Legislature(2003 - 2004)

05/07/2004 08:27 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG                                                                    
SENATOR  GEORGIANNA  LINCOLN, sponsor  of  SB  246, asked  to  be                                                               
joined by the legal drafter,  Mr. Luckhaupt. She then pointed out                                                               
that the  latest version of  SB 246 needed  to be adopted  by the                                                               
CHAIR SEEKINS  announced that the  latest draft,  labeled version                                                               
Q, was before  the committee, and that without  objection, it was                                                               
adopted as the work draft before the committee.                                                                                 
SENATOR LINCOLN said she would  not repeat the testimony she gave                                                               
at a previous hearing on SB  246, but would repeat a statement by                                                               
Walt  Monegan, Anchorage  Chief of  Police, who  said when  asked                                                               
about  the  difference  between  rage and  hatred  that  rage  is                                                               
usually  directed  at  an individual  while  hatred  is  directed                                                               
toward  a group.  Mr. Monegan's  point was  that greed  motivates                                                               
most  people  to commit  a  crime;  however, the  primary  motive                                                               
behind a hate crime is to create fear in a group.                                                                               
CHAIR SEEKINS  asked Senator Lincoln  to review the  changes made                                                               
in version Q.                                                                                                                   
SENATOR LINCOLN  said the  major change  was to  the title  - the                                                               
civil aspect was removed because  of the question about the title                                                               
containing a  dual subject. She  asked that Mr.  Luckhaupt review                                                               
the remaining changes.                                                                                                          
MR.  JERRY  LUCKHAUPT,  legislative counsel,  Division  of  Legal                                                               
Services,  told members  that Section  1 of  one of  the previous                                                               
versions  of the  bill was  removed. Section  1 pertained  to the                                                               
civil enforcement  scheme, which provided the  opportunity to sue                                                               
for damages.  That was  removed because  it is  already available                                                               
under other provisions. The major  change was made in Sections 10                                                               
and 11.  A provision was  added to those sections  that describes                                                               
the penalties that juveniles can receive. He explained:                                                                         
     To correspond with the hate  crime or the juvenile that                                                                    
     directs  a   crime  at  a   person  because   of  their                                                                    
     individual  characteristics,   we  provided   the  same                                                                    
     penalty  for  a juvenile  that  directs  a crime  at  a                                                                    
     police  officer,  fire   fighter,  or  other  emergency                                                                    
     responder. That's section 10 and 11.                                                                                       
SENATOR  THERRIAULT asked  Mr. Luckhaupt  if the  hate motivation                                                               
issue  has been  added  to  a list  that  already includes  those                                                               
things or whether a new section was created.                                                                                    
MR.  LUCKHAUPT  replied  that Senator  Lincoln's  bill  contained                                                               
additions  to  the possible  penalties  for  juveniles for  other                                                               
crimes  motivated  by  hate.  He   continued,  "As  part  of  the                                                               
direction I received,  the idea was that we  wanted to correspond                                                               
that, as  was done  previously in  portions of  the bill,  to the                                                               
penalties that are provided for  crimes that are directed against                                                               
law enforcement  or other emergency  responders based  upon their                                                               
duties  and so  we added  in  law enforcement  provisions to  the                                                               
juvenile penalty schemes  and provided the same  penalties as for                                                               
the hate crime as for the law enforcement officers."                                                                            
SENATOR  THERRIAULT asked  if Mr.  Luckhaupt copied  the existing                                                               
language  located  elsewhere  in  the  statutes  for  the  police                                                               
MR.  LUCKHAUPT  said  language   exists  in  statute  for  crimes                                                               
committed  against peace  officers that  heightens penalties  for                                                               
both  class  A  felonies  and  for  misdemeanors.  He  noted  the                                                               
Legislature has  consistently provided heightened  punishment for                                                               
that  crime and  it may  be the  only crime  the Legislature  has                                                               
consistently  provided  greater  presumptive terms  or  mandatory                                                               
minimum sentences for misdemeanors. He explained:                                                                               
     And  so what  we did  because that  was in  statute and                                                                    
     from  the   direction  of  the  Chairman   and  Senator                                                                    
     Lincoln,  we  decided  to in  each  place  where  we're                                                                    
     proposing a greater punishment for  hate crimes, if you                                                                    
     don't  already  impose  a greater  punishment  for  law                                                                    
     enforcement officers, I brought  up the law enforcement                                                                    
     officer  to correspond  to that  and that  was just  in                                                                    
     these few areas that I'm going to highlight.                                                                               
CHAIR SEEKINS said many people  who commented about the bill felt                                                               
that a hate crime should not  be heightened above a similar crime                                                               
against  a police  officer or  an  emergency responder.  However,                                                               
their objections began  to melt if the motivational  level was no                                                               
greater  than   the  existing  language  in   statute  for  peace                                                               
SENATOR  LINCOLN added  that  is  why the  title  was changed  to                                                               
include  an offense  against peace  officers,  fire fighters  and                                                               
emergency responders to correspond to those areas.                                                                              
CHAIR SEEKINS asked Mr. Luckhaupt  if that was covered everywhere                                                               
he could think of in statute.                                                                                                   
MR. LUCKHAUPT said  yes, and that was the point  of the new draft                                                               
version. He said  those areas in which  the heightened punishment                                                               
language  did  not  exist  were raised  to  correspond  with  the                                                               
punishment in Senator Lincoln's  bill. He explained that Sections                                                               
10 and  11 apply  the same penalty  for law  enforcement officers                                                               
and Section  9 allows the  court to  refer a person  with special                                                               
potential  for   rehabilitation  to   a  three-judge   panel  for                                                               
sentencing   purposes.  The   aggravating   factors  for   felony                                                               
sentencing are on page 5, line 21. He explained:                                                                                
     [On line 21] (13) is  the aggravating factor for crimes                                                                
     committed against  cops and emergency  responders, (22)                                                                
     is  the  aggravating  factor  that  exists  in  statute                                                                    
     relating to hate  crimes. So we've added  both of those                                                                    
     into this  list of offenses  where you can't  refer the                                                                    
     case to  a three-judge panel. Working  back from there,                                                                    
     the  rest of  the bill  is  the same  and then  Senator                                                                    
     Lincoln pointed out  to me that Section 13  of the bill                                                                    
     has a requirement that  the diversity tolerance program                                                                    
     that is  a requirement of sentencing  for juveniles, we                                                                    
     put  in  a provision  saying  that  the court  may  not                                                                    
     require  somebody  to  take   that  program  until  the                                                                    
     Department of  Health and Social Services  has actually                                                                    
     developed, implemented,  and designated the  program as                                                                    
     required under  the statute so  it's not something  - a                                                                    
     little Catch  22 for people  that you have to  take the                                                                    
     program  as part  of their  juvenile adjudication  that                                                                    
     doesn't actually exist yet.                                                                                                
SENATOR FRENCH  referred to Section 7  on page 4, line  27, which                                                               
     (k) A defendant is convicted  of a misdemeanor in AS 11                                                                    
     shall be sentenced as                                                                                                      
and moved to delete the word "is".                                                                                              
CHAIR SEEKINS announced that without  objection [Amendment 1] was                                                               
MR. LUCKHAUPT  indicated that law enforcement  officers were also                                                               
added  to Section  7.  The  category of  a  court  being able  to                                                               
classify someone  as a worst  offender applies to the  hate crime                                                               
situation in  paragraph (1) on  line 30,  and it also  applies to                                                               
the  existing  language for  other  penalty  schemes relating  to                                                               
directing  the  offense  at a  police  officer,  firefighter,  or                                                               
emergency responder.  The idea  of a worst  offender is  based on                                                               
the rationale  that the Alaska  courts have developed  over time,                                                               
which allows  the court to  impose a sentence  at the top  end of                                                               
the  range  or  to  the  maximum  offense  if  that  offender  is                                                               
classified as the worst in that class of offender.                                                                              
SENATOR  FRENCH, in  response to  a question  from Senator  Ogan,                                                               
said the  motive of the  person who  attacked a peace  officer is                                                               
not considered. He continued:                                                                                                   
     The officer in the uniform  is sort of protected by the                                                                    
     uniform and  we don't worry  about the mental  state of                                                                    
     the  person   who  assaults  a  police   officer  or  a                                                                    
     paramedic or anybody  else. We just say  that's a worst                                                                    
     offense. You're going  to get a minimum of  60 days and                                                                    
     you're  a worst  offender, which  authorizes a  maximum                                                                    
     sentence if the judge decides to impose it.                                                                                
MR. LUCKHAUPT agreed.                                                                                                           
SENATOR  OGAN  commented  that   he  would  be  more  comfortable                                                               
confining it  to a person who  committed a crime against  a peace                                                               
officer because that person was  a peace officer or paramedic and                                                               
focus on  the intent of the  crime rather than the  commission of                                                               
the crime.                                                                                                                      
CHAIR SEEKINS asked  if this bill will now treat  a crime against                                                               
a  person because  of the  person's race,  etcetera, at  the same                                                               
level of  sentencing and  with aggravators as  a crime  against a                                                               
police officer.                                                                                                                 
MR. LUCKHAUPT said  there is no longer an aggravator  for class B                                                               
and class C  felonies or an increased presumptive  term for first                                                               
offenses directed  against peace officers. Those  were removed by                                                               
the Legislature  three or  four years  ago. He  chose not  to put                                                               
those back in  after the discussion yesterday  because those were                                                               
removed  at  the   request  of  the  peace   officers  and  their                                                               
associations  because   they  felt  they  were   getting  greater                                                               
sentences than  any presumptive  term that  could be  provided in                                                               
statute. Those  are the only two  areas that differ and  that was                                                               
to follow what the Legislature has previously done.                                                                             
CHAIR SEEKINS  asked if there  is now  an aggravator for  class B                                                               
and C felonies, for example a crime based on sexual abuse.                                                                      
MR. LUCKHAUPT  said that  is correct. They  were in  the original                                                               
bill and remain in version Q as Sections 3 and 4.                                                                               
CHAIR SEEKINS asked if that same  rationale would apply to a hate                                                               
crime for a class B or C felony as it would to peace officers.                                                                  
MR. LUCKHAUPT said possibly but  it would depend on the sentences                                                               
judges are giving.  He explained that when  those provisions were                                                               
removed  four  or five  years  ago,  the  thinking was  that  the                                                               
aggravating factors  could be applied  to the sentences  of worst                                                               
offenders. The  Legislature did not  want to  include presumptive                                                               
terms  because judges  were inclined  to  follow the  presumptive                                                               
terms. He  said in  this case,  if there  is the  perception that                                                               
hate  motivated crimes  are not  receiving  an adequate  starting                                                               
point, making a distinction would be beneficial.                                                                                
SENATOR THERRIAULT  asked if this  language is all attached  to a                                                               
motivation that is actually illegal.                                                                                            
MR.  LUCKHAUPT said  anything related  to  civil enforcement  was                                                               
removed so  an action  for damages based  upon a  comment someone                                                               
made would not apply.                                                                                                           
SENATOR THERRIAULT asked if there  would have to be an underlying                                                               
criminal  act with  an aggravator.  He  noted the  bill does  not                                                               
contain any  definition of sexual  orientation. This  version was                                                               
derived from a  Department of Law bill, which  was introduced two                                                               
years ago, and he  is not aware of what the  thinking was on that                                                               
topic. He deferred to Ms. Carpeneti.                                                                                            
CHAIR  SEEKINS  said   that  was  the  one   area  that  remained                                                               
unresolved among  the people  he worked with  to get  support for                                                               
the  bill. He  noted  that  version S  had  been distributed  and                                                               
addresses that topic. He then described version S as follows.                                                                   
      In the first part, Senator Lincoln removed the civil                                                                      
     liability and we've left that alone.                                                                                       
      Secondly, I think we've gotten everything except in                                                                       
     the area of what the offense is - we've removed sexual                                                                     
     orientation to address that question.                                                                                      
SENATOR  ELLIS asked  for the  rationale  behind removing  sexual                                                               
CHAIR SEEKINS  said it was removed  to get support for  the bill.                                                               
He pointed out that sexual  orientation is not mentioned anywhere                                                               
else  in statute  and  he  is not  sure  that  subject should  be                                                               
addressed for the first time in this legislation.                                                                               
SENATOR ELLIS  asked if hate  crimes based on  sexual orientation                                                               
would not be addressed.                                                                                                         
CHAIR  SEEKINS  said sexual  orientation  would  be on  par  with                                                               
anything other than what is addressed in the bill.                                                                              
SENATOR OGAN said  he has heard privately from  pastors that they                                                               
are  worried that  if  they  quote at  a  church service  certain                                                               
passages of  the Bible  that deal  with sexual  orientation, they                                                               
could be charged with some sort of crime.                                                                                       
CHAIR SEEKINS said he would bring  that up for discussion when he                                                               
finished explaining the bill. He continued:                                                                                     
     The next area that I went into was in - speaking again                                                                     
      with some of the people who I've been working with,                                                                       
     they've said  that community service  for a  juvenile -                                                                    
     we yesterday passed a bill  that on a third offense for                                                                    
     driving under  the influence of alcohol  a juvenile had                                                                    
     a 60 to  80 hour community work  service schedule. What                                                                    
     we've suggested  in here  was 60 to  80 hours  [page 6,                                                                    
     subsection  (6)].   We would  just reduce  it from  100                                                                    
     hours flat  to 60 to  80 hours  to give the  judge some                                                                    
     discretion and then farther down,  in paragraph (b), it                                                                    
     states  that   the  court   would  allow   the  minor's                                                                    
     successful  participation  in the  diversity  tolerance                                                                    
     program to count toward the  minimum hours of community                                                                    
     work service. If  they go to the  diversity class, that                                                                    
     counts against their community service time.                                                                               
     And then  finally, at the  very end, I believe  on page                                                                    
     11,  we  just put  ...  a  four-hour sideboard  on  the                                                                    
     length...[page  10,  lines  29  and  30].  The  program                                                                    
     should be  designed to  be completed  in four  hours or                                                                    
     less - that's the only change that we made.                                                                                
SENATOR LINCOLN  asked Chair Seekins  if the  diversity tolerance                                                               
program cannot be more than four hours.                                                                                         
CHAIR SEEKINS said  he was just trying to put  a sideboard on the                                                               
timeframe and would not object to an eight-hour program.                                                                        
SENATOR LINCOLN  explained that  is why she  put language  in the                                                               
bill allowing the department to develop these programs.                                                                         
CHAIR SEEKINS said he was  trying to provide some direction about                                                               
how comprehensive the program should be.                                                                                        
SENATOR LINCOLN did not think four hours was long enough.                                                                       
SENATOR  OGAN  said  he  understands  why  the  sponsor  wants  a                                                               
diversity training program  and that he would like  to think such                                                               
training would have a positive  effect but he doesn't believe the                                                               
prejudices that people are raised  with are likely to change with                                                               
such training.                                                                                                                  
SENATOR  LINCOLN  said  she is  uncomfortable  with  a  four-hour                                                               
program. She was  thinking the time spent in  a tolerance program                                                               
would count toward  the community service hours. She  said she is                                                               
unaware of  any program that  will reach everyone but  was hoping                                                               
the program  would spark  some good  in a  person and  she doubts                                                               
that can be done in a four-hour time period.                                                                                    
CHAIR SEEKINS  said he would  agree to change the  requirement to                                                               
an eight-hour  program. He  said he  trusts the  Legislature more                                                               
than he trusts the bureaucracy to set those limits.                                                                             
SENATOR  LINCOLN  said she  also  does  not  like the  "or  less"                                                               
language  because the  requirement  could  be as  short  as a  30                                                               
minute program.                                                                                                                 
CHAIR  SEEKINS said  he  would  agree to  putting  a minimum  and                                                               
maximum time limit in the bill.                                                                                                 
SENATOR THERRIAULT  said it would  still be up to  the department                                                               
to develop  the program;  the bill only  contains the  upper time                                                               
limit. He did  not think the department would  design a 30-minute                                                               
SENATOR LINCOLN said  she preferred that no time  limit be placed                                                               
in  the bill  and  thinks the  department will  have  to do  some                                                               
research and identify what programs work.                                                                                       
SENATOR FRENCH commented  that he was thinking  the program would                                                               
be designed  to do  some indoctrination one  day, let  the person                                                               
sleep on it  and do more indoctrination the next  day. He felt an                                                               
overnight  reflection might  stimulate greater  understanding and                                                               
was thinking of a 16-hour program.                                                                                              
SENATOR  LINCOLN said  that is  why  she suggested  no less  than                                                               
eight hours.                                                                                                                    
SENATOR  OGAN  felt  the  public   humiliation  suffered  by  the                                                               
perpetrators  of   the  paintball  incident  was   probably  more                                                               
effective in changing behavior than any class.                                                                                  
SENATOR  THERRIAULT  agreed with  Senator  French  that time  for                                                               
reflection  could be  useful but  that could  be provided  with a                                                               
four-hour  program for  two days  each,  and although  he is  not                                                               
suggesting a  specific number of  hours, he  sees the need  for a                                                               
cap. He  thought that to  some extent, public  condemnation keeps                                                               
society on  track. He  said he  was unaware  of version  S, which                                                               
does not  cover sexual orientation.  He questioned how  a 20-year                                                               
old who  dates 15-year  olds would be  considered under  the bill                                                               
and cautioned the need to be careful.                                                                                           
CHAIR SEEKINS said  he did not want to open  that "Pandora's Box"                                                               
and was only  trying to get support for the  bill, which required                                                               
that  topic be  left out.  He then  said he  had no  problem with                                                               
requiring a  two-day program with  a minimum  of six hours  and a                                                               
maximum of 12. He said he  would prefer to use public humiliation                                                               
but does not know how to do that under the law.                                                                                 
SENATOR  THERRIAULT said  he believes  the  Legislature needs  to                                                               
give the agency  that designs the training  program some latitude                                                               
to  put together  a  program that  works and  would  not want  to                                                               
require the agency  to split the training program  over a two-day                                                               
SENATOR FRENCH  suggested putting a cap  at 12 hours so  that the                                                               
program cannot be completed in one day. He then so moved.                                                                       
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               
SENATOR  ELLIS  questioned  whether  the  committee  had  adopted                                                               
version S.                                                                                                                      
CHAIR  SEEKINS clarified  that  it  had not  and  moved to  adopt                                                               
version S as the working version before the committee.                                                                          
SENATOR ELLIS objected and said he  is opposed to the deletion of                                                               
sexual orientation because he believes it  would be easy to get a                                                               
standard definition of sexual orientation.                                                                                      
TAPE 04-68, SIDE A                                                                                                            
SENATOR  ELLIS  maintained  that  to exclude  certain  people  is                                                               
SENATOR  LINCOLN  said that  while  she  appreciates the  Chair's                                                               
effort to pass  the bill out of committee,  sexual orientation is                                                               
a term that has been used  by programs elsewhere for hate crimes.                                                               
In addition,  she has received  letters supporting  the inclusion                                                               
of  sexual  orientation  in  the bill.  She  agreed  that  sexual                                                               
orientation is not defined in statute  at this time but said that                                                               
doesn't mean  it can't be  done. She said  as the sponsor  of the                                                               
bill, she  believes it should remain  in the bill because  it has                                                               
widespread support.                                                                                                             
CHAIR  SEEKINS thanked  Senator Lincoln  but said  a lot  of work                                                               
would have to be done to include  it and with it he could not get                                                               
support for the bill.                                                                                                           
SENATOR  OGAN  said  he  is uncomfortable  with  adopting  a  new                                                               
committee substitute this late in the session.                                                                                  
CHAIR SEEKINS announced an at-ease.                                                                                             
CHAIR SEEKINS asked  for a roll call vote on  the motion to adopt                                                               
version S.   The  motion carried  with Senators  Therriault, Ogan                                                               
and Seekins in favor and Senators Ellis and French opposed.                                                                     
CHAIR  SEEKINS moved  to adopt  Amendment 1,  to remove  the word                                                               
"is"  on  line  24  of  page 4.  Without  objection,  the  motion                                                               
CHAIR SEEKINS moved  to adopt Amendment 2, to  replace the number                                                               
"4" with the  number "12" on page 10, line  30. He then announced                                                               
that without objection, Amendment 2 was adopted.                                                                                
SENATOR LINCOLN  asked if  he intended to  also delete  the words                                                               
"or less".                                                                                                                      
For  the  purpose  of  clarification,   CHAIR  SEEKINS  moved  to                                                               
withdraw Amendment 2. The motion carried with no objection.                                                                     
CHAIR SEEKINS clarified  that Amendment 2 is to  read as follows,                                                               
"to be completed in a maximum of 12 hours."                                                                                     
SENATOR OGAN  raised a point of  order and asked that  the motion                                                               
to adopt Amendment 2 be rescinded.                                                                                              
SENATOR  OGAN   moved  to  rescind  the   committee's  action  on                                                               
Amendment  2.  With no  objection,  Amendment  2 was  before  the                                                               
CHAIR SEEKINS  moved to withdraw Amendment  2. Without objection,                                                               
Amendment 2 was withdrawn.                                                                                                      
CHAIR SEEKINS  moved to adopt  Amendment 3, which  would replace,                                                               
on page 10, line 30, the phrase  "in four hours or less" with "in                                                               
a maximum of 12 hours."                                                                                                         
SENATOR LINCOLN asked if that  means the program must be designed                                                               
to be completed within 12 hours.                                                                                                
CHAIR SEEKINS asked if she wanted  to include a minimum number of                                                               
hours. He then  withdrew Amendment 3 and rephrased it  to say "in                                                               
12 hours." There being no objection, Amendment 3 was adopted.                                                                   
SENATOR FRENCH thanked  committee members for their  hard work on                                                               
this  legislation  and  then  moved CSSB  246(JUD)  to  its  next                                                               
committee of referral with its attached fiscal notes.                                                                           
CHAIR SEEKINS announced that with no objection, CSSB 246(JUD)                                                                   
moved from committee.                                                                                                           

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