Legislature(2003 - 2004)
04/28/2004 08:06 AM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG SENATOR GEORGIANNA LINCOLN, sponsor of SB 246, informed members that she distributed to members the previous evening the answers to 17 questions posed by the Chair. In addition, she submitted letters from the Juneau, Anchorage and Fairbanks police departments and the Alaska Association of the Chiefs of Police, all of which endorse SB 246. She noted that various groups nationwide endorsed the federal legislation, entitled the Local Law Enforcement Enhancement Act. She noted that Ms. Carpeneti from the Department of Law was available to answer technical legal questions. SENATOR LINCOLN then asked members to consider an amendment to page 3, line 8: after the word "hatred" insert "AS 11.76.200". She explained, "The purpose of that is when referring to a new category of crime that is motivated by hate that this crime would be charged under that section of our statutes and so it's just a clarifying amendment." CHAIR SEEKINS said he asked for an independent sectional analysis. SENATOR LINCOLN replied: Mr. Chairman - and I didn't misread when you said independent because when I received that two days ago, I was trying to get as much of that information as I could. We did call over to - as independent - I did call over to [Legislative Legal] and [they] said that they were going to try to get that to us before this meeting. We have not received that so I apologize for that. CHAIR SEEKINS suggested "walking" through the bill with Senator Lincoln to understand her intent. [At that point the committee realized that, inadvertently, members never received a sectional analysis that Senator Lincoln's staff thought was distributed. She offered to get copies.] CHAIR SEEKINS asked Senator Lincoln her intent in Section 1. SENATOR LINCOLN explained that Section 1 adds a new section to AS 09.55 that authorizes a civil lawsuit for compensatory and punitive damages against a person who causes physical injury or property damage with the intent to intimidate or harass and authorizes a lawsuit against the parent or legal guardian of a minor for the same if the suit is based on reckless conduct by the parent or legal guardian. It also prohibits lawsuits under this section against the state or its political subdivisions. CHAIR SEEKINS asked if Section 1 will allow a complainant to bring a civil lawsuit. SENATOR LINCOLN affirmed that is correct. CHAIR SEEKINS asked how "harassment" is defined in that regard. SENATOR LINCOLN explained the definitions of "prejudice", "bias", and "hatred" are on page 3 and those are FBI terms from the Department of Justice. MS. ANNE CARPENETI, representing the Criminal Division of the Department of Law, noted the Administration has not taken a position on SB 246. She noted that she would be surprised if the word "harassment" is defined in criminal law and she is not aware of such a definition in civil law. She pointed out that does not mean every term used in civil or criminal law needs to be defined because often the common understanding of terms is used. CHAIR SEEKINS said he was trying to determine what harassment is if a person could be sued for it. SENATOR FRENCH pointed out that with any new provision, there will be some "finding out" as people bring lawsuits with good and bad arguments. He noted that burning a cross in someone's front yard would be a good claim under the statute but hurling a racial epithet at another might not because the defendant must have physically injured the plaintiff or damaged property. He noted the jury would make that determination. CHAIR SEEKINS argued that he would prefer that the 60 legislators define that term. MS. CARPENETI said the statute describes the civil action as discriminatory harassment and then goes on to describe the basis of that action. It does not necessarily use that term in establishing what must be proved. CHAIR SEEKINS asked Ms. Carpeneti to review AS 11.61.120. MS. CARPENETI explained: It establishes the crime of harassment to do these various things like taunt another person or insult them, telephone them repeatedly at inconvenient times, or make an obscene or anonymous telephone call. CHAIR SEEKINS asked, "Under this definition, which we have the crime of harassment, since this definition exists in another part of statute, would that be the likely standard that the court would use?" MS. CARPENETI acknowledged that she is not well versed in civil law, but replied: They might look at that statute and say, well for a crime that's what a person has to prove but I think this is different and the reason I think that is this civil action tells you what discriminatory harassment is against another, and then it says what you have to do - cause physical injury to the individual or damage the property with the intent to intimidate or harass the individual and they would probably look at that. ...Generally, civil lawsuits - judges look to the case law rather than defined terms, like we do in criminal law because in criminal law it's more important that we have a definite term. In civil cases generally, judges and juries make those decisions and they appeal them and courts of appeals look at the basis for the case and then that case is decided and everybody gets to learn from that case and we go on and use the direction from the juries and the judges. So civil lawsuits generally are more - terms tend to be defined more by case law rather than legislative decision. CHAIR SEEKINS asked if a person caused physical injury to an individual or damage to the property of an individual, that would constitute criminal behavior. MS. CARPENETI said it would depend on the circumstances surrounding how that damage was inflicted. If the person had a culpable mental state of intent knowing recklessness or with criminal negligence, there might be a crime involved. CHAIR SEEKINS asked if a person could be guilty of that crime without culpability under the crime of harassment. MS. CARPENETI did not believe so because a person must intend to harass or annoy another person so that would be the culpable mental state the state would have to prove beyond a reasonable doubt. CHAIR SEEKINS asked if they would have to have intent for the civil action. MS. CARPENETI said yes. CHAIR SEEKINS surmised, "So, we already have in statute criminal law that would also allow them to bring civil actions to recover for those damages, if not part of the judgment if they were convicted for restitution, which is normal, is it not now for judges and courts to order restitution for someone who does property damages or individual damages?" MS. CARPENETI noted the Constitution requires that a person be compensated. CHAIR SEEKINS continued, "And we already have a crime of harassment, which would fit into this. If someone did the things that they could sue for under this section, they have, in effect, committed this crime of harassment, have they not?" MS. CARPENETI said she did not know because the crime of harassment is limited to those various acts. She explained, "This civil action is a whole lot broader in terms of how a person could recover." CHAIR SEEKINS said he is trying to find out what this section gives to people that they do not already have under the law. He noted under current law a person could be charged for a crime of harassment and the victim could maintain a civil action against that person if damage occurred. SENATOR LINCOLN replied: I think that Ms. Carpeneti already stated that, Mr. Chairman, that as she read from the laws that are on the books that it is not specific and that when we talk about the discriminatory harassment that has caused physical injury to an individual or damaged property because of the intent to intimidate. This expands what is on the books. It makes it very clear. CHAIR SEEKINS asked how SB 246 will expand that. He then added the crime of harassment is an action with the intent to harass or annoy another person: that person insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response, etcetera. He questioned whether that is a low standard. MS. CARPENETI said crimes must be proved by proof beyond a reasonable doubt while civil actions must be proved by a preponderance of the evidence, very different standards. She suggested, "Maybe I'm just used to what we do for harassment. It's often in a domestic violence context, making phone calls and hanging up, doing various things. Under these circumstances, not necessarily racially related, it's not necessarily related to a particular person and it's a class B misdemeanor, which is a lower [indisc.]." CHAIR SEEKINS responded, "And I guess - I'm saying there on the crime side it happens to anybody regardless of what their status is. I mean it's universal, is that not correct?" SENATOR OGAN said the legislature should probably amend the harassment laws to exclude those of us that sit on this side of the table from the citizens sometimes. SENATOR FRENCH offered, as an example to differentiate between the bill and criminal law, the crime of cross burning. If a black family was preparing to move into a predominantly white neighborhood and found that some neighbors had burned a cross on their lawn the night before, that would not fit the crime of harassment because that action is not likely to provoke an immediate response. However, the property was damaged with the intent to harass because of race. CHAIR SEEKINS asked what the damages would be. SENATOR FRENCH said that would be for the jury to decide. The jury would have to take into consideration whether, for example, there was a chanting crowd outside. He suggested it is hard to analyze those scenarios outside of the factual context. CHAIR SEEKINS questioned why state employees would be exempted, and whether they would be exempted regardless of whether they were working at the time. SENATOR LINCOLN said that was question number 11 and the drafter from Legislative Legal and Research Services responded that a person's remedy would be limited to actions under AS 09.50 and .65 and 42 U.S.C or normal actions under common law or other principles. CHAIR SEEKINS asked if a police officer who burned a cross on a neighbor's yard could not be sued for discriminatory harassment. SENATOR LINCOLN said that was question 15 about the Alaska State Troopers. She read the response, "Alaska's law currently has several provisions that serve to protect law enforcement officers...." She then noted, "And then it talks about which statutes those are under 12.55 and talks about the parallel between the statutes, the hate crime, the police officers, with the protection that is already on the books for them." CHAIR SEEKINS asked if a police officer in uniform could be charged with criminal harassment. MS. CARPENETI believed so. She explained, "What this does is it says that this new statutory cause of action, if it is adopted by the legislature, does not create a statutory cause of action against a law enforcement officer under these circumstances. To the extent that there are other remedies on a civil basis that a person could bring against a person who's a police officer, these provisions would not affect that." CHAIR SEEKINS said if other remedies exist for a police officer, other remedies exist for everyone. SENATOR LINCOLN replied: Mr. Chairman, I don't know how to say this in a different way for you but when you ask about harassment, there is nothing on the books right now that speaks to harassment of this category of folks or damage to property under hate crimes. There is nothing on the books for that and what we are attempting to do, just as with the paintball incident, is that that crime gets elevated to a misdemeanor. You know, the harassment is a class B misdemeanor and it gets elevated to a higher offense so that we send a message out. That's the whole intent of this bill. We send a message out that hate crimes are not going to be tolerated in the state. ...If you read the letters from the police departments who go out and investigate these types of crimes that are supportive of having different penalties for people who go out and knowingly, and I have to say knowingly because it's not just done very lightly... CHAIR SEEKINS interjected to say he is not only talking about hate crimes but also about the civil action that could be brought. Nothing in the bill says the person must have been convicted of a hate crime in order for a civil action to be brought. SENATOR LINCOLN replied, "Well, Mr. Chairman, it says who has caused physical injury to the individual or damage with the intent because of the individual's actual or perceived race, sex, color, creed, physical or mental disability, sexual orientation, ancestry or national origin." CHAIR SEEKINS expressed concern that this would allow someone who has gone to court and is found innocent to also have a civil action brought against him or her, regardless of whether or not that person was charged with the crime. SENATOR FRENCH commented that happens all of the time, possibly because of the difference in the burden of proof. He mentioned the O.J. Simpson case as an example. CHAIR SEEKINS asked why a person who was not convicted of a hate crime should be subject to a discriminatory harassment action for recovery under this process. SENATOR FRENCH expressed confusion about the question but stated that strikes him as the difference between the nature of criminal and civil law. CHAIR SEEKINS commented that during the last election, people destroyed his property by tearing down his campaign signs and that might have constituted a hate crime, but not under that section. He then directed members to section 2. SENATOR LINCOLN said that is the provision of the bill that elevates the crime to the next level of offense by establishing the crime as motivated by prejudice, bias or hatred and was knowingly committed. She pointed out that a class B felony, such as an assault in the second degree, would be a class A felony if motivated by prejudice, bias, or hatred. CHAIR SEEKINS asked Senator Lincoln if she did the sectional analysis herself. SENATOR LINCOLN said she did with help from many people. TAPE 04-55, SIDE A CHAIR SEEKINS asked how the crime is elevated to the next level. SENATOR LINCOLN explained that according to the bill, a crime that is a class A misdemeanor would become a class B misdemeanor. CHAIR SEEKINS expressed confusion and said it appears that there would be two crimes because a person convicted of one crime would be guilty of another. SENATOR FRENCH said there is no way a person would get convicted of one crime and punished for another. The person would be charged with a B felony, which might be a C felony assault motivated by prejudice, bias or hatred. The grand jury would have to return a true bill on that indictment, where the person would be charged with a B felony. CHAIR SEEKINS asked if a person is charged with a B felony and the prosecution believes there was a motivator involved, the person would be charged with one crime, that being the crime of motivation by prejudice. SENATOR FRENCH thought that was correct. MS. CARPENETI explained the difference between the underlying crime and this crime is that the state would have to prove between a reasonable doubt the motivation. CHAIR SEEKINS asked if the person would be considered innocent of the crime if the state could not prove the motivation beyond a reasonable doubt. MS. CARPENETI said that would depend on the circumstances, but the underlying crime would be a necessary part of it so if the jury found that the state did not meet the burden of proof of beyond a reasonable doubt on the motivation, it could return a verdict on the underlying crime alone. SENATOR FRENCH noted, as an example: Frequently, one single death, one single murder death will result in - you know, you'll offer a jury three murder theories in a grand jury and a murder jury and they'll consider all three of those theories and they may find you guilty of all three of those murder theories and then it all collapses into one sentence. And so in this case, I can see you offering a jury on a C felony assault - you're going to offer them a B felony motivated by prejudice and hatred and a C felony on straight assault and the jury will decide whether you've proved beyond a reasonable doubt that it was motivated by prejudice, bias or hatred, and if you didn't, they'll just say - and then they'll decide whether you proved beyond a reasonable doubt that you actually committed the assault. CHAIR SEEKINS asked Mr. Luckhaupt to address the construction of the bill regarding getting to a crime of motivation by prejudice, bias or hatred. MR. JERRY LUCKHAUPT, legislative counsel, Legislative Legal and Research Services, told members as Senator French stated, the person would be charged with the underlying crime but basically, both offenses would have to be charged and merged into one offense, similar to the procedure for crimes like conspiracy or solicitation. The grand jury would also return an indictment for the underlying crime with that specific motivation. The jury would have to find the person guilty of both the underlying crime and of doing it in a particular manner. CHAIR SEEKINS asked about the standard. MR. LUCKHAUPT said the standard of proof would be beyond a reasonable doubt on each and every element. He thought that the mental state is knowingly, rather than intentional. He pointed out that the use of knowingly, which is one step below intentionally, will be fairly problematic because the courts will consider it as an intentional mental state because of the recognition of motivation. MS. CARPENETI said in this context, a culpable mental state of knowingly means the offender knew the person he or she was harming was in one of the protected categories and committed the offense for that reason. She, too, agreed it is very similar to intentional under these circumstances. She assumed the drafters used the word "knowingly" because sometimes "intentionally" applies to the result. MR. LUCKHAUPT said SB 246 was part of a governor's bill two years ago so it was originally drafted by the Department of Law. He was not sure why "knowingly" was chosen but combined with the motivation aspect in the bill, he did not know how the court could apply it other than as an intentional mental state. SENATOR LINCOLN confirmed that SB 246 is the result of a bill that was not enacted by a previous legislature. She noted that she submitted that bill but the Governor and the Department of Law worked on it. CHAIR SEEKINS asked if other methods in existing statute could address Senator Lincoln's intent to elevate the penalty for these crimes. MR. LUCKHAUPT replied: Well, there are. States, as they've gone through dealing with bias crime legislation and they've had to take this approach of either trying to create a new crime or trying to deal with it as a sentencing aspect and so you've had different approaches used...My personal feeling as a drafter is that under the model penal code, our culpable mental states are all things that don't imply values in and of themselves, or they are not - intentional conduct, knowing conduct, reckless conduct or criminally negligent conduct in and of itself isn't morally reprehensible. We don't think that people that act with a particular intention are just bad people. We look to the other elements of that crime to decide whether or not that is reprehensible or not or whether that's accountable or not. Under the model penal code, which Alaska adopted when we redid our penal code back in 1979, it follows that approach that the culpability of someone, their accountability, is determined by their particular mental state when they are committing the crime in terms of were they acting intentionally or were they acting knowing this result could occur or were they disregarding a particular likelihood that some result would occur, even if they hoped that it wouldn't occur. And, equating those to intentional, knowing or reckless, we then provide gradations of penalties based upon that person's culpability, they're accountability for the offense. So someone that intentionally wants to make sure someone ends up dead and they then shoot that person, that person is more culpable, more accountable for the conduct than someone who is shooting over towards that house and knows that someone could get hit by this or I could kill somebody but they aren't really intending to kill someone and so, you know, those are the ways we have traditionally dealt with people's motivation, people's conduct and we haven't brought the value aspect into it. I'm just discussing that to bring up the idea of how our penal code is designed and when we do look at people's particular motivations or things that might be - where we impose our values then upon issues, we've usually done those in the sentencing aspect where we've distinguished between victims or distinguished between certain conduct and we then impose a greater punishment based upon that. For example, if I select a victim because they have certain characteristics and someone else selects a victim because they were paid to hurt this person, both of us that were acting intentionally in regards to that victim or at least knowingly in regards to our conduct and respect to that victim, the crime is the same. There's nothing to distinguish one victim from another except some value specific thing that we put on. There's nothing that makes that victim more morally subject to protection than another victim usually. Now, saying that, we can then distinguish down the road after we've decided this is a particular crime, that this person has a particular mental state. You then decide well, if someone acted with this particular motivation, for example if there's a murder for hire or something like that, a lot of states will penalize murders for hire at a higher level than other murders. We will penalize hate crimes as we do in Alaska law as we do with our aggravating factor for felonies. We allow for increases in punishment based upon that. That doesn't deal with the specific issue Senator Lincoln has in regards to the misdemeanor offenses because we don't have aggravating factors for misdemeanor offenses and that has been a problem with the two instances up in Anchorage in the last three years or four years where the offenses were classified as misdemeanors and, in some cases, the juveniles were dealt with in the juvenile system in a way that most folks found unacceptable. But there are other ways to deal with that. Some of those issues involve things like requiring, if certain aggravating factors are found, you can require a certain increase in sentence. You can require what we've done in the misdemeanor context - we've required minimum jail terms. And also, to deal with the juvenile situation, is you can require that that juvenile not be dealt with in a juvenile system. The legislature has done that in a number of cases where the legislature has found the response of the juvenile to different crimes as unacceptable. SENATOR FRENCH said SB 246 has had two hearings in the Senate Judiciary Committee and the police chiefs of Anchorage, Fairbanks and Juneau are in favor of it so it strikes him that the bill is ready to move on. CHAIR SEEKINS said he has not come to the same conclusion yet. SENATOR FRENCH moved SB 246 to the next committee of referral to allow the next committee to deal with it. He stated that SB 246 has been well presented, documented and backed up by Senator Lincoln. CHAIR SEEKINS said, "I will tell you that the motion isn't ready but I'll let you make the motion because I don't believe so." He asked for a roll call vote. SENATORS FRENCH and ELLIS voted in favor of the motion; CHAIR SEEKINS was opposed. CHAIR SEEKINS announced that the motion failed and that he would carry the bill over to another hearing. He explained that the bill needed three votes in favor to pass out of committee. SENATOR ELLIS disagreed. CHAIR SEEKINS upheld his decision. There being no further discussion, the meeting ended at 10:11 a.m.