Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/25/2011 01:30 PM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SB 11 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
Moved SB 39 Out of Committee
                       SB  11-HATE CRIMES                                                                                   
2:35:15 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 11. He noted that                                                               
public testimony was  taken during the last hearing  and it would                                                               
remain closed.                                                                                                                  
2:35:51 PM                                                                                                                    
SENATOR COGHILL moved Amendment  27-LS0087\A.2. He stated that it                                                               
effectively removes Section 1 from the bill.                                                                                    
     OFFERED IN THE SENATE         BY SENATOR COGHILL                                                                           
          TO: SB 11                                                                                                             
     Page 1, line 5, through page 2, line 7:                                                                                    
          Delete all material.                                                                                                  
     Page 2, line 8:                                                                                                            
          Delete "Sec. 2"                                                                                                     
          Insert "Section 1"                                                                                                  
2:36:23 PM                                                                                                                    
CHAIR FRENCH objected.                                                                                                          
SENATOR COGHILL said  he imagines that the bill  would move along                                                               
but he  wanted to register  his concern about adding  the primary                                                               
crime  motivation  by  prejudice,  bias, or  hatred  to  what  is                                                               
already a  primary crime.  He expressed the  view that  this more                                                               
appropriately belongs in the aggravator section.                                                                                
CHAIR FRENCH maintained his objection.                                                                                          
2:37:51 PM                                                                                                                    
SENATOR PASKVAN said  he doesn't believe that it's  a crime added                                                               
to  a crime;  it's the  same as  the various  treatments for  the                                                               
different categories or classifications of homicide.                                                                            
SENATOR  COGHILL   said  he   understands  that   motivation  has                                                               
different  levels,  but bias,  hatred,  and  prejudice fall  upon                                                               
knowingly and  that has a  whole different sidebar  discussion as                                                               
to the  culpable mental state. It  takes the whole Title  11 into                                                               
account on  the issue. "I  don't know that  I'm ready to  go down                                                               
that road yet," he stated.                                                                                                      
CHAIR  FRENCH said  his view  is that  the amendment  removes the                                                               
significant  portion  of  half  the bill.  He  cited  Article  1,                                                               
Section  3,  of the  Alaska  Constitution  and observed  that  it                                                               
sounds like a command to the legislature to pass this very bill.                                                                
     No person  is to be  denied the enjoyment of  any civil                                                                    
     or political right because of  race, color, creed, sex,                                                                    
     or  national origin.  The  legislature shall  implement                                                                    
     this section.                                                                                                              
Clearly, the constitution holds  these specific rights very high,                                                               
he stated.                                                                                                                      
Point two  is that this  bill is absolutely not  directed against                                                               
speech.  As  long  as  there's a  First  Amendment,  hate  crimes                                                               
legislation will never be used  against people even when they say                                                               
things that others find very  offensive. The best example of this                                                               
is  the  West  Borough  Baptist Church,  which  frequently  holds                                                               
demonstrations  at funerals  of soldiers.  Despite the  fact that                                                               
many  people find  those  demonstrations  deeply offensive,  they                                                               
nevertheless go on  under the protection of  the First Amendment.                                                               
No  preacher in  this nation  will ever  be charged  with a  hate                                                               
crime for  anything he  or she  says from a  pulpit based  on the                                                               
passage of this bill, Senator French stated.                                                                                    
2:42:27 PM                                                                                                                    
CHAIR  FRENCH   pointed  out  that   the  Roman   persecution  of                                                               
Christians  is the  paradigmatic  hate crime;  other examples  of                                                               
hate crimes  include the  Ottoman genocide  of the  Armenians and                                                               
the various  Nazi pogroms. As  a former prosecutor he  knows that                                                               
it's  very difficult  to prove  what's in  someone's mind  and he                                                               
realizes  that  the  vast  majority   of  these  crimes  will  be                                                               
prosecuted  as simple  assaults, not  as hate  crimes. This  bill                                                               
puts  every  person in  a  special  class  so  that if  they  are                                                               
attacked  because of  what they  represent,  it's more  offensive                                                               
than  simply  being attacked.  It  became  a federal  offense  to                                                               
commit  a  hate  crime  in   1994  and  several  years  ago  that                                                               
legislation was  amended to include  gender and  gender identity.                                                               
It's  been  used sparingly,  however,  because  these crimes  are                                                               
difficult to prosecute.                                                                                                         
2:43:55 PM                                                                                                                    
SENATOR COGHILL said  his amendment was intended to  focus on the                                                               
crime issue. The  Alaska Constitution says the  legislature has a                                                               
duty  to implement  law, but  it also  has a  duty to  uphold the                                                               
constitution.  He said  he  continues to  believe  that bias  and                                                               
hatred can be  very subjective so these  prosecutions will become                                                               
exceedingly  difficult   and  probably  will  fall   out  to  the                                                               
aggravator. That's  where they belong.  Every person  should have                                                               
equal  protection under  the law  regardless of  bias, but  under                                                               
this  bill there  will be  a  hunt for  a  new crime  of bias  or                                                               
prejudice  every time  there's  an assault.  Whatever the  mental                                                               
culpable state  or motivation, this  adds a new element  to every                                                               
crime already in Title 11. This  creates an unwise dynamic in the                                                               
law, regardless  of the federal  law. The aggravator is  the best                                                               
route because  you get to determine  if there was something  in a                                                               
particular  crime   that  aggravated   it  so   egregiously  that                                                               
sentencing becomes the  issue. The punishment for  the crime then                                                               
gets to look at either a mitigater or an aggravator.                                                                            
SENATOR COGHILL  said he understands  the debate and  agrees with                                                               
some of it, but this  double-time precedent is something he needs                                                               
to understand further  or at least he is not  willing to agree to                                                               
it at this point.                                                                                                               
2:47:19 PM                                                                                                                    
CHAIR FRENCH  asked the clerk to  call the roll on  the motion to                                                               
adopt amendment 27-LS0087\A.2.                                                                                                  
A roll  call vote was taken.   Senator Coghill voted in  favor of                                                               
Amendment 1 and Senators Wielechowski,  Paskvan, and French voted                                                               
against it. Therefore, Amendment 1 failed by a vote of 1-3.                                                                     
2:47:52 PM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  SB 11 from  committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
2:48:11 PM                                                                                                                    
SENATOR COGHILL objected. He stated  that he believes in equality                                                               
and the  hate crimes discussion  adds specialties to  that, which                                                               
is  unwise. At  this point  he particularly  objects to  it as  a                                                               
primary crime.                                                                                                                  
2:48:33 PM                                                                                                                    
CHAIR  FRENCH said  that when  crimes  are directed  at a  person                                                               
because of  their status  it is more  wrong than  the underlying,                                                               
sometimes  horrific  event.  Hate  crimes  in  the  U.S.  include                                                               
lynching  of African  Americans;  cross burnings  to drive  Black                                                               
families  from  predominately  White neighborhoods;  assaults  on                                                               
White  people  traveling  in predominately  Black  neighborhoods;                                                               
assaults  on  lesbian,  gay, bisexual,  and  transgender  people;                                                               
painting  of  swastikas  on  Jewish  synagogues;  and  xenophobic                                                               
responses to a variety of minority ethnic groups.                                                                               
Painting  a swastika  on  a  Jewish synagogue  could  be seen  as                                                               
simple  criminal mischief  or it  could be  seen as  representing                                                               
something far more  powerful and evil and  worthy of condemnation                                                               
and  punishment. In  the  cases  that a  person's  intent can  be                                                               
measured  and if  that  intent is  more evil  or  wrong than  the                                                               
underlying  crime, it  will be  punished  more severely,  Senator                                                               
French stated.                                                                                                                  
SENATOR  WIELECHOWSKI said  his eyes  were opened  on this  issue                                                               
when he  lived in Japan. He  was regularly stopped by  the police                                                               
and asked for  identification, he was regularly  turned away from                                                               
restaurants, and he  was prohibited from going  to certain public                                                               
places, all  because he didn't  look Japanese. He said  he's glad                                                               
to  live in  a  country  and state  that  doesn't tolerate  that.                                                               
Passing  this  legislation  says this  society  doesn't  tolerate                                                               
discrimination against  people for  the way they  look or  act or                                                               
where they come from.                                                                                                           
SENATOR PASKVAN  said that both  the U.S. and Alaska  are civilly                                                               
diverse societies  and the constitution  says that no  segment of                                                               
these societies should be intimidated by the conduct of others.                                                                 
2:51:37 PM                                                                                                                    
SENATOR COGHILL  said he agrees  with the  constitutional mandate                                                               
but he  fears that  a more refined  definition will  provide more                                                               
tools for  intimidation of  others. He said  he also  agrees that                                                               
the things that are the most  egregious in U.S. history have been                                                               
dealt with  very well,  particularly in  Alaska. He  restated his                                                               
intention to vote against the bill.                                                                                             
2:53:01 PM                                                                                                                    
CHAIR FRENCH  asked the clerk to  call the roll on  the motion to                                                               
move SB 11 from committee.                                                                                                      
A roll call vote was  taken.  Senators Wielechowski, Paskvan, and                                                               
French voted in  favor of moving SB 11 and  Senator Coghill voted                                                               
against  it. Therefore,  SB 11  was  reported out  of the  Senate                                                               
Judiciary Standing Committee by a vote of 3-1.                                                                                  

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