03/23/2009 08:00 AM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB9 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 9 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 23, 2009
8:17 a.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative John Coghill
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Nancy Dahlstrom, Vice Chair
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 & 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
02/23/09 (H) Heard & Held
02/23/09 (H) MINUTE(JUD)
02/25/09 (H) JUD AT 1:00 PM CAPITOL 120
02/25/09 (H) Heard & Held
02/25/09 (H) MINUTE(JUD)
03/02/09 (H) JUD AT 1:00 PM CAPITOL 120
03/02/09 (H) Heard & Held
03/02/09 (H) MINUTE(JUD)
03/23/09 (H) JUD AT 8:00 AM CAPITOL 120
WITNESS REGISTER
ART KOENINGER
Homer, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
AVERIL LERMAN
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
CONNIE JONES, Reverend
St. Mary's Episcopal Church
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
ERIC WOLHFORTH, Chancellor
St. Mary's Episcopal Church
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
JEFFREY A. MITTMAN, Executive Director
American Civil Liberties Union of Alaska (ACLU of Alaska)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
GLENDA KERRY, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 9, relayed that she
is in opposition to the death penalty.
BARBARA BRINK
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
SETH CHURCH
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 9.
SHIRLEY DICKENS
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
BARBARA BACHMEIER
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 9, provided
comments and urged the committee to let HB 9 die.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Provided a comment and responded to
questions during discussion of HB 9.
SUSAN S. McLEAN, Acting Deputy Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 9.
ACTION NARRATIVE
8:17:25 AM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 8:17 a.m. Representatives Ramras,
Gruenberg, Holmes, Coghill, Gatto, and Lynn were present at the
call to order.
HB 9 - CAPITAL PUNISHMENT
8:17:44 AM
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." [Before the committee was
the proposed committee substitute (CS) for HB 9, Version 26-
LS0036\E, Luckhaupt, 2/18/09, which had been adopted as the work
draft on 2/23/09.]
8:19:15 AM
ART KOENINGER indicated that he would be speaking in opposition
to HB 9. Although HB 9 purports to better protect society from
the most heinous of crimes and impart a more perfect justice
while protecting the rights of the innocent, goals he values and
supports, he remarked, HB 9 will do little, he opined, that the
existing system - via a life sentence without the possibility of
parole - doesn't already offer at less expense and with less
harm to society's collective psyche. It is not enough to appear
to be tough on crime, and there are more effective ways to be
smart on crime. Mentioning that he has known murderers and
victims, and their families, he opined that more killing will
not heal the pain of the victim's families, will create more
pain for the perpetrator's families, and will not make people
safer any more than it will bring back the dead. He said he is
familiar with capital punishment and its effects on the
communities in which it is carried out, because his father was a
criminologist who worked for the Texas Department of
Corrections, extensively researched death penalty issues and
published his findings, and grew to oppose the death penalty
when his research illustrated the many glaring racial and class
discrepancies inherent in the application of the death penalty.
MR. KOENINGER noted that even today, the justice system is as
imperfect as the humans administering it. He surmised that the
Alaska Native Justice Center (ANJC) would be able to give
convincing reasons why a death penalty will fall
disproportionately on Alaska Natives. Furthermore, the
irreversibility of capital punishment differentiates it
radically from all other sentences, and future changes in law
will be of no avail to those who will have already been
executed. Other states are beginning to "rescind" State-
sanctioned killing, with New Mexico being the most recent state
to do so. Alaskans have done without the death penalty for
decades, and will eventually rid themselves of this injustice
again should HB 9 pass. No amount of "legal tweaking" or number
of rationalizations can ensure that the innocent won't be
executed. Delegating the responsibility of premeditatedly
killing another human being is an abhorrent burden on State
employees and medical personnel, and asks of the latter that
they violate their oath to do no harm.
MR. KOENINGER, in conclusion, encouraged the committee to table
the bill and instead focus on restorative justice with real
solutions that address the root causes of crime.
8:22:59 AM
AVERIL LERMAN said she opposes HB 9, adding that she is a legal
historian who's spent many years studying the history of the
death penalty in territorial Alaska between 1900 and 1957. Her
research, she relayed, has included extensive documentary review
in archives and libraries, and more than 50 interviews with
people who were present, active, and part of what happened
during the executions that took place in Juneau, in particular,
as well as in other locations. Her research, she said,
illustrates that those communities that used the death penalty
later came to reject it. For example, in Fairbanks, there were
three hangings in the 1920s, but after that decade, not one more
person was hanged, although homicides continued to occur;
consider, it was a town full of young men and liquor - two
factors that when put together resulted in homicides. Juneau,
as well, was a town full of young men, men working in the
fishing industry, and a lot of liquor; there were three hangings
in Juneau between 1939 and 1950, and then no further hangings
until 1957, when the territory's death penalty was abolished,
though homicides in Juneau continued to occur. So why did the
Alaska Territorial Legislature abolish the death penalty in
Alaska, and why did the hangings stop? She ventured that it's
because the reality of the death penalty is very different than
what people think it will be when they enact it.
MS. LERMAN surmised that the people who don't personally
experience all the special things that happen in the death
penalty process often think that capital punishment is a good
thing, that it will help reduce violent crime, that it
represents justice, and that maybe it's somewhat fair to take a
life for a life - after all, doesn't the bible speak to that
issue? That's what she used to think, she relayed, before she
got close enough to the death penalty "to actually get a good
smell of it." Others who live with the death penalty system in
their community start to change their minds after being exposed
to it for a while. In territorial Alaska, it was ten years per
town. Some people change their minds about the death penalty
when they see that it's only the poor who are put to death.
Rich men didn't hang in territorial Alaska; everyone who was
executed in Alaska was completely poor, though there were many
murders committed by men of means, many of whom were actually
pardoned.
MS. LERMAN said some people change their minds about supporting
the death penalty when they see that it is nonwhite people and
ethnic minorities who are much more likely to be on death row
than white people are. In territorial Alaska, 75 percent of all
murders were committed by white men, but the only people hanged
after 1904 were either African American, Alaska Native, or, in
one case, an immigrant from Montenegro who was referred to as a
"bohunk" and a "black fella" in the newspaper. In the three
Fairbanks hangings, one was the Montenegrin and two were Alaska
Natives; in the three Juneau hangings, one was "Indian" and two
were African Americans. Some people change their minds about
the death penalty when they see that although it's intended for
the most heinous of murderers, that's not who actually ends up
dangling from the rope. For example, in Fairbanks in 1929, a
young Alaska Native named Constantine Beaver was sentenced to
die for killing his good buddy during a drunken brawl. Beaver
loved his friend and was overwhelmed with remorse for what he'd
done, and U.S. Deputy Frank T. Young described hanging Beaver as
"the saddest affair I've had to witness," and resigned shortly
thereafter; Beaver was the last person to be hanged in
Fairbanks.
MS. LERMAN said that this pattern continued elsewhere as well.
For example, she's spoken to a number of people who'd been
drafted into participating in the hangings in Juneau, and 50
years later, their anger, bitterness, and resentment at having
to recall those hangings was evident. With regard to the hurt
that's inflicted on the people who've become involved with the
death penalty, she noted that the wife of one of the city
patrolman who'd been pulled into the Juneau death chamber to
help hang Eugene LaMoore asked during her interview, "Doesn't
anybody think about the people who have to do these things?"
Some people change their minds about the death penalty when they
see what participating in the process does to people. One of
the other officers at that hanging, when asked whether Mr.
LaMoore was shaking on his way to the gallows, responded, with
great resentment, "Not any more than the rest of us," Ms. Lerman
relayed, and surmised that such resentment and hurt feelings are
common amongst people who get close to the death penalty.
MS. LERMAN noted that one person who changed his mind about the
death penalty was U.S. Supreme Court Justice Harry A. Blackmun,
who tried hard to make the death penalty constitutional and
didn't have any opposition to it, but who eventually said in
part [in Callins v. Collins]:
Twenty years have passed since this Court declared
that the death penalty must be imposed fairly, and
with reasonable consistency, or not at all, ... and,
despite the effort of the States and courts to devise
legal formulas and procedural rules to meet this
daunting challenge, the death penalty remains fraught
with arbitrariness, discrimination, caprice, and
mistake. ... From this day forward, I no longer shall
tinker with the machinery of death. For more than 20
years I have endeavored ... to develop procedural and
substantive rules that would lend more than the mere
appearance of fairness to the death penalty endeavor.
Rather than continue to coddle the Court's delusion
that the desired level of fairness has been achieved
..., I feel morally and intellectually obligated
simply to concede that the death penalty experiment
has failed. It is virtually self evident to me now
that no combination of procedural rules or substantive
regulations ever can save the death penalty from its
inherent constitutional deficiencies.
MS. LERMAN, in conclusion, surmised that this same decision had
been reached by the Alaska Territorial Legislature in 1957, and
characterized [the abolishment of Alaska's death penalty] as a
good decision that shouldn't be changed.
8:31:09 AM
CONNIE JONES, Reverend, St. Mary's Episcopal Church, said she is
strongly opposed to HB 9, and that her church, since its
inception in 1958, has gone on record four different times -
1958, 1969, 1979, and 1991 - as being opposed to the death
penalty. The Episcopal Church opposes the death penalty for
theological reasons - that being that the life of an individual
is of infinite worth in the sight of almighty god, and the
taking of such a human life falls within the providence of
almighty god and not within the right of man - she relayed, and
indicated that she also opposes it because of its
disproportionate effect on minorities, its cost, and the fact
that if a person lives in certain areas of the country, he/she
is more likely to be executed than if he/she lives somewhere
else. At the end of the church's resolutions regarding the
death penalty, the general convention calls upon all dioceses
and members to work actively to abolish the death penalty in
their states. In conclusion, she said that as long as she is
able to breathe a breath on this earth, she would oppose the
death penalty regardless of what amendments are made to any
legislation [pertaining to it].
8:35:00 AM
ERIC WOLHFORTH, Chancellor, St. Mary's Episcopal Church, noted
that New Jersey had the death penalty for 23 years, but recently
repealed it; during those 23 years, there were 228 capital
murder trials, only 60 convictions, and no actual exercise of
the death penalty. New Jersey lawmakers amended the state's
death penalty 42 times in an attempt to conform it to the
state's constitution, and the state spent an average of $4.2
million on each of the aforementioned 60 convictions.
Ultimately, New Jersey repealed its death penalty on the grounds
that it simply did not work. He pointed out that other states
are taking the same steps; for example, the governor of New
Mexico signed the repeal of that state's death penalty just last
week. The modern view, he surmised, indicates that a death
penalty would be an impractical approach for Alaska to take. In
conclusion, he suggested to members that they consider New
Jersey's experience.
8:38:39 AM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska) - after mentioning that the
ACLU of Alaska is a nonpartisan organization that seeks to
protect the rights of all Alaskans as guaranteed by the U.S.
Constitution and the Alaska State Constitution, and seeks to
preserve and expand civil liberties - relayed that the ACLU of
Alaska strongly opposes HB 9, adding that the death penalty is
the ultimate denial of civil liberties. Referring to Callins v.
Collins, he noted that Justice Blackmun also said in part, "the
inevitability of factual, legal, and moral error gives us a
system that we know must wrongly kill some defendants".
MR. MITTMAN remarked that state commissions looking at factual
data have found that capital punishment is absolutely linked to
race and socioeconomic status. In December of 2008, the
Maryland Commission on Capital Punishment, in its final report
to the General Assembly, found that racial disparities existed
in Maryland's capital sentencing system, and, that while there
was no evidence of purposeful discrimination, the statistics
examined from death penalty cases demonstrated racial
disparities when the factors of the race of the defendant and
the race of the victim are combined. Also in 2008, the
California Commission on the Fair Administration of Justice
found that overall, controlling for all other predictor
variables, all those who kill African Americans, regardless of
the ethnicity or race of the perpetrator, are 59.3 percent less
likely to be sentenced to death than those who kill non-Hispanic
whites.
MR. MITTMAN relayed that data gathered from around the country
illustrate that defendants charged with killing victims high in
socioeconomic status face a significantly higher risk of
execution. The death penalty's historic racial and
socioeconomic bias persists despite the best efforts of
legislatures and judges to erect fair and equitable capital
punishment procedures. With regard to how such information is
pertinent to Alaska, he pointed out that in 2007, the U.S.
Census Bureau estimated that Alaska Natives comprise 15.2
percent of the population, whereas the 2008 offender profile
compiled by the Alaska Department of Corrections (DOC)
illustrates that Alaska Natives comprise 35.8 percent of the
offenders in institutions; in other words, the Alaska Native
community is "more than twice overrepresented in the criminal
justice system." People must acknowledge that the death penalty
will, inevitably, be disproportionately applied against the
state's Alaska Native population, and that such a result is
unacceptable, he opined.
MR. MITTMAN questioned why, during this time of fiscal
limitations, when resources could be used for more law
enforcement officers, victims' services, education, and crime
prevention programs, the legislature is debating committing
resources to a system that's proven to have failed. Alaskans
are unique and choose their own special paths, but can still
learn from the experiences of New Jersey, Maryland, New Mexico,
Montana, and Colorado. He noted that Reverend Carol J. Pickett,
a witness to 95 executions in Texas, has pointed out that the
death penalty is also extremely hazardous and hard on
correctional system employees, who are negatively affected by
having to participate in executions. In conclusion, Mr. Mittman
asked members to vote "do not pass" on HB 9, and instead turn
their attention to those matters that will benefit Alaskans.
8:43:12 AM
MR. MITTMAN, in response to a question, surmised that both race
and a lack of financial resources are factors in the
disproportionate number of minorities being sentenced to death.
Studies indicate that at every point in the judicial system,
factors of race - not necessarily via intentional discrimination
or via a systemic problem - enter into the equation. For
example: compared to a white person, a person of color is more
likely to be stopped and to receive initial police contact, and
following that first contact, a person of color is more likely
to have his/her person or vehicle searched, and following that
search, a person of color is more likely to experience negative
consequences in terms of sentencing and involvement in the
justice system. Furthermore, factors of race can play a part in
a person's socioeconomic status, which in turn can play a part
in a person's ability to hire competent counsel. Both race and
socioeconomic status must be recognized as factors, and
underscore the fact that the justice system doesn't treat
individuals fairly with regard to such an important decision [as
whether to sentence someone to death].
MR. MITTMAN, in response to another question, relayed that the
ACLU of Alaska's web site has additional information on this
topic, and indicated that the [American Civil Liberties Union
(ACLU)] has a death penalty project that has conducted research
across the country. In response to further questions, he
mentioned aspects and focuses of the ACLU of Alaska and the
ACLU.
8:47:47 AM
CHAIR RAMRAS relayed that a forthcoming amendment would require
that the death penalty could not be sought unless there was
biological evidence or deoxyribonucleic acid (DNA) evidence
linking the defendant to the murder, or a videotaped voluntary
confession by the defendant to the murder, or a video recording
conclusively linking the defendant to the murder. He
characterized such items as irrefutable evidence.
MR. MITTMAN, on the issue of videotaped confessions, explained
that he knows of a case - the name of which he would be
providing the committee - involving a person who submitted a
signed, written confession that was absolutely false, and so
that person was exonerated and is no longer on death row. The
idea of "irrefutable evidence," he opined, is a legal fiction;
again, as Justice Blackmun stated, "no combination of procedural
rules or substantive regulations ever can save the death penalty
from its inherent constitutional deficiencies". Regardless that
an appropriate constitutional balance is being sought via the
forthcoming amendment, it is an impossibility. For example,
eyewitness testimony has been accepted by juries as being the
most reliable "irrefutable evidence," but there is now factual
proof that eyewitness testimony can be wrong. Moreover, the
fact that there are instances in which someone confesses to
murder but his/her confession is then found to be factually
incorrect when the real killer is discovered shows that such so-
called irrefutable evidence does not constitute a reliable
standard. In addition, he pointed out, DNA evidence can be
exclusionary but not inclusionary. Referring to the
aforementioned forthcoming amendment, he characterized it as a
stool the legs of which are not solid enough to support the
concept of true irrefutable evidence.
MR. MITTMAN, in response to a question regarding what impact he
thinks a severability clause would have on HB 9, remarked:
The unconstitutionality of the death penalty rests on
many issues that [have] ... to do with its
application, that [have] ... to do with the standard
of proof, [that have] ... to do with the ability to
apply it fairly. There are many issues that challenge
the constitutionality of the idea of the death
penalty, the idea of capital punishment, so that I
don't think that a severability clause or lack thereof
would be a primary reason for challenging. The
concern is that there are so many issues that raise
problems: the way it's improperly applied, the way
that the standards are incorrect, the way that the
appeals process can or cannot be followed through
with. So generally, the unconstitutionality really is
to the principal of the system.
8:54:42 AM
REPRESENTATIVE GRUENBERG questioned whether the term "biological
evidence" as used in the aforementioned forthcoming amendment
could include a blood test that doesn't rise to the level of a
DNA sample test, and whether such could potentially link a
defendant to a murder.
MR. MITTMAN said that with regard to biological evidence and DNA
evidence, it's important to remember the concept of
"inclusionary versus exclusionary evidence." For example, there
can be DNA evidence that proves the defendant could not have
been the person involved who left the biological sample, but in
many cases, there isn't any biological evidence, so there
wouldn't be any opportunity to exculpate a person who could be
innocent. The ACLU of Alaska sees the inclusion of such
language as an effort to find some way to create rules,
regulations, or procedures that protect the capital punishment
system from its unconstitutional infirmities. He too pointed
out that Justice Blackmun has noted that many states have
attempted to create such rules and regulations but have always
failed.
8:56:11 AM
GLENDA KERRY, Attorney at Law, said she is opposed to the death
penalty based on a position of personal responsibility and
accountability for one's actions. She personally is not willing
to take the life of another person, she relayed, and offered her
belief that anyone who supports the death penalty needs to be
willing to personally snuff out the life of another person. She
surmised that when it comes down to the details of putting
someone to death, a lot of people wouldn't themselves be willing
to take that action, and would therefore be opposed to the death
penalty based on their unwillingness to do the dirty work. She
offered her understanding that there is a movement amongst
physicians to declare that it is against their ethical code to
kill and so therefore they won't execute anyone. She said that
based on her experience, the criminal justice system is not
state of the art and is fraught with errors; therefore, if the
death penalty is passed in Alaska, it will be imposed on
minorities but not on those of equally culpable conduct who
happened to be white, middleclass.
MS. KERRY, in response to a question, relayed that she has had a
couple of clients whom she strongly doubted were guilty of the
crimes they were charged with. There are a lot of instances
involving false confessions, which occur for a variety of
reasons, she remarked. Furthermore, some types of people are
more likely to make false confessions, such as those who are not
confident in engaging with law enforcement officers, those who
are more timid in their interactions; such people can be led -
even unintentionally - into making a confession. Such leading
can occur when police are just trying to do their job and figure
out what happened, but it creates a situation in which they
reach the wrong conclusion. Such situations do occur in Alaska,
she noted.
MS. KERRY, in response to a question, said she'd once had a
client who was mentally ill and who confessed to a homicide
after being involuntarily medicated by the State.
REPRESENTATIVE GRUENBERG mentioned that there is also a
forthcoming amendment that would require what he termed
"reciprocal discovery" during the penalty phase of a capital
felony prosecution. He offered his belief that two Alaska
Supreme Court cases - Scott v. State, 519 P.2d 774 (Alaska
1974), and State v. Summerville, 948 P.2d 469 (Alaska 1997) -
have held that "this" would be an unconstitutional provision
because, among other things, it would require the defendant to
waive his/her privilege against self-incrimination.
MS. KERRY offered her understanding that there are a lot of
public policy reasons against providing for reciprocal
discovery. For example, the defendant ought to be able to
disclose everything to his/her attorney, knowing that it will be
kept confidential. Therefore, she opined, [reciprocal
discovery] must be guarded against, characterizing it as a wise
decision to keep attorney-client communications confidential.
In response to a question, she offered her belief that
reciprocal discovery would impinge on the attorney-client
privilege.
9:03:45 AM
BARBARA BRINK - after relaying that she was a public defender
for the State of Alaska for 23 years, and that she had testified
before but had limited her comments to the issues of cost and
the danger of executing innocent people - indicated that today
she would be addressing the testimony provided by a
representative of the Department of Law (DOL) on [March 2,
2009], testimony which deeply upset and disturbed her because it
appeared that the DOL representative, when speaking about the
deterrent effect of the death penalty, was trying to leave the
committee with the impression that if Alaska had had a death
penalty, that it would have prevented additional murders in
three specific instances, and that nothing short of the death
penalty would have done so. Ms. Brink explained, however, that
under the facts of the cases referred to by the DOL
representative - Mr. Novak - nothing could have been further
from the truth.
MS. BRINK said:
[Mr. Novak] ... talked about the [Douglas] Gustafson
and [Raymond] Cheely case, where Mr. Gustafson and
[Mr.] Cheely were convicted of homicide after shooting
into a moving car and killing a person; they then went
on to plan further crimes and a homicide while they
were in custody. [Mr. Novak] ... left you with the
impression that had we had a death penalty, that
couldn't have happened and this innocent life would
not have been lost. But in fact, Mr. Gustafson and
Mr. Cheely were acquitted of first degree murder -
they were only convicted of second degree murder.
[So] even if Alaska [had] had a death penalty, the
death penalty would not have applied to those
gentlemen, and so having a death penalty or not having
a death penalty would have made absolutely no
difference in what happened after they were convicted.
For the State [DOL] to claim the death penalty [would
have been] a deterrent in that situation is false.
Secondly, [Mr. Novak] ... mentioned the case of
Timothy Donnelly, who, in a fight in a jail, killed
another person. But Mr. Donnelly was not convicted in
the State of Alaska criminal justice system - he was
convicted in federal court - [and so] An Alaska death
penalty would not have applied to Mr. Donnelly and
would not have prevented any killings, and, in fact,
he was not only convicted in a federal court but he
was doing his time in a federal prison in Georgia. An
Alaska death penalty is not going to have any effect
on whether or not the Georgia Federal Bureau of
Prisons facility has adequate security in order to
protect its inmates. And in fact, Mr. Donnelly
himself was killed in that very same Georgia Federal
Bureau of Prisons facility.
The third example that Mr. Novak gave us was that of
Carl Abuhl, who was convicted of homicide in Ketchikan
and then killed an inmate by the name of Gregory
Beaudoin in a State facility here in Alaska. Mr.
Novak again left us with the impression that had we
had a death penalty in Alaska at the time, that Mr.
Beaudoin would have not been attacked and killed.
However, that, again, is a false assertion: Carl
Abuhl, also, was not convicted of murder in the first
degree - he was convicted of murder in the second
degree. Even if we ... had a death penalty in the
state of Alaska, he would not have been eligible for
execution - he would not have faced it.
MS. BRINK continued:
So the ... State's argument that these deaths would
have been prevented had we a death penalty is
completely fallacious. I would ask this [committee]
... not to consider that testimony, and, in fact, I
have looked for a case in Alaska where we had a person
who was convicted of first degree murder who might
have been prevented from doing further crimes had we
had a death penalty, and I could not find one. I
assume the State could not find one either, or they
would have brought it to our attention instead of
these examples that were untrue. There is no
deterrent effect ... with the death penalty.
Recent studies in Oklahoma and California failed to
find that capital punishment had any deterrent effect
on violent crimes, and, in fact, found that there were
significant increases in stranger-killing and homicide
rates after the death penalty was reinstated in ...
1976. In contrast, the murder rate in Canada dropped
by 27 percent since the death penalty was abolished in
1976. And a New York Times survey recently
demonstrated that homicide rates in states with
capital punishment are 48 to 101 percent higher than
those states without the death penalty. The death
penalty has no individual deterrence, it has no
general deterrence - it should not be employed in the
state of Alaska. Thank you.
CHAIR RAMRAS said he is not the least bit interested in the
death penalty as a deterrent, but rather simply believes that
there are just some people who do crimes heinous enough to
deserve the death penalty. He expressed an interest in moving
forward with [adopting] the aforementioned forthcoming amendment
pertaining to what he'd earlier characterized as irrefutable
evidence, indicating his belief that it would narrow the scope
of people to whom the bill would apply.
9:09:15 AM
MS. BRINK said that she doesn't believe that the goal of
criminal justice systems is revenge; that she doesn't understand
the concept of making a judgment regarding who deserves to die;
that she doesn't think doing so is necessary; and that she
thinks that sentencing people to serve long sentences - for
example 99-year sentences - simply addresses a public safety
concern, offering her belief that that's the point of a criminal
justice system. She elaborated:
So it isn't a matter of judging or deciding who's
deserving of a worse punishment or more infliction of
pain. The reason we put somebody in jail for 99 years
is because we need to protect the public from them
forever, and I think that the idea that because of
someone's acts they deserve a more heinous punishment,
that doesn't compute to me in terms of criminal
justice policy. Criminal justice policy is [meant] to
protect the public and to punish heinous acts, and
drawing a line between doing something worse to
somebody because what they've done is even worse
doesn't seem to me to satisfy any public interest that
we have as a community or as a government.
REPRESENTATIVE GRUENBERG expressed concern regarding the fact
that the DOL knew that the case examples Mr. Novak presented
were not on point. He offered his understanding that under the
Alaska Rules of Professional Conduct, Rule 3.3 requires candor
towards a tribunal, in that a lawyer is not supposed to make a
false statement of material fact of law to a tribunal.
Acknowledging that a legislative committee is not technically a
tribunal in the same sense as a court, he said he believes that
a lawyer ethically has the same duty of candor in a legislative
hearing that he/she would have in court - that being to not
knowingly mislead.
MS. BRINK concurred.
9:13:45 AM
MS. BRINK, on the issue of "irrefutable evidence," offered her
understanding that the National Science Foundation (NSF) has
recently issued a report calling into question a lot of the
forensic evidence that the criminal justice system has been
using for years to convict people. She said that she
appreciates the committee's concern and desire to have a
requirement that there be so-called "irrefutable evidence" in
order to impose a death penalty, but thinks that "we'll never
know whether we have irrefutable science" - technology and
science are changing so rapidly that evidence used in trials she
participated in, such as fingerprints and blood spatter and
blood testing, have since come into question though people
thought that at the time that such were reliable forms of
evidence. With the expansion of knowledge, problems with DNA
evidence, for example, could be found, and this is evidence
which is now thought of as irrefutable. She added, "So I'd
simply urge caution because the state of science is always
changing, and I don't know that we will ever have biological
evidence that we can rely on 100 percent."
MS. BRINK, in response to a question regarding whether she
thinks the bill is severable, said it would depend on what
portion of the bill a particular case was being appealed on,
adding "you cannot tell whether its severable until you find out
what the issue is and what part you're trying to take out."
9:15:44 AM
SETH CHURCH expressed support for HB 9, saying he believes that
the victim deserves to have justice as much as the criminal
deserves to get punishment - it's not just a public safety
issue, it's repayment for what was done to the victim.
9:16:33 AM
SHIRLEY DICKENS said she is the mother of a son who was murdered
in 1984, that he was found bludgeoned to death in Kincaid Park,
and that her son's murder has never been solved. In spite of
this, she relayed, she would be speaking against HB 9 because
when her son was murdered, she was so stricken by the horror of
taking a human life that she came down morally on the side of
being against the death penalty, and feels even more strongly
about it now. She went on to say:
We should put our effort, as I have tried to do ever
since then, into preventing murder so that all of us
know we are connected, [that] when we kill someone, we
are hurting ourselves deeply, morally. It is wrong to
kill, and if it's wrong to take a human life, then
it's almost more abhorrent to me for the State,
coldly, in the name of justice, to take a human life.
Now, if someone has been convicted of murder, and
their crime is heinous enough, lock them up for the
rest of their life, but do not kill in my name, I beg
you. This would be a step backwards for Alaska, it
would be, I think, a black mark on our legislature and
on you all down there.
And as far your feelings [that] ... some crimes are so
horrible that it isn't enough to lock [the
perpetrator] up forever, after my son was killed ... I
had this strong feeling ... that said, "Vengeance is
mine ... saith the lord," [so] don't you worry about
it: you put energy into making this world a better
place by supporting the children, the abused women,
the neglected children, helping people to parent
better, [and] to know that [it] ... is a great moral
wrong to kill. So I urge you, "Not in my name."
Thank you.
9:21:01 AM
BARBARA BACHMEIER pointed out that Article I, Section 12, of the
Alaska State Constitution mandates that criminal administration
be based on the need for protecting the public, community
condemnation of the offender, the rights of victims of crimes,
restitution from the offender, and the principle of reformation.
The point of reformation, she opined, is to improve or
rehabilitate the offender so that he/she, potentially, can cease
to be a threat to the public. The Alaska State Constitution
guarantees specific rights - including reformative services at
State expense - to offenders following conviction and during
incarceration, and there is no exception for those convicted of
capital crimes, and [the legislature] has a duty to honor the
constitution and all of its provisions. She offered her
understanding, also, that the Alaska Supreme Court, in 1997,
recognized rehabilitation as a fundamental right in Brandon v.
State Department of Corrections. Moreover, although some would
argue that reformative services offered to offenders on death
row would be a waste of State time and money, she opined that
people should be mindful of the fact that not all offenders on
death row are actually put to death. For example, the Innocence
Project has overturned convictions - including capital
punishment convictions - by presenting DNA evidence that was
unavailable at the time of the court proceedings.
MS. BACHMEIER surmised that the money wasted on those charged
and convicted of capital offenses would be spent on salaries and
benefits for additional prosecutors and public defenders, on
long, protracted legal battles and appeals, on expensive court
costs, and on other costs as well. Legislation reestablishing
capital punishment in Alaska will deny offenders their
constitutional right to rehabilitation. In conclusion, she
urged the committee to let HB 9 die quickly and deliberately,
not Alaskans convicted of capital crimes.
9:26:08 AM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that the ACS is neutral on HB 9. In response to a
question, he explained that there are two challenges to seating
a jury in a death penalty case, one being the length of the
trial - few people can commit to serving for such a long time -
and the other being that a juror has to be "death qualified,"
meaning that he/she has to be willing to impose the death
penalty should the case warrant it. In rural areas of Alaska,
for example, the ACS routinely calls 100 perspective jurors in
an effort to get just 12 jurors and 2 alternates for regular
felony cases; in rural Alaska, there are so many family
relations and other connections that it can be difficult to get
a jury. For capital crimes, he relayed, other states call
between 200 and 1,700 prospective jurors, with Washington
routinely calling 1,000 prospective jurors and Los Angeles
County routinely calling 800 prospective jurors.
MR. WOOLIVER said he assumes that in Alaska, the ACS would have
to call about 500 prospective jurors, though one of the factors
that would determine how many people the ACS would have to call
is the attitude about the death penalty held by the people in
the community where the trial was taking place and from which
the ACS would be pulling its jurors. Noting that testimony thus
far has indicated that the Alaska Native population is
substantially opposed to the death penalty, he surmised that
seating a jury in rural hub communities such as Kotzebue,
Bethel, Nome, or Barrow - all felony trial sites with superior
court judges - would be a real challenge. He added that as a
practical matter, if the ACS had to call 1,000 prospective
jurors in Kotzebue, for example, he doesn't know how that would
be accomplished. He mentioned that the DOL's fiscal note
recognizes that the smaller and more remote the community in
which a capital murder trial takes place, the more difficult it
will become to hold that trial.
9:30:15 AM
REPRESENTATIVE HOLMES asked whether there would be any
constitutional issues raised regarding only being able to try
capital cases in Alaska's larger communities.
MR. WOOLIVER said there is both federal and state case law that
says the State "can't just take a village murder outside of
Kotzebue and try it in Anchorage," for example. The concept of
"a jury of one's peers," he explained, means that ultimately,
the goal is to try the case in the community in which the crime
was committed, or, as a practical matter, if the community is
just too small, then the case would be tried in the nearest
venue site. In response to a question, he said there are
logistical challenges to all major felony trials in small
locations, and that this type of trial would be particularly
challenging for a number of reasons, though the ACS would strive
to meet those challenges. In response to another question, he
reiterated his comment about the DOL's fiscal note.
REPRESENTATIVE COGHILL asked whether the ACS has been confronted
with similar challenges in cases where the prosecution was
seeking a 99-year sentence or similarly-long sentence.
MR. WOOLIVER offered his recollection that there was a very
serious felony trial on Saint Paul Island, and that that trial
did pose serious challenges. He said he would provide the
committee with more information regarding other major felony
trials occurring in small communities. In response to a further
question, he too noted that the Alaska State Constitution states
that criminal administration shall be based on the need for
protecting the public, community condemnation of the offender,
the rights of victims of crimes, restitution from the offender,
and the principle of reformation, and indicated that the ACS
keeps this mandate in mind when handing out sentences.
REPRESENTATIVE GRUENBERG offered his understanding that the
aforementioned requirement that in so far as possible, a trial
take place in the community in which the crime occurred, or as
close to it as possible, is the constitutional right of vicinage
[referred to in] the Alaska Supreme Court case, Alvarado v.
State, 486 P.2d 891 (Alaska 1971).
MR. WOOLIVER concurred.
9:38:15 AM
SUSAN S. McLEAN, Acting Deputy Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), in response
to a question, also noted that the Alaska State Constitution
states that criminal administration shall be based on the need
for protecting the public, community condemnation of the
offender, the rights of victims of crimes, restitution from the
offender, and the principle of reformation. She added that that
provision of the Alaska State Constitution used to provide that
the goals of criminal administration were protection of the
public and rehabilitation of the offender, and that the addition
of community condemnation and restitution was brought about by a
constitutional amendment approved by the voters in 1994. These
factors are considered during sentencing, and have been codified
in case law and are known as the "Cheney (ph) criteria," she
relayed, adding that community condemnation and the
reaffirmation of societal norms is just one of the goals of
sentencing.
CHAIR RAMRAS questioned whether the death penalty for heinous
murders could be construed as satisfying the constitutional
requirement of providing for community condemnation.
MS. McLEAN surmised that that argument might be raised in court,
and offered her belief that such an argument does have some
legal basis. The flip side of that argument, she added, is that
the court could ignore the requirement to provide for
rehabilitation, and that there is lot of case law "that says
that as well." In response to a question, she said she doesn't
yet know how many murder-in-the-first degree cases have been
tried in courts located outside of Anchorage, Fairbanks, and
Juneau, but relayed that Bethel is a Superior Court site, that
it would be accurate to say that the presumption is in favor of
the venue being where the crime was committed, and that whenever
possible, first degree murders that occur in Bethel are tried in
Bethel.
MS. McLEAN, in response to comments, said she does not believe
that Alaska's justice system is a failure, as some have
contended, but acknowledged that "we always have to say that
there is no such thing as an infallible system." She offered
her belief that Alaska's public defenders are expert defense
attorneys, probably better qualified than many of the private
defense attorneys trying serious cases. She said she knows of
no case in which a defender was later exonerated on the basis of
DNA evidence, or of any evidence showing that Alaska's justice
system is a failure. Alaska has an extremely protective court
system that is quick to overturn any case where it appears that
the person wasn't afforded due process of law and all of the
rights guaranteed under the constitutions.
9:45:16 AM
MS. McLEAN, in response to a request, relayed that during the
past five years, 170 cases involving murder in the first degree
were referred for prosecution, with an average of 34 such cases
per year; of those 170 cases, there were 33 dismissed by the
State, there were 25 reduced to a different charge, there were
18 that ended with a conviction for the crime of murder in the
first degree, there were 14 in which the defendants "pleaded to"
the crime of murder in the first degree, there were 5 that
resulted in "not guilty" verdicts, there were 5 wherein the
defendants were not indicted for the crime of murder in the
first degree by the grand jury, there was 1 court trial wherein
the defendant plead guilty to a lesser offense, there was 1 jury
trial wherein the case went to trial but on a lesser charge, and
there was 1 acquittal. She said she would make those statistics
available to the committee.
MS. McLEAN, in response to comments and a question, said she did
not have statistics regarding the race or ethnicity of those
charged with or convicted of murder in the first degree, but
that in her experience, there has not been a disproportionate
number of poor or minorities being so charged or convicted. She
acknowledged, though, that there is a study indicating that
there is a disproportionate number of Alaska Natives in prison.
In response to a question, she offered to research those issues
further.
9:53:08 AM
MS. LERMAN, in response to comments, relayed that she and others
who've testified thus far today would be available during the
afternoon meeting to address the aforementioned forthcoming
amendments. She then suggested that the committee research via
the Internet situations involving a scandal at the Houston
Police Department (HPD) crime lab, and a scandal at the Federal
Bureau of Investigation (FBI) crime lab; these situations speak
volumes regarding the extent to which DNA and other forms of
forensic evidence can't ever be considered "irrefutable."
[HB 9, Version E, was held over.]
9:55:16 AM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 9:55 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Amendment 1 E.2.pdf |
HJUD 3/23/2009 8:00:00 AM |
|
| Amendment 1 E.1.pdf |
HJUD 3/23/2009 8:00:00 AM |
|
| HB9 Sponsor Statement.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 Sectional version E.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 CS version E.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 Fiscal CTS Appellate.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 Fiscal DOC-OC-02-24-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 Fiscal Note-DPS-02-18-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9 Fiscal Trial Courts.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9-DOC-OC-03-15-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9-Fiscal DOA-OPA-2-20-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| Amendment2.pdf |
HJUD 3/23/2009 8:00:00 AM |
|
| HB9-Fiscal DOA-PDA-(page 2)-2-20-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9-Fiscal LAW-CRIM-2-20-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |
| HB9CS Fiscal Note-DHSS-02-19-09.pdf |
HJUD 3/23/2009 8:00:00 AM |
HB 9 |