02/23/2009 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB9 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 9 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 23, 2009
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 9
"An Act relating to murder; authorizing capital punishment,
classifying murder in the first degree as a capital felony, and
allowing the imposition of the death penalty for certain
murders; establishing sentencing procedures for capital
felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of
Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska
Rules of Appellate Procedure."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 9
SHORT TITLE: CAPITAL PUNISHMENT
SPONSOR(S): REPRESENTATIVE(S) CHENAULT
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) JUD, FIN
02/23/09 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE MIKE CHENAULT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 9.
TOM WRIGHT, Staff
House Majority Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 9 on
behalf of the sponsor, Representative Mike Chenault.
SUSAN S. McLEAN, Acting Deputy Attorney General
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 9.
QUINLAN G. STEINER, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 9.
RACHEL LEVITT, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 9.
RON ADLER, Director/CEO
Alaska Psychiatric Institute (API)
Division of Behavioral Health (DBH)
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 9.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As the drafter, responded to questions
during discussion of HB 9.
PHIL SMITH
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
DOUGLAS MERTZ, Clerk
Alaska Friends Conference
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB 9
and suggested that HB 9 should be rejected.
BILL PELKE, Board Member
Alaskans Against the Death Penalty (AADP);
President
Journey of Hope...From Violence to Healing;
Author
Journey of Hope...From Violence to Healing
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
FRANK W. TURNEY
Fairbanks, Alaska
POSITION STATEMENT: During discussion of HB 9, testified in
support of the death penalty.
DARRELL NELSON
(No address provided)
POSITION STATEMENT: During discussion of HB 9, testified in
opposition to the death penalty.
PETER STANTON
Ketchikan, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
LOREN K. STANTON
Attorney at Law
Ketchikan, Alaska
POSITION STATEMENT: During discussion of HB 9, testified in
opposition to instituting the death penalty.
AMANDA SCOTT
Ketchikan, Alaska
POSITION STATEMENT: During discussion of HB 9, testified in
opposition to the death penalty.
MICHAEL A. LaMAY
Homer, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
TOM LAKOSH
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 9, testified in
opposition to the death penalty.
BARBARA BRINK
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
ACTION NARRATIVE
1:08:54 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Ramras, Lynn,
Gruenberg, Holmes, Dahlstrom, Coghill, and Gatto were present at
the call to order.
HB 9 - CAPITAL PUNISHMENT
1:09:06 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 9, "An Act relating to murder; authorizing
capital punishment, classifying murder in the first degree as a
capital felony, and allowing the imposition of the death penalty
for certain murders; establishing sentencing procedures for
capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska
Rules of Criminal Procedure, and Rules 204, 209, 210, and 212,
Alaska Rules of Appellate Procedure." [Included in members'
packets was a proposed committee substitute (CS) for HB 9,
Version 26-LS0036\E, Luckhaupt, 2/18/09.]
1:14:01 PM
REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, relayed
that the impetus for HB 9 stems from what he views as society's
inability to reform or rehabilitate certain criminals. People
who commit the most monstrous of crimes will not have the
opportunity to reoffend if capital punishment is carried out.
Thirty-six states currently have the death penalty on their
books, whether they use it or not, and while he doesn't believe
the death penalty is a deterrent to crime, he added, he does
believe that it should be an option for the justice system to
brandish against the most heinous, unremorseful criminals in
society. And although the most common argument against capital
punishment is that it might result in the execution of an
innocent person, he is of the belief, he said, that the death
penalty should only be used in cases where there is no question
of guilt or innocence - no one supports innocent people being
put to death for crimes they did not commit. Advances in
technology, however, continue to make it more difficult for
criminals to hide their offenses, and safeguards within HB 9
will help ensure that those who are wrongfully convicted won't
be sentenced to death.
REPRESENTATIVE CHENAULT noted that the Alaska Territorial
Legislature abolished the death penalty in Alaska in 1957, but
offered his belief that it is now time to reexamine the issue,
discuss advancements made in the judicial system, and once again
consider how society can most effectively dispense justice. In
conclusion, he said, "I want this legislation to give Alaskans
the confidence that we have a system of justice that they can
rely on to handle the most heinous members of our society."
1:18:11 PM
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 9, Version 26-LS0036\E, Luckhaupt,
2/18/09, as the work draft. There being no objection, Version E
was before the committee.
1:18:48 PM
TOM WRIGHT, Staff, House Majority Office, Alaska State
Legislature, on behalf of the sponsor, Representative Mike
Chenault, noted that the sectional analysis included in members'
packets pertains to Version E. He offered his understanding
that Sections 1-20 of Version E only make conforming changes
regarding capital felony crimes, whereas Section 21 is the main
portion of the bill, adding a new [Chapter 58] regarding capital
punishment to Title 12. Version E is meant to address concerns
expressed by the Department of Law (DOL) and the drafter, with
the goal being to come up with a bill that provides safeguards
against sentencing a wrongfully convicted person to death.
MR. WRIGHT, referring to Section 21, explained that proposed AS
12.58.010 - under Article 1, Election to Seek Death Penalty -
outlines the procedure by which the attorney general can seek
the death penalty, stipulating that the district attorney shall
provide notice of that election as well as applicable
aggravating factors to the court, the defendant, and his/her
attorney within 120 days of arraignment on the capital felony
indictment or within 120 days of arraignment if the indictment
has been waived. He noted that the original bill authorized the
district attorney to seek the death penalty, and contained a
shorter notice period.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
1:22:29 PM
MR. WRIGHT explained that proposed AS 12.58.020 - under
Article 2, Imposition of Sentence - stipulates that if a
defendant is convicted of a capital felony, the court shall
conduct a separate sentencing proceeding before the jury to
consider imposition of the death penalty, and that aggravating
and mitigating factors may be presented regardless of the
admissibility of evidence under the Alaska Rules of Evidence as
long as the introduction of the evidence is not in violation of
either the U.S. Constitution or the Alaska State Constitution.
After hearing the evidence, the jury shall deliberate and
recommend a sentence that must include a written finding of
whether the jury agrees that at least one aggravating factor
exists beyond a reasonable doubt and outweighs any mitigating
factors existing by a preponderance of the evidence and whether
death is the appropriate sentence for the defendant. He noted
that the original bill provided for two separate juries, but now
the sentencing procedure would occur before the same jury that
determined whether the defendant committed the crime.
MR. WRIGHT explained that proposed AS 12.58.030 - also under
Article 2 - provides that unless the defendant is found by the
court to be mentally retarded as outlined under proposed AS
12.58.060, the court may impose a sentence of death if the jury
recommends it after finding that there is no reasonable doubt
that at least one aggravating factor exists which is not
outweighed by any mitigating factors; a death sentence may not
be imposed if the defendant is found to be mentally retarded.
Furthermore, under proposed AS 12.58.030, when the court enters
a death sentence, the court is to state in writing the jury's
findings of aggravating factors and mitigating factors
considered but found insufficient to outweigh the aggravating
factors. The sentence of death is subject to automatic review
by the Alaska Supreme Court.
MR. WRIGHT explained that proposed AS 12.58.040 and proposed AS
12.58.050 - both under Article 2 - list the aggravating factors
and mitigating factors, respectively, that a jury may consider
when determining whether a sentence of death should be imposed.
Proposed AS 12.58.060 - under Article 2 - stipulates that if a
sentence of death is recommended, the court shall determine
whether the defendant was mentally retarded at the time the
crime was committed, and outlines the procedure for a finding of
mental retardation.
1:25:12 PM
MR. WRIGHT explained that proposed AS 12.58.100 - under Article
3, Sentence Review - provides that the Alaska Supreme Court
shall review a sentence of death within 60 days after imposition
of the sentence, that this time limit may be extended by the
court for good cause, and that this review has priority over all
other cases, and outlines the review process that must be
undertaken by the Alaska Supreme Court. Proposed AS 12.58.110 -
under Article 3 - provides that if the Alaska Supreme Court
upholds the sentence of death, it shall issue a death warrant
that specifies the date of execution, which must be no less than
30 days and no more than 60 days after the date of the warrant,
and that the warrant must be delivered to the commissioner of
the Department of Corrections (DOC).
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
1:26:05 PM
MR. WRIGHT - referring to Article 4, Administration of the Death
Penalty - explained that proposed AS 12.58.200 stipulates that
the procedure of execution shall be established by the
commissioner of the DOC; that proposed AS 12.58.210 stipulates
that after receiving the death warrant, the commissioner of the
DOC shall specify the time and place of execution; that proposed
AS 12.58.220 stipulates that the punishment of death is to be
inflicted by a lethal dose of a substance or substances until
death is pronounced by a licensed physician, and is to be
carried out within a state correctional facility; and that
proposed AS 12.58.230 stipulates that the commissioner of the
DOC is to return the death warrant to the Alaska Supreme Court
specifying the time and place in which the defendant was
executed.
MR. WRIGHT - referring to Article 5, Stay of Execution -
explained that proposed AS 12.58.300 stipulates that if the
commissioner of the DOC has reason to believe that a defendant
sentenced to death has become incompetent to proceed with the
execution or is pregnant, the commissioner shall give written
notice to the court in which the sentence of death was imposed,
the prosecuting attorney, and counsel for the defense, and that
the execution shall be stayed pending further order of the
court. Proposed AS 12.58.310 and proposed AS 12.58.320 - both
under Article 5 - outline, respectively, the procedures
pertaining to an examination into competency and disposition
pending pregnancy. Proposed AS 12.58.900 - under Article 6,
General Provisions - defines the terms "commissioner" and
"department" as they apply to AS 12.58.
MR. WRIGHT indicated that Section 22 proposes to amend AS
22.07.020(a) such that the Alaska Court of Appeals wouldn't have
jurisdiction over prosecutions of capital felonies for which
death sentences are imposed; and that Section 23 proposes to
amend AS 22.07.020(b) such that the Alaska Court of Appeals
wouldn't have jurisdiction over appeals of death sentences.
Section 24 proposes to amend AS 47.12.030(a) such that capital
felony would be added to the list of crimes for which a 16-year-
old may be tried as an adult. Section 25 proposes to amend AS
47.12.100(c) such that capital felony would be added to the list
of crimes for which a minor is rebuttably presumed to not be
amenable to treatment. Section 26 - by amending the uncodified
law of Alaska - provides for indirect court rule amendments to
the Alaska Rules of Criminal Procedure and the Alaska Rules of
Appellate Procedure. Section 27 - by amending the uncodified
law of Alaska - provides for a review by the Alaska Supreme
Court regarding whether a sentence of death is excessive
compared to the penalty imposed in similar cases, and provides
that under that review such a sentence may not be found
excessive based on the fact that a sentence of death has not
previously been authorized as a penalty in Alaska.
1:30:07 PM
REPRESENTATIVE HOLMES questioned the sponsor regarding his use
of the term, "most heinous" in his opening remarks.
REPRESENTATIVE CHENAULT offered the name of serial killer Robert
Hansen as an example, adding that although there are a number of
other offenders whom he feels should be subject to the death
penalty, they wouldn't be under the proposed legislation. In
response to questions, he said that the bill would not apply to
those who commit the crime of sexual abuse of a minor, and that
the bill doesn't contain any reference to deoxyribonucleic acid
(DNA) evidence.
MR. WRIGHT, in response to a question, reiterated his
understanding that the changes being proposed via Sections 1-20
are simply conforming changes.
CHAIR RAMRAS listed other murders the perpetrators of which
might have been subject to the death penalty as proposed by the
bill. He opined that there are just some instances for which
consideration of the death penalty is appropriate.
REPRESENTATIVE COGHILL expressed interest in receiving
statistical information regarding how many people who were
actually innocent were originally found to be guilty of a crime.
Mentioning that he's known family members of murdered people
who've been willing to forgive the perpetrators, and that he
holds similar beliefs, acknowledged that the government has a
different role to play with regard to holding people
accountable.
CHAIR RAMRAS offered his understanding that post-conviction DNA
testing is not required under current statute, and recounted
that recent discussions with various departments have indicated
that having sufficient resources to enforce such a requirement
might be problematic at this time.
1:40:39 PM
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
SUSAN S. McLEAN, Acting Deputy Attorney General, Criminal
Division, Department of Law (DOL), in response to a question,
and after relaying that her normal duties involve supervising
the Office of Special Prosecutions & Appeals as the chief
assistant attorney general, explained that Section 9 proposes to
change the classification of the crime of murder such that it
would be classified as a capital offense.
REPRESENTATIVE HOLMES surmised, then, that under the bill, any
crime that's currently classified as murder in the first degree
could be tried as a capital offense.
MS. McLEAN indicated that that would be the case provided that
there was at least one aggravating factor.
REPRESENTATIVE HOLMES observed that under current statute, a lot
of behavior could warrant a charge of murder in the first
degree.
MS. McLEAN concurred that anything that's defined as murder in
the first degree [except the crime of murder of an unborn child]
could qualify as a capital offense under the bill as it's
currently written.
REPRESENTATIVE COGHILL asked how many people have received the
99-year maximum sentence currently authorized by statute.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
1:45:08 PM
MS. McLEAN, noting that she didn't have those statistics with
her, said that from a practical standpoint, as with every crime,
the prosecution determines at the outset of the case what level
of offense to charge the defendant. Many crimes of murder in
the first degree, for example, are actually charged as murder in
the first degree, but not all of them are.
REPRESENTATIVE COGHILL expressed interest in receiving that
statistical information.
MS. McLEAN mentioned that the DOL's fiscal note offers an
educated estimate of how many cases of murder in the first
degree would actually go forward as capital offense cases under
the bill.
REPRESENTATIVE COGHILL expressed interest in investigating
possible constitutional issues that might arise with the
enactment of a death penalty.
REPRESENTATIVE HOLMES agreed, and offered her concern that a
number of provisions in HB 9 might be unconstitutional. For
example, she said it appears that the bill would allow for the
execution of a 16-year-old, but such would not be allowed by the
U.S. Constitution. She then asked whether there is currently
anything in statute regarding clemency.
MS. McLEAN said the governor would retain the right of granting
clemency.
REPRESENTATIVE HOLMES asked whether it would be possible for
certain cases - such as those involving physical abuse of a
child that results in the death of that child - to fall under
the provisions of the bill.
MS. McLEAN explained that in order for it to do so, that crime -
which would be defined as murder in the first degree - plus an
aggravating factor would have to be proven beyond a reasonable
doubt to a jury. Furthermore, the prosecutor's decision to seek
the death penalty in such a case would have had to have been
made long in advance of the case ever being tried. In response
to a question regarding whether the bill complies with the
ruling in the U.S. Supreme Court case, Blakely v. Washington,
124 S. Ct. 2531 (U.S., 2004), said it does because, since that
decision came out, the existence of aggravating factors for
purposes of sentencing are considered by the same jury
immediately after the trial in which guilt was determined.
1:55:12 PM
QUINLAN G. STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), in response to
questions, said he doesn't have statistics regarding how many
99-year sentences have been handed down, but he did use certain
assumptions when compiling the PDA's fiscal note. Those
assumptions were based on information provided in the DOL's
fiscal note. For approximately seventeen cases of murder in the
first degree, six would be pursued as death penalty cases, and
four out of those six cases would be handled by the PDA - with
the remaining two cases being handled by the Office of Public
Advocacy (OPA); up to 20 new positions would be needed to meet
the challenge of handling those four cases.
REPRESENTATIVE COGHILL questioned whether the PDA would be able
to provide as good a defense compared to what might be provided
by private attorneys.
MR. STEINER said he's not done such a comparison. The fiscal
note he's prepared, he explained, assumes an idealized set of
circumstances and what would be necessary to take four cases,
review them, and prepare, really, only two of those cases for
trial. Furthermore, in an ideal set of circumstances, such
cases would progress quickly and efficiently and nothing in them
would be so unique as to require additional resources. However,
he added, he considers such a scenario to be somewhat unlikely;
the resources estimated in the PDA's fiscal note are really just
meant to get the review process for such cases started, with
specific questions to be answered on a case-by-case basis as
they come up. In response to a question, he clarified that the
fiscal note estimates that 10 new positions will be necessary
the first year, building up to the aforementioned 20 new
positions in following years.
MR. STEINER explained that death penalty cases, due to their
nature, require at least two attorneys, a mitigation specialist,
and an investigator. The PDA's fiscal note accounts for two
trial teams and two appellate teams to review and handle death
penalty cases, and out of the aforementioned 20 new positions, 9
would be attorney positions and the rest would be support staff
positions of various types. In response to a question, he
remarked that it would be hard for him to comment on what crimes
would be considered "heinous," since that term is not currently
defined in the law; he agrees, however, with the DOL, that if a
crime fits within the statute pertaining to the crime of murder
in the first degree and involves an aggravating factor, it could
be charged, pursued, and convicted as a death penalty case.
REPRESENTATIVE HOLMES noted that that statute doesn't require a
mens rea of premeditation or even intent to commit murder.
MR. STEINER said that's correct for some provisions of that
statute. In response to a question, he indicated that the
standard of proving something beyond a reasonable doubt is hard
to define, and that the instructions on that standard are
subject to some litigation. Nonetheless, it is often noted that
proving something beyond a reasonable doubt does not require
that something be proven beyond all doubt. So some doubt can
remain, and the question then becomes whether that doubt is
reasonable. The standard of proving something beyond a
reasonable doubt is the highest standard [in criminal cases].
In response to a comment, he agreed to provide the committee
with the Alaska Criminal Pattern Jury Instructions pertaining to
that standard.
2:02:28 PM
RACHEL LEVITT, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), in response
to questions, relayed that the OPA handles criminal case
defenses via a combination of staff and outside contractors;
that although there are currently 45 attorneys on staff at the
OPA, not all of them handle criminal cases; that the OPA
anticipates that it would receive two capital felony cases per
year; that in order to address those case in the first year, the
OPA would need one trial team composed of two attorneys, an
investigator, a mitigation specialist, and one law office
assistant; that in the second year the OPA anticipates adding
two attorneys to handle the direct appeals of those [first] two
cases; and that in subsequent years the OPA would need an
additional team to handle the post-conviction relief cases
[associated with its capital felony cases].
MS. LEVITT explained that the OPA also anticipates having to
handle nearly all of the post-conviction relief cases.
Currently the OPA contracts with separate private law firms so
as to address potential conflicts of interest. Therefore,
should HB 9 be enacted, the OPA would establish one unit - or
law firm - to handle capital felony cases in the trial stage and
direct appeal stage, and would establish a separate unit - or
law firm - to handle the post-conviction relief cases. One
variable that the OPA will have to contend with, therefore, is
what the cost would be for contracting with outside counsel;
currently the OPA's fiscal note provides information related to
experiences in the federal system and the State of Washington
regarding the number of hours that private attorneys would put
into death penalty cases at the trial level, and the costs
associated with those private attorneys. She pointed out,
though, that in considering such small numbers of possible death
penalty cases, it is difficult to estimate how many such cases
[would have to be handled by outside counsel].
CHAIR RAMRAS surmised that one could ultimately expect a 15
percent growth rate for the OPA [as a result of HB 9 being
enacted].
MS. LEVITT concurred.
REPRESENTATIVE COGHILL asked how many cases of murder in the
first degree the OPA has had to defend.
MS. LEVITT agreed to get that information to the committee.
2:09:19 PM
RON ADLER, Director/CEO, Alaska Psychiatric Institute (API),
Division of Behavioral Health (DBH), Department of Health and
Social Services (DHSS), in response to a question, indicated
that proposed AS 12.58.060 - Finding of mental retardation - has
caused him confusion. He offered his belief that there is a
long-term vision for the API, as the only "24/7" locked facility
under the purview of the DHSS, to become the "catchall" for a
variety of problematic adults. In the long run, though, it
would be prudent to quantify the population that will need to be
institutionalized for life, to have the public discussion
regarding where those who are found to be not competent to face
the death penalty are going to reside; for example, should such
perpetrators be housed in a state psychiatric facility or in a
secure, locked facility - which has yet to be developed.
REPRESENTATIVE COGHILL asked whether proposed AS 12.58.060
accurately defines mental retardation.
MR. ADLER said he would research that point. In response to
another question, he explained that with regard to capital
punishment, the first question to be addressed is whether the
defendant is competent to stand trial - in other words, does the
defendant understand the charges and their consequences. If the
defendant is found to be competent to stand trial, and is then
found to be guilty, he/she will be given another test to
determine whether he/she is competent to face a death penalty.
He indicated that he is not sure how these determinations fit in
with the bill's provisions pertaining to mental retardation. In
response to comments, he explained that most of the time a
mentally ill person can be restored to competency, whereas such
is not the case with mental retardation.
2:17:47 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), in response to a question, and speaking as the
drafter, explained that proposed AS 12.58.060 regarding mental
retardation was inserted to comply with a U.S. Supreme Court
ruling from a few years ago which said that states cannot
execute a mentally retarded person. The issue of mental
retardation, he pointed out, has nothing to do with the issue of
mental competency; they are completely separate issues, and
existing statutes already deal with the issue of mental
competency and with the issues of determining competency both
before and after trial, and the U.S. Supreme Court has also
ruled that states are precluded from executing a person who is
found to be incompetent at the time of execution, and the bill
complies with that ruling.
MR. LUCKHAUPT, with regard to the issue of mental retardation,
predicted that what will occur is that there will be testimony
by experts regarding whether the defendant is at a
"significantly subaverage general intellectual functioning"
level. And even if a person is found to be mentally retarded,
he pointed out, that doesn't mean the person isn't responsible
for the act, it just means that he/she cannot be executed for
committing it; that person can still be convicted of the crime
of murder and still be sentenced to a term of imprisonment in a
correctional facility. Such a person would not need to be
incarcerated in a psychiatric hospital.
CHAIR RAMRAS asked whether the term "mental retardation" is a
legal term of art.
MR. ADLER said he would research that issue.
MR. LUCKHAUPT explained that it's the term the U.S. Supreme
Court used, as does medical literature; again, the language of
proposed AS 12.58.060 was included in the bill in order to
comply with the aforementioned U.S. Supreme Court ruling.
REPRESENTATIVE COGHILL suggested to the sponsor that he research
how the standard outlined in proposed AS 12.58.060 has been
applied in other jurisdictions.
2:22:42 PM
REPRESENTATIVE GRUENBERG noted that under the bill, a person
sentenced to execution would not have the right to appeal that
sentence before the Alaska Court of Appeals. He asked whether
such a provision would be unconstitutional.
MR. LUCKHAUPT said he didn't see that it would be. The language
of that provision is fairly common in those states that have a
death penalty; those states bypass their intermediate court of
appeals - who's decision is not binding upon their supreme court
- and take the issue directly to their state supreme court. In
response to a question, he said he not aware of any instance in
which that issue has been addressed by the U.S. Supreme Court.
In response to another question, he said he doesn't know of any
way to protect an executed defendant from future changes in the
law.
REPRESENTATIVE HOLMES questioned whether HB 9 would allow a 16-
year-old to be executed.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. LUCKHAUPT clarified that a person under the age of 18 cannot
be executed, though the U.S. Supreme Court has not addressed the
issue of whether a person over the age of 18 can be executed for
a crime he/she committed while over the age of 16 but before
he/she turned 18. The DOL, however, is aware that it would not
be able to seek the death penalty for a person who is under the
age of 18; this is basically a jurisdictional limitation that
the DOL is aware of. In response to another question, he
assured the committee that he drafted HB 9 such that it would
comply with all current court decisions. For example, because
the U.S. Supreme Court has recently ruled that a person who does
not cause the death of another person could not be executed, the
bill does not include the crime of sexual abuse of a minor under
the age of 12 as a crime for which the death penalty could be
imposed.
VICE CHAIR DAHLSTROM returned the gavel to Chair Ramras.
2:30:30 PM
PHIL SMITH, after relaying that he is against HB 9, said he can
remember that when the Alaska Territorial Legislature abolished
the death penalty on the eve of statehood, his parents were
thrilled and delighted that that enlightened step had been
taken. He said he would consider it a tragedy to "give
ourselves a birthday present" of what he characterized as the
barbarous imposition of the death penalty. He then recounted a
personal experience in which a recently retired judge once
relayed that he was opposed to the death penalty because he felt
that judges make too many mistakes.
2:33:51 PM
DOUGLAS MERTZ, Clerk, Alaska Friends Conference, after noting
that the Alaska Friends Conference is the statewide organization
of Quaker meetings, said that Quakers believe that life is
sacred and should not be taken by others except for only the
most compelling of reasons such as to save other lives. If
there is a viable way to keep a person in prison for life, then
there is nothing to be gained by killing that person. He then
noted that he once worked as a prosecutor for the attorney
general's office, and has watched carefully the developments in
DNA testing and the work of the Innocence Project, which, he
proffered, has proven beyond any doubt that many, many innocent
people have been convicted and executed or convicted, sentenced
to die, and only released just short of execution. If HB 9
passes, he predicted, the State of Alaska will convict and
execute innocent people, regardless that that number may be kept
to a minimum; that fact alone mandates that HB 9 should be
rejected now.
2:35:54 PM
BILL PELKE, Board Member, Alaskans Against the Death Penalty
(AADP); President, Journey of Hope...From Violence to Healing;
Author, Journey of Hope...From Violence to Healing, after
listing several other organizations to which he belongs,
explained that Journey of Hope...From Violence to Healing is an
organization led by murder-victims' family members who are
opposed to the death penalty in all situations and believe that
the death penalty does nothing to heal them and only continues
the cycle of violence. Since 1976, he relayed, over 130 people
have been sentenced to die for crimes they didn't commit. As
long as the decisions regarding who should be sentenced to death
are being made by human beings, he opined, there will be
mistakes, and when it comes to the death penalty, there is
absolutely no room for mistakes.
MR. PELKE shared that his grandmother was murdered in 1985 by
four teenage girls, and one of the girls was then sentenced to
die. Although he'd originally supported that sentence, he
relayed, he came to believe that his grandmother would have been
appalled by such a sentence, and he knew then that he could no
longer support a sentence of death for the murder of his
grandmother. A lot of people support the death penalty as a way
of achieving revenge, but revenge is never the answer, he
opined; instead, love and compassion for all of humanity is the
answer. In conclusion, he noted that a woman who'd had her 7-
year-old daughter kidnapped and murdered has said, "No amount of
retaliatory deaths will make up for Suzie's murder; to say the
death penalty of one malfunctioning individual will repay the
inestimable value of my little girl is insulting."
MR. PELKE, in response to a question, offered his understanding
that it's generally poor people on death row, and that 80
percent of the victims of those sentenced to death row were
white and people of importance. With regard to the term,
"heinous", he pointed out that having a loved one murdered is a
heinous crime.
2:41:26 PM
FRANK W. TURNEY characterized HB 9 as long overdue, and said he
supports the death penalty. He relayed that he's served time in
prison and afterwards served as a prison advocate, and that of
those killers and pedophiles he became familiar with, many of
them never showed any remorse and never faced the death penalty.
If there is clear evidence before a jury that a crime is heinous
and the standard pertaining to aggravating factors is met, he
opined, then let the jury decide the fate [of the murderer].
With regard to the issue of cost, he suggested that the use of a
firing squad would be cost effective and that volunteers for
such a squad could be easily found. He opined that serving life
sentences or sentences of 99 years is the easy way out for
offenders, particularly those who commit heinous crimes.
MR. TURNEY said given that DNA evidence can be used to exonerate
the innocent and convict killers, he believes that jurors are
capable of determining whether a crime is heinous, and then
meting out the death penalty when the statutory standards for
doing so are satisfied. Some of the people he's served in
prison with, he elaborated, spoke about their crimes over and
over again, relishing the details. He surmised that in Alaska
there are many perpetrators of heinous crimes who've been
allowed to plea bargain the charge down to murder in the second
degree or manslaughter. In conclusion, he expressed
appreciation for the introduction of HB 9, and offered his hope
that any errors in the bill will be found and corrected so that
it can continue to move forward through the process.
2:44:15 PM
DARRELL NELSON said he is against the death penalty for a number
of reasons. By the time a person is arrested [for a capital
offense] and then goes through the appeal process, it can take
20 to 30 years before he/she is actually executed. Furthermore,
the cost of expert testimony regarding whether a perpetrator is
competent to stand trial, as well as the cost of incarcerating
him/her for all that time will be borne by the State. He said
he doesn't see how the State will be saving money by instituting
a death penalty, and predicted that the State will instead be
spending more money than it is now. He said he doesn't see that
the death penalty will be any help at all, and offered his
understanding that in the 1980s, former Senator Jan Faiks and
former Senator Rick Halford were opposed to the death penalty
because of the amount of money that would be spent on it.
2:47:22 PM
PETER STANTON, noting that Article I, Section 1, of the Alaska
State Constitution, says in part, "This constitution is
dedicated to the principles that all persons have a natural
right to life, liberty, the pursuit of happiness ...", he opined
that these natural rights are not forfeit for committing certain
acts, but are instead absolute rights. For the State to
threaten this right to life, he also opined, is an absolute
insult to the ideals embodied in both the U.S. Constitution and
the Alaska State Constitution, and in the minds of enlightened
human beings. In response to a question, he further opined that
to give the State of Alaska, or any government, the right to
take away life is to justify the kind of action that murderers
have taken in the first place; society opposes murder so greatly
because humans have an absolute right to their own lives, and
there is an inherent hypocrisy in giving government the right to
take away lives.
2:49:33 PM
LOREN K. STANTON, Attorney at Law, after relaying that he knows
of several reasons to not institute the death penalty in Alaska,
said he is absolutely opposed to the institution of the death
penalty. He relayed that he is now and has been a trial
attorney for 15 years. Referring to the Innocence Project, he
offered his understanding that there are hundreds of thousands
of pages of evidence illustrating that the death penalty is of
no use - in any way, shape, or form - to society, that the death
penalty has no deterrent value. Institution of the death
penalty would give a weapon to the attorney general's office and
the district attorney's office. What currently happens is that
prosecutors either over charge defendants or threaten to do so
in order to encourage defendants to plead guilty, even to crimes
they haven't committed.
MR. LOREN STANTON predicted that with the adoption of a death
penalty, a prosecutor could threaten to charge someone with a
capital felony and a sentence of death in order to get that
person to instead plead guilty to the crime of second degree
murder and a prison sentence of 40 years, with the result being
that the vast majority of defendants will choose the 40-year
sentence. He recounted that he's had clients who've chosen a
sentence of 5-10 years when threatened with a sentence of 40
years. If HB 9 passes, it will enable prosecutors to force
people to plead guilty to crimes they didn't commit; handing
prosecutors such a weapon is not a good thing, he opined. In
conclusion, he commented on the lack of state funding for
rehabilitation programs.
2:53:32 PM
AMANDA SCOTT said she is very opposed to the death penalty.
Although other states in the Lower 48 do have a death penalty,
she said she doesn't see how it would apply in Alaska, or how
executing someone is anything other than what Hitler did. It is
not the duty of Alaskans to take the lives of other people -
humans make mistakes, and others should not have to pay the
price of those mistakes - nor is it the duty of Alaskans to ask
another person to take the lives of other people. Whoever
becomes the executioner would suffer mental [and emotional]
scarring for the rest of his/her life. In conclusion, remarking
that she doesn't approve of abortion, she cautioned that a woman
who does choose to have an abortion shouldn't have to face the
death penalty because of that choice.
CHAIR RAMRAS turned the gavel over to Vice Chair Dahlstrom.
2:56:34 PM
MICHAEL A. LaMAY said he is against HB 9. Noting that he
operates a small business, opined that it would be bad business
for Alaska to involve itself with capital punishment. He
offered his recollection that in 1995 it was estimated that the
State of Alaska would have to invest $50 million in order to put
in place what he called the "state-sponsored machinery of death"
- $50 million would have to be spent before a single person
would ever be executed. In short, he opined, that would be a
very bad business decision for Alaska. To enact a death penalty
bill would be fiscally irresponsible, given the many unmet needs
already existing statewide. The death penalty does not deter
other murderers, and it discriminates against the poor and
[racial] minorities. "And why would we kill people," he asked,
"to show that killing people is wrong?"
MR. LaMAY pointed out that bills have been introduced in the
states of Nebraska, Colorado, New Mexico, Montana, New
Hampshire, Maryland, Washington, and Kansas to eliminate their
capital punishment statutes. Why would the state of Alaska go
in the wrong direction now? To enact HB 9, he opined, would be
an insult to Alaska's first 50 years of statehood. Not since
territorial days has anyone been "State executed within our
borders, and why would we start now," he asked. Alaska's
courts, with some frequency, already sentence convicted felons
to very long sentences - in some cases without possibility of
parole - thus ensuring the protection Alaska's communities
deserve; don't try to fix something that isn't broken, he
advised. In conclusion, he thanked Senator Gary Stevens and
Representative Paul Seaton for opposing HB 9, and offered his
hope that all other legislators would also follow "the better
angels" of their nature.
MR. LaMAY, in response to a question, remarked that with regard
to capital punishment, if one doesn't have the capital, one
receives the punishment.
3:00:01 PM
TOM LAKOSH said he is opposed to the death penalty for several
reasons, primarily because it is unconstitutional and violates
rights of free speech and due process. He offered his
understanding that under the constitution, the legislative
process requires a fair legislative investigation, but in order
for that to occur in a situation in which the death of Alaskan
citizens would be required, the legislature would first have to
fully investigate all 130 of the aforementioned Innocence
Project cases to ensure that similarly innocent persons would
not be executed under HB 9. The question then inherently
becomes, can the legislature ensure that only the [guilty] will
be put to death. If not, then the legislature is guilty of the
very crime it is attempting to punish, and any legislator who
votes for HB 9 is consciously performing a premeditated act to
kill someone - perhaps even an innocent person - and so would be
subject to the same proposed law.
MR. LAKOSH indicated that the death penalty violates the right
of free speech because the speech of those who were convicted
and sentenced to death but were later found to be innocent after
they were executed could no longer be heard. With regard to
executing someone, he opined that it is inherently wrong, it is
not fair, it is barbaric, and it violates the basic principles
of civility. A person convicted of a crime can instead simply
be incarcerated in such a way as to protect everybody else; for
example, a horrific murderer could be severely isolated. In
conclusion, he offered his belief that there will be a lot of
repercussions [for enacting a death penalty], and that HB 9
needs a lot more work to ensure that innocent people are not
executed, particularly given that the court system is subject to
corruption and given that everyone makes mistakes; the
[judicial] system is not capable of accurately judging whether a
person's life should be taken.
3:04:45 PM
BARBARA BRINK, noting that she was a public defender for the
State of Alaska for 23 years, opined that [instituting] the
death penalty would constitute a terrible practical public-
policy decision. For 9 years, she relayed, her duties with the
State involved administering the PDA's budget and looking at the
big picture of criminal justice in Alaska. In response to a
question posed earlier, she said Alaska does not have a system
of justice that can be relied upon. As others have testified,
she remarked, if the death penalty is instituted in Alaska, the
State will wind up killing innocent people, though not from a
lack of trying, it's just that it's a human system and therefore
a fallible system in all aspects, from eyewitness accounts, to
investigations, to defense work, to prosecutions, to judging -
human beings make mistakes and innocent people have been
convicted, both in Alaska and throughout the country.
MS. BRINK explained that at least 8 wrongfully convicted people
have been executed since 1972, and that 124 death row inmates
have been completely exonerated in 25 different states; nobody
has figured out how to have a perfect system. Last week, the
National Academy of Sciences issued a report indicating that all
of the evidence that the justice system has been relying upon
for the last 30 years to convict people and put them in jail is
suspect: evidence such as fingerprints, blood splatter, bite
mark identification, firearms identification, hair analysis, and
handwriting analysis. The National Academy of Sciences also
found that evidence was routinely handled by poorly trained
technicians who then, in court, exaggerate the accuracy of their
methods. There is a complete lack of independence in the field
of scientific evidence, which has been dominated by law
enforcement, she opined, reiterating that the State will execute
innocent people if a death penalty is instituted.
MS. BRINK said that even though analysis of DNA is considered
"the science of today," DNA evidence is present in less than 10
percent of all violent crimes. Furthermore, who is to say
whether in 10 years, as science increases and technology
improves, that [scientists] won't find something wrong with the
accuracy of DNA evidence, or find something better than DNA
evidence. Trying to prevent an irreversible mistake has
resulted in an expensive and cumbersome system. She said she
does not disagree with the fiscal note estimates put forward by
the PDA and the OPA; however, what should be reemphasized is
that those estimates - which are based on the assumption that
there will only be six to eight death penalty cases per year -
would only address minimal needs and minimal constitutional
requirements. She characterized that assumption as
questionable, and noted that between 2003 and 2008, 170 charges
of murder in the first degree were submitted to the DOL by
prosecutors - in other words, about 35 referrals per year. More
than half such cases will end up proceeding through the legal
system, engendering all of the associated expenses, and only
then will it become known whether someone is not guilty of a
capital offense.
MS. BRINK pointed out that in the states of New Jersey, North
Caroline, Florida, Texas, and California, there have been
independent case assessments performed which illustrate that
[the death penalty] is ridiculously costly. For example, since
1983, the State of New Jersey spent $253 million, over and above
regular costs, to execute just one person, and the State of
California estimates that it is currently spending $137 million
extra a year. In times of economic crisis and falling oil
prices, she advised, Alaskans need to think about whether such
funds would be better spent on public safety, law enforcement,
crime prevention, schools, job training, drug treatment, and
other things that would be of more help to a murder victim's
family such as grief counseling and restitution.
3:09:48 PM
MS. BRINK, in response to a question, pointed out that with any
piece of legislation, a cost:benefit analysis must be conducted
regarding whether changes proposed by the legislation constitute
sound public policy. So with regard to instituting a death
penalty, the legislature must consider what it hopes to
accomplish by doing so, and then balance that with what doing so
will cost in terms of resources. She added:
I have not understood or grasped what it is that we
hope to accomplish - ... certainly a life-without-
parole system could protect [the] safety of the
public. We know that [the death penalty] doesn't
deter crime or homicides, and that those states that
have a death penalty actually have higher first degree
murder rates than those states that don't have a death
penalty. So, I just think cost is one factor, and,
because I was limited to three minutes, I only chose
to talk about innocence and cost, and I think cost is
important - there are other ways that we could spend
this money in a more public-safety-minded way.
REPRESENTATIVE HOLMES relayed that when she was going to school
in Chicago, the then governor of the State of Illinois - a
republican - placed a moratorium on executions because he
realized that there were many innocent people on death row.
[HB 9, Version E, was held over.]
3:12:37 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:12 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB9 Applicable Court Rules.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Applicable Statutes.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 HJUD Doc. Index.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 CS version E.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Back up.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Letters of Support.Opposition.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Fiscal CTS Appellate.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Fiscal Note-DPS-02-18-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Fiscal Trial Courts.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Letters of Support.Opposition 2.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Letters of Support.Opposition 3.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Letters of Support.Opposition 4.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Sectional version E.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 Sponsor Statement.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9 version R.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9-Fiscal DOA-OPA-2-20-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9-Fiscal DOA-PDA-(page 2)-2-20-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9-Fiscal DOA-PDA-2-20-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9-Fiscal LAW-CRIM-2-20-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |
| HB9CS Fiscal Note-DHSS-02-19-09.pdf |
HJUD 2/23/2009 1:00:00 PM HJUD 2/25/2009 1:00:00 PM |
HB 9 |