Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/16/2011 01:30 PM Senate JUDICIARY

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Moved SB 58 Out of Committee
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Heard & Held
Heard & Held
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                       SB  11-HATE CRIMES                                                                                   
2:10:55 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 11.                                                                              
THOMAS  OBERMEYER,  staff  to Senator  Davis,  introduced  SB  11                                                               
speaking to the following sponsor statement:                                                                                    
     This   bill  increases   the   sentencing  for   crimes                                                                    
     motivated  prejudice,  bias,  or hatred  based  on  the                                                                    
     victim's race,  sex, color,  creed, physical  or mental                                                                    
     disability,   sexual   orientation,  gender   identity,                                                                    
     ancestry, or  national origin. This new  crime can only                                                                    
     be  committed when  a  person  commits some  underlying                                                                    
     crime and the person  directed the conduct constituting                                                                    
     the  crime at  the  victim  due to  one  of the  listed                                                                    
     characteristics of the victim.  The new crime increases                                                                    
     the classification of the underlying crime one level.                                                                      
     Without creating a  new list of "hate  crimes" under AS                                                                    
     11.76,  new  Sec.  11.76.150  simply  reclassifies  the                                                                    
     level  of  any  crime  up one  notch  if  motivated  by                                                                    
     prejudice, bias, or hatred based  on the victim's race,                                                                    
     sex,  color,  creed,  physical  or  mental  disability,                                                                    
     sexual  orientation,  gender   identity,  ancestry,  or                                                                    
     national  origin. For  example, a  class B  misdemeanor                                                                    
     becomes a  class A misdemeanor;  a class  A misdemeanor                                                                    
     becomes  a C  felony;  a  class C  felony  becomes a  B                                                                    
     felony,   etc.   Such  reclassification,   of   course,                                                                    
     increases    the   penalties    appropriate   to    the                                                                    
     classification in  sentencing under AS 12.55.  The bill                                                                    
     also amends AS  12.55.155(c)(22), an aggravating factor                                                                    
     as   sentencing  for   felonies,   by  adding   "sexual                                                                    
     orientation"  and  "gender  identity" to  the  list  of                                                                    
     protected characteristics.                                                                                                 
     The need  for this  bill is demonstrated  by increasing                                                                    
     reports   of   violence   against   homeless   persons,                                                                    
     minorities, religious  groups, and others  motivated by                                                                    
     prejudice, bias,  and hatred  in Alaska and  across the                                                                    
     country  in   our  highly  diverse   and  multicultural                                                                    
     society. When crimes are  committed because of people's                                                                    
     differences,  the effects  reverberate beyond  a single                                                                    
     victim or group into  an entire community, city, state,                                                                    
     and society  as a whole.  While this bill  alone cannot                                                                    
     eliminate prejudice,  bias, or  hatred, it will  send a                                                                    
     message that Alaskans will not  tolerate hate crimes in                                                                    
     any   form,   and   sentencing   for   them   will   be                                                                    
     substantially increased.                                                                                                   
2:14:09 PM                                                                                                                    
SENATOR MCGUIRE asked if he'd read the February 16, 2011 letter                                                                 
from the ACLU.                                                                                                                  
MR. OBERMEYER  answered yes; Mr.  Mittman was concerned  that the                                                               
language  didn't conform  to the  language in  the federal  bill.                                                               
However, the  drafter indicated that  it would be  unnecessary to                                                               
add the  federal language because  most of this comes  under Rule                                                               
404  relating  to  Character Evidence  Not  Admissible  to  Prove                                                               
Conduct.  Furthermore, it's  understood  by  prosecutors and  has                                                               
worked well in the past.                                                                                                        
SENATOR MCGUIRE said she liked the  idea of using the language in                                                               
the Matthew  Shepard and  James Byrd  Jr. Hate  Crimes Prevention                                                               
Act because  it maintains consistency,  but she was  also looking                                                               
for  a comment  on the  examples  on page  2 of  the letter  that                                                               
delineate  between two  situations  of  offering evidence.  These                                                               
examples  of racism  are repugnant,  but the  right to  speak and                                                               
freely  associate  is protected.  The  ACLU  is saying  that  the                                                               
language  in the  bill  is  overly broad  and  vague and  instead                                                               
suggests the following:                                                                                                         
     In  a prosecution  for an  offense under  this section,                                                                    
     evidence   of  expression   or   associations  of   the                                                                    
     defendant   may  not   be  introduced   as  substantive                                                                    
     evidence  at trial,  unless  the evidence  specifically                                                                    
     relates to that offense.                                                                                                   
     However, nothing in this section affects the rules of                                                                      
     evidence governing the impeachment of a witness.                                                                           
SENATOR MCGUIRE asked Mr. Obermeyer to comment.                                                                                 
2:18:56 PM                                                                                                                    
MR. OBERMEYER reiterated  that Mr. Luckhaupt's view  was that the                                                               
additional language  was unnecessary. Prosecutors deal  with this                                                               
language  on a  daily basis  and  have been  successful with  the                                                               
current definition of aggravation  under AS 12.55.155(c)(22). Mr.                                                               
Luckhaupt believes that  nothing in SB 11 overrides  the rules of                                                               
evidence. He  suggested the committee get  additional information                                                               
from the  drafter and the  Department of Law (DOL)  before making                                                               
any  changes.  SB 11  simply  seeks  to change  the  definitional                                                               
aggravators,  including sexual  orientation and  gender identity,                                                               
without addressing additional associational rights.                                                                             
He  mentioned  the  paint ball  attacks  targeting  Natives  that                                                               
precipitated  the bill  initially and  noted that  Senator French                                                               
indicated  that   proving  motive  can  be   very  difficult  for                                                               
prosecutors, even in the best of circumstances.                                                                                 
CHAIR FRENCH assured  Mr. Obermeyer that the  committee would get                                                               
a good array of advice before  the bill is passed. He then opened                                                               
public testimony.                                                                                                               
2:23:16 PM                                                                                                                    
SLADE MARTIN,  representing himself,  testified in support  of SB
11. He  stated that he became  aware of the bill  while attending                                                               
the Youth  Policy Summit and was  immediately intrigued. Buckling                                                               
down on  the consequences  for committing acts  of hate  based on                                                               
any of the  protected clauses is an amazing idea,  he said. Doing                                                               
so would  send a  message that Alaska  cares about  its residents                                                               
and  their  safety.  Victims  would regain  a  sense  of  safety,                                                               
justice,  and  trust in  the  legal  system. Victims  often  feel                                                               
confused, self-loathing,  alone, and  scared. Sometimes  they are                                                               
suicidal.  Suicide is  a problem  in this  state so  passing this                                                               
bill may  be a step toward  prevention. Everyone is aware  of the                                                               
epidemic  of  teen bullying  based  on  sexual orientation  where                                                               
suicide has been  the unfortunate end result. Mr.  Martin said he                                                               
had  experienced hate  based on  his sexual  orientation and  the                                                               
experiences were  terrifying. As violence becomes  more prevalent                                                               
and  accepted,   he  fears  for  himself,   his  loved-ones,  the                                                               
community, and future generations.                                                                                              
2:25:49 PM                                                                                                                    
SHAYLE HUTCHISON,  Board Member, Alaskans Together  for Equality,                                                               
stated that  passing SB  11 is  a way to  increase the  safety of                                                               
residents and the  sense of justice for  Alaska communities. When                                                               
a  person is  assaulted  he  or she  feels  fear, oppression  and                                                               
trauma, but  when a person is  attacked based on bias  it affects                                                               
an  entire group  of people.  It changes  the dynamics  of how  a                                                               
community functions. It changes how  people act in public places,                                                               
where  they go,  how  they walk  down the  street,  and how  they                                                               
express   themselves.  Apart   from  the   psychological  effect,                                                               
violence that  is based on  bias increases the opportunity  for a                                                               
retaliatory attack  followed by  a counter retaliatory  act. That                                                               
ripple of violence  will continue until there's  a strong message                                                               
that  these   kinds  of  crimes   will  not  be   tolerated.  The                                                               
Legislature  has the  opportunity  to send  a  strong message  by                                                               
passing SB 11.                                                                                                                  
MS.  HUTCHISON  said  she particularly  appreciates  that  sexual                                                               
orientation and gender identity were  added. In Alaska we need to                                                               
send a  message that a  person has  an absolute right  to believe                                                               
what he or she wants to believe  and to hold the values he or she                                                               
wants to hold, but no one has  a right to impose their beliefs or                                                               
values on  another person  using violence,  coercion, oppression,                                                               
or fear.                                                                                                                        
2:29:19 PM                                                                                                                    
NELSON  ANGAPAK,  Senior  Vice President,  Alaska  Federation  of                                                               
Natives,   requested   that   the  AFN   written   statement   be                                                               
incorporated into  the record.  He proposed  a moment  of silence                                                               
and then  stated that  66 years ago  when the  Territorial Senate                                                               
met to discuss equal rights,  many spoke against this and refused                                                               
to recognize that this was  a problem. Elizabeth Peratovich spoke                                                               
to the  issue of  prejudice and injustice  stating, "I  would not                                                               
have expected that  I, who am barely out of  savagery, would have                                                               
to  remind  gentlemen  with  five   thousand  years  of  recorded                                                               
civilization behind them, of our Bill of Rights."                                                                               
MR. ANGAPAK further stated that  the Alaska Federation of Natives                                                               
fully supports elevating the punishment  for hate crimes based on                                                               
race, [ sex, color, creed,  physical or mental disability, sexual                                                               
orientation,  gender  identity,  ancestry, or  national  origin.]                                                               
They  hope  that   elevating  the  penalties  will   serve  as  a                                                               
deterrent. He urged the committee  to report SB 11 from committee                                                               
and speak favorably when it reaches the Senate floor.                                                                           
2:33:50 PM                                                                                                                    
KATE  BURKHART, Executive  Director, Alaska  Mental Health  Board                                                               
(AMHB)and  Advisory  Board  on  Alcoholism  and  Drug  Abuse  and                                                               
Statewide  Suicide Prevention  Council, said  she would  focus on                                                               
why the mental health board supports  SB 11 and the protection it                                                               
affords this unique constituency.  According to the Department of                                                               
Justice (DOJ),  people who have  a disability are 2-3  times more                                                               
likely to be the victim of  a violent crime. Sometimes the attack                                                               
is based  solely on the  disability, which leads AMHB  to believe                                                               
that this additional protection is appropriate.                                                                                 
The DOJ  reports that of the  crimes that are motivated  based on                                                               
hate  toward a  suspect  class, the  crimes  against people  with                                                               
disabilities are  in the minority.  Most hate crimes  occur based                                                               
on  race, faith  affiliation, and  then gender.  However, of  the                                                               
victims who  report being targeted  because of  their disability,                                                               
three-fourths of  the attacks are  because of a mental  health or                                                               
cognitive  disability.  DOJ  also  reports  that  half  of  those                                                               
victims  report  multiple  disabilities,  which  compounds  their                                                               
vulnerability.  The  Alaska  Mental Health  Board  supports  this                                                               
prioritized  protection,   but  it's   also  important   from  an                                                               
education and  policy-making standpoint. The National  Council on                                                               
Disability, the  National Center  for Victims  of Crime,  and the                                                               
Association of  University Centers on Disability  have called for                                                               
increased  public   education  and  policy  changes   to  prevent                                                               
victimization of people with disabilities.  SB 11 goes a long way                                                               
to achieve those goals.                                                                                                         
2:36:46 PM                                                                                                                    
KELLI BURKINSHAW,  Board Member, Alaskans Together  for Equality,                                                               
stated  that as  a  member of  a board  that  advocates for  gay,                                                               
lesbian, bisexual,  and transgender  rights, she  would encourage                                                               
the committee to pass the bill as quickly as possible.                                                                          
2:37:44 PM                                                                                                                    
JEFFERY  MITTMAN,  Executive  Director,  Alaska  Civil  Liberties                                                               
Union (ACLU),  said SB  11 is an  important piece  of legislation                                                               
and the  ACLU is gratified to  see that gender identity  has been                                                               
included.  Statistics  show   that  transgender  individuals  are                                                               
targeted for violence. It's important,  however, to balance these                                                               
protections   with  First   Amendment   rights   of  speech   and                                                               
association. While  the ACLU doesn't support  repugnant speech or                                                               
hateful groups, it  is incumbent on them to protect  the right of                                                               
individuals to say things that are hurtful and hateful.                                                                         
MR. MITTMAN  pointed out that  as currently drafted, the  bill is                                                               
susceptible to a facial challenge.  Without the limiting language                                                               
that  he  suggested  in  the  February 16,  2011  letter  to  the                                                               
committee,  SB 11  could be  construed to  chill First  Amendment                                                               
associational rights.  The limiting  language would not  harm the                                                               
bill  because   it  would   not  limit   the  ability   to  bring                                                               
prosecutions, but it  would make it clear that  the evidence must                                                               
relate  commission of  a crime.  He urged  the committee  to work                                                               
with  DOL, the  sponsor, and  the drafter  to make  the suggested                                                               
SENATOR PASKVAN  asked if  attacks on  homeless people  would fit                                                               
within one of the classifications in the bill.                                                                                  
MR. MITTMAN said  yes to the extent that the  homeless person was                                                               
targeted based on race or a  physical or mental disability. But a                                                               
homeless  person who  was of  a majority  race and  not suffering                                                               
from  a  disability,  potentially  could  be  left  out  of  this                                                               
CHAIR  FRENCH asked  why  the ACLU  was  raising First  Amendment                                                               
issues of associational rights when  they weren't raised when the                                                               
bill was introduced in previous years.                                                                                          
2:41:07 PM                                                                                                                    
MR. MITTMAN replied  they did raise similar issues  when the bill                                                               
was  introduced  last session.  The  ACLU  suggested the  sponsor                                                               
include gender  identity, which has  been accomplished,  but they                                                               
also raised  First Amendment concerns.  He said he  would forward                                                               
that written  testimony. The Matthew  Shepard and James  Byrd Jr.                                                               
Hate  Crimes  Prevention  Act  makes  explicit  that  because  of                                                               
associational  and  free  speech  issues, the  evidence  must  be                                                               
carefully limited.                                                                                                              
SENATOR  WIELECHOWSKI  asked  if  he believes  that  the  current                                                               
statute   is  unconstitutional   because   that  language   isn't                                                               
MR. MITTMAN said  the protections are currently  in AS 12.55.155,                                                               
the  aggravator section.  Potentially,  the  way the  aggravating                                                               
evidence  is introduced  could be  susceptible to  an as  applied                                                               
challenge, but because this bill  creates the crime of motivation                                                               
by prejudice, it raises the concern to a higher level.                                                                          
SENATOR  WIELECHOWSKI noted  that the  statute says  it's against                                                               
the  law  to discriminate  based  on  race  so if  the  suggested                                                               
language were adopted  you couldn't introduce the  fact that some                                                               
was a  member of the  Ku Klux Klan,  for example. I  believe that                                                               
would be  relevant evidence in  a racial discrimination  case, he                                                               
MR.  MITTMAN reviewed  the  current statute  and  opined that  it                                                               
could  potentially allow  introduction  of associational  rights,                                                               
and  that introduction,  on  its  own, is  susceptible  to an  as                                                               
applied  challenge on  First Amendment  grounds.  For example,  a                                                               
defendant would  not be allowed  to state that  he or she  had no                                                               
bias whatsoever and open the door  to evidence that he or she did                                                               
in fact  have bias. The  ACLU believes  that the language  in the                                                               
federal legislation strikes an  appropriate balance. A prosecutor                                                               
would  be allowed  to introduce  necessary evidence  to establish                                                               
the  elements  of  the  crime,  but  not  so  broadly  as  to  be                                                               
susceptible to a constitutional challenge.                                                                                      
CHAIR FRENCH  said it's an  interesting issue that  the committee                                                               
would ponder.                                                                                                                   
2:45:08 PM                                                                                                                    
WANDA GREENE,  President, NAACP Anchorage, stated  that the local                                                               
NAACP,  in line  with the  national  NAACP, supports  SB 11.  She                                                               
noted that  the national NAACP  unanimously supported  passage of                                                               
the Matthew  Shepard and  James Byrd  Jr. Hate  Crimes Prevention                                                               
Act. Part of  the NAACP mission is to ensure  social and economic                                                               
equality  for all  citizens  to achieve  equality  of rights  and                                                               
eliminate race prejudice among citizens  in the community and the                                                               
state. The national  NAACP has backed social issues  such as this                                                               
legislation to  eliminate discrimination where ever  it is found.                                                               
She said she  was pleased to see that  gender identity, ancestry,                                                               
or national origin was added to this legislation.                                                                               
2:47:20 PM                                                                                                                    
CHAIR FRENCH closed public testimony and announced he would hold                                                                
SB 11 in committee.                                                                                                             

Document Name Date/Time Subjects
SB 11 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Support Material.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Sectional Summary 27-LS0087A.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Letters.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 39 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Sectional.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 One Page Summary.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Editorials.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Alaska Poll Results.pdf SJUD 2/16/2011 1:30:00 PM
SB 39