                                                                    
     [biased].   It claims  innocent [lives].   It is  not a                                                                    
     deterrent.   The cost  is [significantly]  greater than                                                                    
     life  in  prison  without  parole.    In  addition,  it                                                                    
     appears  that the  national trend  is to  [abolish] the                                                                    
     death  penalty,   and  yet  we  are   thinking  of  ...                                                                    
     reinstating the  death penalty in  Alaska.  And  I want                                                                    
     to give a little  history about the disparate treatment                                                                    
     in Alaska.   When  Alaska was  a territory,  there were                                                                    
     six  individual   men  that   were  hanged   under  the                                                                    
     territorial  legislation;  of  those  men,  three  were                                                                    
     Alaska  Native,  two  were African  American,  one  was                                                                    
     another  person  of  color, yet  most  of  the  capital                                                                    
     crimes  and murders  committed were  committed by  non-                                                                    
     minority individuals.                                                                                                      
     And then,  after a prolonged debate,  the death penalty                                                                    
     was abolished,  and the two individuals  that sponsored                                                                    
     that measure  were Warren Taylor  and Vic  Fischer, and                                                                    
     Vic   Fischer  stated   that   one  factor   motivating                                                                    
     abolishing the  death penalty was apparent  racial bias                                                                    
     in the  application of the  death penalty.   Today, the                                                                    
     Alaska Native community  is extremely concerned because                                                                    
     Alaska  Natives  currently,  today, represent  over  36                                                                    
     percent  of  the  incarcerated  population  across  the                                                                    
     state,  yet  we  only  represent   16  percent  of  the                                                                    
     population as a whole and  only 13 percent of those old                                                                    
     enough to be imprisoned.                                                                                                   
MS. MORRIS continued:                                                                                                           
     As  indicated  by  the  status  report  of  the  Alaska                                                                    
     Supreme  Court  [Advisory  Committee] on  Fairness  and                                                                    
     Access ...,  on average, Alaska Natives  receive longer                                                                    
     sentences  and  more  severe   or  harsh  sentences  in                                                                    
     addition.   Native defendants  spend 26  [percent] more                                                                    
     time  incarcerated  during  the  total  span  of  their                                                                    
     cases.   [For]  ...  violent  offenses, Alaska  Natives                                                                    
     spend 58  percent more time incarcerated,  and for drug                                                                    
     cases,  Alaska  Natives  spent 139  percent  more  time                                                                    
     incarcerated.       The   report    highlighted   other                                                                    
     unwarranted  disparities   such  as  having   a  public                                                                    
     attorney versus  a private  attorney.   Defendants with                                                                    
     private   attorneys   spent   55  percent   less   time                                                                    
     [incarcerated]    pre-disposition;   they    spent   56                                                                    
     [percent]   less   [time]   ...   incarcerated,   post-                                                                    
     disposition;   and  93   percent   overall  less   time                                                                    
     incarcerated during their case.                                                                                            
     And, unfortunately, Alaska Native  youth in the justice                                                                    
     system  aren't  faring  any better;  they  comprise  20                                                                    
     percent  of the  juvenile  justice  population, but  30                                                                    
     percent  of  the  juveniles   within  the  Division  of                                                                    
     Juvenile Justice, 30 percent  of the referrals from the                                                                    
     Department of  Law, 39 percent  of the  youths detained                                                                    
     in  detention facilities,  and over  40 percent  of the                                                                    
     youth  in   (indisc.)  Division  of   Juvenile  Justice                                                                    
     treatment provisions.                                                                                                      
     And  there's a  lot of  reasons cited  for those  basic                                                                    
     disparities, and  some of those ...  factors leading to                                                                    
     this are:  inadequate  legal representation; police and                                                                    
     prosecutorial   misconduct;   perjured  testimony   and                                                                    
     mistaken    eyewitness   testimony;    suppression   or                                                                    
     misinterpretation  [of] ...  evidence  [and], in  rural                                                                    
     Alaska,  lack of  evidence;  law  enforcement has  been                                                                    
     underfunded  in rural  Alaska;  [Village Public  Safety                                                                    
     Officer  (VPSOs)] have  been ...  underfunded in  rural                                                                    
     Alaska -  as I sit  here today, there's probably  60 to                                                                    
     65 communities that have  absolutely no law enforcement                                                                    
     present whatsoever;  and also ... there's  a tremendous                                                                    
     amount of community pressure to solve cases.                                                                               
3:39:06 PM                                                                                                                    
MS. MORRIS also said:                                                                                                           
     In  addition, there's  already  ...  mistrust ...  [in]                                                                    
     Alaska by  the minority community, not  only the Alaska                                                                    
     Native community,  but I also  know that  the [National                                                                    
     Association  for  the  Advancement  of  Colored  People                                                                    
     (NAACP)]  also   opposes  the  death  penalty   or  the                                                                    
     reinstatement of the  death penalty in Alaska.   And it                                                                    
     will divide  residents of Alaska  versus uniting  us as                                                                    
     citizens.  It's also  against traditional Alaska Native                                                                    
     values and,  [as indicated by]  other people  that have                                                                    
     testified   here  today,   it's   also  against   other                                                                    
     Alaskans' values and belief systems.                                                                                       
     There's already  tremendous mistrust  as it  relates to                                                                    
     Alaska  Natives'  confidence  in the  fairness  of  the                                                                    
     justice  system. ...  I think  it's  important to  know                                                                    
     [that] as an Alaska Native woman,  I am four and a half                                                                    
     times  more  likely  to be  a  homicide  victim,  [and]                                                                    
     African American  women are more likely  to be homicide                                                                    
     [victims] -  we are going to  be the victims -  and yet                                                                    
     we  are the  groups  that oppose  reinstatement of  the                                                                    
     death penalty  because we will  also be those  that are                                                                    
     disparately treated  by the death  penalty.  We  know a                                                                    
     lot of  people here today talked  about accountability,                                                                    
     ... [but]  we need to  hold ourselves accountable.   As                                                                    
     Alaskans,  we can't  simply say  we live  in a  country                                                                    
     that  offers equal  justice, when  racial and  economic                                                                    
     disparities  plague the  system  by  which our  society                                                                    
     imposes the ultimate punishment.                                                                                           
MS. MORRIS, in closing, relayed  that according to a bibliography                                                               
of rural  justice studies  compiled by  the University  of Alaska                                                               
Anchorage   (UAA)  Justice   Center,  there   is  not   even  one                                                               
report/study that  says instituting  the death penalty  in Alaska                                                               
will be a deterrent to  crime; every one of those studies/reports                                                               
says exactly the opposite.  She added:                                                                                          
     We  need  to  spend  more dollars  [on]  ...  treatment                                                                    
     programs, prevention programs,  boys and girls [clubs],                                                                    
     and  those  [kinds]  of programs  that  have  a  proven                                                                    
     record of  preventing crime and deterring  crime in our                                                                    
     communities, and  not [spend] ... limited  resources on                                                                    
     a  program  that  other   states  have  already  proven                                                                    
     doesn't work and doesn't deter crime.                                                                                      
REPRESENTATIVE HOLMES,  remarking that justice is  not colorblind                                                               
in Alaska, asked  whether there are any  statistics regarding the                                                               
types of charges being brought,  for commensurate crimes, against                                                               
Alaska  Natives  versus  other groups  of  people,  or  regarding                                                               
whether the  sentences being handed  out for the crime  of murder                                                               
in first degree are longer for certain groups of people.                                                                        
MS.  MORRIS relayed  that national  statistics  indicate that  55                                                               
percent of  the people  on death row  are African  Americans, and                                                               
there is  no reason, she  opined, to believe that  Alaska Natives                                                               
and African Americans would fair  any better in Alaska should the                                                               
death penalty be reinstituted.                                                                                                  
3:43:35 PM                                                                                                                    
MS. MORRIS,  in response  to another  question, pointed  out that                                                               
the justice system is a human  system and, as such, is subject to                                                               
fallacies;  so  if  an  individual   is  [wrongfully]  serving  a                                                               
sentence  of life  in prison,  [the courts]  have the  ability to                                                               
correct that mistake,  but with the death penalty,  once a person                                                               
is [wrongfully]  executed, the option of  correcting that mistake                                                               
is  no longer  available  - all  that  can be  done  is to  offer                                                               
apologies to that person's family.                                                                                              
MS.  MORRIS,  in response  to  a  further question,  offered  her                                                               
belief  that  there are  economical  biases  [within the  justice                                                               
system].   For example, when  faced with being  incarcerated even                                                               
for  a  misdemeanor  and  deciding   whether  to  accept  a  plea                                                               
agreement, people  consider the  economical factors of  doing so,                                                               
such  as  whether they  have  the  money  to  pay for  a  private                                                               
attorney, and  if the answer is  no, the perception then  is that                                                               
if they are then assigned a  public defender, they will simply be                                                               
getting  what they  paid  for.   Furthermore,  the ANJC  receives                                                               
calls from  people from small,  rural communities  seeking travel                                                               
funds because  they don't have  the economic  resources necessary                                                               
to  go  to trial  in  the  larger  cities  where the  courts  are                                                               
located.   These people  don't have  the financial  resources, or                                                               
anybody to watch  their children, or money for  airfare, or, when                                                               
they are  employed, the ability  to get  time off from  work, and                                                               
there  is no  guarantee that  they  will be  successful in  court                                                               
should they choose to fight the charges against them.                                                                           
REPRESENTATIVE LYNN agreed, but noted  that a person's ability or                                                               
inability to  pay a  lot for  a defense lawyer  would still  be a                                                               
factor  regardless of  the crime  he/she is  charged with  or the                                                               
sentence he/she  faces.   Explaining that he'd  once served  as a                                                               
law  enforcement  officer  in  the   "ghetto  areas"  of  Tucson,                                                               
Arizona, he recalled that most  of the [violent] crimes committed                                                               
by members of a minority were  committed on other members of that                                                               
same  minority.   What  justice  is  afforded those  victims,  he                                                               
queried,  since  it's  the  minorities   who  are  victims  of  a                                                               
preponderance of the crimes committed.                                                                                          
MS. MORRIS  relayed that the  Alaska Federation of  Natives (AFN)                                                               
has  adamantly come  out in  opposition and  has an  affidavit in                                                               
opposition to the  death penalty, and that the NAACP  has a legal                                                               
defense fund  for assisting individuals who've  been sentenced to                                                               
death.  She surmised, therefore,  that minority groups across the                                                               
nation   oppose  the   death   penalty  even   though  they   are                                                               
overrepresented  as  victims  of  crimes  subject  to  the  death                                                               
penalty, because  when the  gallows swing,  there is  no question                                                               
for whom they swing.                                                                                                            
3:47:55 PM                                                                                                                    
ROBERT  C.  BUNDY,  Attorney  at  Law,  Dorsey  &  Whitney,  LLP,                                                               
Counsel,  Alaska  Native  Justice  Center  (ANJC),  relayed  that                                                               
almost  half  of   his  35-year  career  has  been   spent  as  a                                                               
prosecutor;  that  he  was  the district  attorney  in  Nome  and                                                               
covered  many of  the villages  in the  Nome and  Kotzebue areas;                                                               
that he was  the assistant district attorney  and chief assistant                                                               
district attorney  in Anchorage for  a number of years;  and that                                                               
he was the U.S. Attorney for  the District of Alaska for a number                                                               
of years.   He concurred  with the  comments made by  Ms. Morris,                                                               
adding  that  statistics illustrate  that  the  death penalty  is                                                               
imposed  disproportionately  when the  victim  is  white and  the                                                               
perpetrator  isn't.   He  also  relayed that  he  was counsel  of                                                               
record in the U.S. District Court  case and the 9th Circuit Court                                                               
of Appeals case involving defendant  William G. Osborne; the U.S.                                                               
Supreme Court  is scheduled to hear  this case [on 3/2/09]  as it                                                               
pertains to  DNA testing.  In  working on Mr. Osborne's  case, he                                                               
explained,  he worked  closely with  the  Innocence Project,  and                                                               
became interested  in what  it is about  the justice  system that                                                               
would allow for  all the wrongful convictions  seen via Innocence                                                               
Project exonerations.                                                                                                           
MR. BUNDY went on to  explain that Innocence Project exonerations                                                               
pertain  to actual,  factual innocence,  wherein DNA  testing has                                                               
excluded the person as the  perpetrator of the crime after he/she                                                               
has been  convicted.  The testing  of DNA evidence came  into its                                                               
own in  the mid-1990s  with what's known  as the  [y-STR] method,                                                               
and although  this testing method  can eliminate a person  to the                                                               
exclusion  of  everyone  else,  it  can't  absolutely  include  a                                                               
person.  One point to be  gleaned from that DNA exclusion process                                                               
and the  Innocence Project  cases is that  there have  been about                                                               
220 men and  women that have been exonerated,  factually, via the                                                               
use  of  post-conviction  DNA  testing;  17  of  those  had  been                                                               
sentenced to  death and  30 more  had been  sentenced to  life in                                                               
prison without parole in those  states that didn't have the death                                                               
penalty.    Furthermore, 85  percent  of  convictions on  serious                                                               
charges -  rapes, serious  assaults, homicides  - do  not involve                                                               
biological  evidence suitable  for DNA  testing, and  the Federal                                                               
Bureau  of Investigation  (FBI)  has also  indicated  that in  24                                                               
percent the cases  in which it does get DNA  evidence to analyze,                                                               
the person identified as the principal suspect was excluded.                                                                    
MR. BUNDY pointed  out that in rural Alaska  in particular, there                                                               
isn't  the  ability  to  collect   [biological]  evidence  in  an                                                               
appropriate manner because of a  lack of law enforcement presence                                                               
- either  at all or immediately  - or because of  the many things                                                               
that  can happen  during the  evidence-gathering process  between                                                               
the time a  victim is murdered or seriously injured  and the time                                                               
a case gets to trial.   Furthermore, even the crime labs in urban                                                               
areas of  the state  such as  in Anchorage  are overloaded.   The                                                               
experience regarding DNA evidence,  he continued, has pointed out                                                               
a problem  which he referred to  as the "tunnel vision"  of those                                                               
working in  the justice system;  regardless that  law enforcement                                                               
officers/investigators,  judges,  prosecutors,   and  jurors  are                                                               
trying to do  a good job in an honorable  fashion, they are still                                                               
human  beings, and  once they  focus  on a  particular person  as                                                               
being the  guilty party,  it becomes very  difficult for  them to                                                               
then accept evidence  to the contrary.  In case  after case after                                                               
case, the Innocence Project has  shown that even appellate judges                                                               
have said things  along the lines of, "On review  of this record,                                                               
the  evidence of  guilt is  overwhelming."   These  are the  very                                                               
cases that  result in  even the supporters  of the  death penalty                                                               
wanting  assurance that  it will  only  be applied  to the  truly                                                               
guilty.   But  it's  very,  very difficult  to  ensure that,  and                                                               
that's been illustrated,  he said in conclusion,  adding that the                                                               
written  summary  of  his  testimony  cites  an  article  on  the                                                               
psychological phenomenon of tunnel vision.                                                                                      
3:54:18 PM                                                                                                                    
REPRESENTATIVE COGHILL surmised that  tunnel vision increases the                                                               
lack of credibility  in the justice system, and  although a death                                                               
penalty sentence provides strong  incentive for trying to protect                                                               
against tunnel vision, people who've  simply received some of the                                                               
longer sentences available "never get that second look."                                                                        
MR. BUNDY concurred,  reiterating that about 85  percent of cases                                                               
don't have  the kind of  biological evidence that's  suitable for                                                               
DNA testing.   Furthermore, there is  no way to test  against all                                                               
the other forms  of evidence which, when combined,  can result in                                                               
a wrongful  conviction, such as eyewitness  testimony, "jailhouse                                                               
snitches," and microscopic comparisons.                                                                                         
REPRESENTATIVE  COGHILL surmised  that  a lot  of  work is  still                                                               
going  to have  to  be done  to address  the  credibility of  the                                                               
justice  system  and to  move  forward  with post-conviction  DNA                                                               
MR. BUNDY  explained that  [some of  what] contributes  to tunnel                                                               
vision is that  the types of crimes that would  be subject to the                                                               
death  penalty are  generally  the most  heinous  crimes and  are                                                               
[therefore] highly  publicized; so  there is a  tremendous amount                                                               
of pressure  on everybody in  the system  to "solve the  case and                                                               
see  justice  done,"  thus  increasing  the  probability  that  a                                                               
mistake will be  made [and an innocent person  will be executed],                                                               
because no  one wants  to be the  one that delays  the case.   He                                                               
said that  he's been  involved in four  death penalty  cases, and                                                               
characterized them  as the most excruciating  and difficult cases                                                               
he's ever seen, adding that  there is very little satisfaction to                                                               
be obtained from [the death penalty process].                                                                                   
REPRESENTATIVE  HOLMES,  explaining  that  she did  not  mean  to                                                               
impugn anyone's  integrity with her  comment that justice  is not                                                               
colorblind, concurred  with Mr.  Bundy that everyone  involved in                                                               
such cases is a human being and is therefore fallible.                                                                          
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
3:59:29 PM                                                                                                                    
SUE  JOHNSON,  Executive  Director, Alaskans  Against  the  Death                                                               
Penalty,  noted that  she became  involved with  Alaskans Against                                                               
the Death  Penalty when  then Senator  Robin Taylor  introduced a                                                               
death   penalty  bill   [during   the   Twentieth  Alaska   State                                                               
Legislature],  and   that  since   the  introduction  of   HB  9,                                                               
membership  in  Alaskans  Against  the Death  Penalty  has  grown                                                               
exponentially.   The importance of  personal education  about the                                                               
death penalty cannot be overstated,  she remarked, and noted that                                                               
when  she'd first  become involved  with this  issue, she'd  been                                                               
reluctant  to believe  that the  [alleged] unfairness  associated                                                               
with all aspects  of the death penalty was  actually occurring in                                                               
this  country,  and  so  she'd   conducted  her  own  independent                                                               
MS.  JOHNSON said  that in  addition to  reading books,  watching                                                               
films,  and  interviewing   exonerated  people,  law  enforcement                                                               
personnel,  murder  victims'  family  members,  and  others  with                                                               
firsthand  knowledge  of  death-penalty intricacies,  she's  read                                                               
about  governors  in  states  that have  the  death  penalty  who                                                               
continue to be haunted by  the people they've executed and who've                                                               
said that  that was the  absolute worst part  of their job.   She                                                               
said she's  also read about  politicians who've  regretted having                                                               
supported  death penalty  legislation -  especially when  they've                                                               
discovered  that  that  legislation  may  have  resulted  in  the                                                               
execution  of innocent  people.   She  said  she's learned  about                                                               
states that have spent millions  of dollars building death houses                                                               
that were never  used.  She offered her belief  that if the State                                                               
builds a death house here in Alaska,  it won't be used, and if it                                                               
is  used, it  won't  be  for another  20-25  years  and thus  any                                                               
executions that  do occur  will be  the responsibility  of future                                                               
MS.  JOHNSON  relayed  that  after  all  her  research,  she  has                                                               
concluded  that  the  death  penalty is  wrong  for  hundreds  of                                                               
reasons.    Alaskans  Against  the   Death  Penalty,  she  added,                                                               
believes that  the majority of  Alaskans support its side  of the                                                               
issue  and oppose  the death  penalty.   She then  explained that                                                               
she'd had a  friend - the mother of three  [small children] - who                                                               
was murdered  by her friend's  husband, that she sat  through the                                                               
trial  in an  effort to  support her  friend's parents,  and that                                                               
while watching  them go  through the gory  details of  their only                                                               
daughter's murder, she  was very happy that there  wasn't a death                                                               
penalty  in  Alaska because  she  couldn't  bear the  thought  of                                                               
seeing  her friend's  parents go  through all  of the  trials and                                                               
delays  that are  the  norm with  death penalty  cases  - not  to                                                               
mention dealing  with all of  the media exposure a  death penalty                                                               
case can  result in.   In closing, Ms.  Johnson said that  if the                                                               
morality of  this issue is not  enough to persuade anyone  who is                                                               
undecided  on this  issue, then  the cost  issues -  during these                                                               
economic times  - should be;  reliable data illustrates  that the                                                               
State would face far greater  costs in litigating a death penalty                                                               
case  through  the  appellate  levels  than  it  would  face  for                                                               
litigating a sentence of life in prison.                                                                                        
4:04:18 PM                                                                                                                    
ALFRED  McKINLEY,  SR.,  Alaska Native  Brotherhood  (ANB)  Grand                                                               
Camp, noted  that when  Alaska was  a territory,  only minorities                                                               
were being executed - the last  one being an African American who                                                               
was executed by  hanging right here in Juneau -  and that that is                                                               
one of  the reasons  why the  people of  Alaska, not  just Alaska                                                               
Natives,   were  opposed   to  the   death  penalty   -  it   was                                                               
discriminatory.   He then indicated that  discrimination is still                                                               
a problem.   Referring to the case in which  an 11-year-old child                                                               
shot his father and father's  girlfriend, Mr. McKinley questioned                                                               
whether that  child would be  executed [under  HB 9].   The death                                                               
penalty was  abolished in Alaska  because it  was discriminatory,                                                               
he reiterated, and relayed that he'd  spoken to a judge about the                                                               
inordinately  longer  sentences  that  those who  are  not  white                                                               
receive,  and the  judge indicated  that  work is  being done  to                                                               
address that issue.                                                                                                             
MR. McKINLEY, mentioning  that he is a  retired auditor, observed                                                               
that  information in  members' packets  indicates  that the  cost                                                               
associated  with sentencing  a person  to death  will be  greater                                                               
than the cost  of incarcerating that person for 99  years - which                                                               
he  characterized as  more of  a punishment.   In  conclusion, he                                                               
indicated that the  ANB Grand Camp is  against capital punishment                                                               
and has submitted  resolutions to that effect,  and expressed his                                                               
hope that  legislators will make  the right the decision  and not                                                               
allow the death penalty to become law.                                                                                          
[HB 9, Version E, was held over.]                                                                                               

Document Name Date/Time Subjects
HB9 Applicable Court Rules.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Applicable Statutes.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 HJUD Doc. Index.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 CS version E.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Back up.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Letters of Support.Opposition.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Fiscal CTS Appellate.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Fiscal Note-DPS-02-18-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Fiscal Trial Courts.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Letters of Support.Opposition 2.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Letters of Support.Opposition 3.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Letters of Support.Opposition 4.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Sectional version E.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 Sponsor Statement.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9 version R.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9-Fiscal DOA-OPA-2-20-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9-Fiscal DOA-PDA-(page 2)-2-20-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9-Fiscal DOA-PDA-2-20-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9-Fiscal LAW-CRIM-2-20-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
HB9CS Fiscal Note-DHSS-02-19-09.pdf HJUD 2/23/2009 1:00:00 PM
HJUD 2/25/2009 1:00:00 PM
HB 9
PresumptionofInnocence.pdf HJUD 2/25/2009 1:00:00 PM
Support.pdf HJUD 2/25/2009 1:00:00 PM
Support2.pdf HJUD 2/25/2009 1:00:00 PM
Support1.pdf HJUD 2/25/2009 1:00:00 PM
Support3.pdf HJUD 2/25/2009 1:00:00 PM
Support4.pdf HJUD 2/25/2009 1:00:00 PM
Support5.pdf HJUD 2/25/2009 1:00:00 PM
Support6.pdf HJUD 2/25/2009 1:00:00 PM