03/23/2009 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB9 | |
| HJR3 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 3 | TELECONFERENCED | |
| += | HB 9 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 23, 2009
1:26 p.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
HOUSE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of
Alaska requiring an affirmative vote of the people before any
form of gambling for profit may be authorized in Alaska and
setting other requirements.
- 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
03/23/09 (H) MINUTE(JUD)
03/23/09 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 3
SHORT TITLE: CONST. AM: NO GAMING WITHOUT VOTER APPROVAL
SPONSOR(S): REPRESENTATIVE(S) CRAWFORD, DAHLSTROM
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) STA, JUD, FIN
02/12/09 (H) STA AT 8:00 AM CAPITOL 106
02/12/09 (H) Heard & Held
02/12/09 (H) MINUTE(STA)
03/17/09 (H) STA AT 8:00 AM CAPITOL 106
03/17/09 (H) Moved Out of Committee
03/17/09 (H) MINUTE(STA)
03/18/09 (H) STA RPT 6DP 1NR
03/18/09 (H) DP: GATTO, SEATON, WILSON, PETERSEN,
JOHNSON, LYNN
03/18/09 (H) NR: GRUENBERG
03/23/09 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MARGARET PUGH
Juneau, Alaska
POSITION STATEMENT: Speaking as a former commissioner for the
Department of Corrections (DOC), testified in opposition to
HB 9.
MAKO HAGGERTY
Homer, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
MARY J. TOUTONGHI
Soldotna, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
JOHN DAVID THACKER, Pastor
Prince of Peace Mennonite Church
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
VICTOR FISCHER
Anchorage, Alaska
POSITION STATEMENT: Speaking as a delegate of the Alaska
Constitutional Convention, a former Representative of the Alaska
Territorial Legislature, and a former Senator of the Alaska
State Legislature, testified in opposition to HB 9.
PATRICIA KENNISH
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
DIANE BENSON
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
ERIKA KAHILL, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 9, testified in
opposition to the death penalty.
BRENDAN O. KELLEY
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
AVERIL LERMAN
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: Provided comments during discussion of
HB 9.
JEAN CRACIUN
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 9.
HUGH BROWN III
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 9.
PAUL GROSSI, Staff
Representative Harry Crawford
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 3 on behalf of one of the
joint prime sponsors, Representative Crawford.
ACTION NARRATIVE
1:26:48 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:26 p.m. Representatives Ramras, Holmes,
Coghill, Gatto, Lynn, and Gruenberg were present at the call to
order.
HB 9 - CAPITAL PUNISHMENT
1:27:10 PM
CHAIR RAMRAS announced that the first 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 was adopted as the work
draft on 2/23/09.]
1:29:02 PM
MARGARET PUGH, relaying that she is a former commissioner of the
Department of Corrections (DOC) and had served as superintendant
at two of the DOC's facilities, said she is opposed to HB 9 and
to the death penalty for many reasons, several of which, she
noted, have already been articulated during the committee's
prior hearings on the bill. The DOC has a proven track record
upon which the citizens of Alaska can rely, of protecting the
public from violent offenders and suitably confining such
offenders. At present, she opined, the DOC has many needs and
requires a lot of funding for many things, but spending money on
implementing a death penalty should not be one of them. She
said she believes that for the State to kill people will, in its
own way, perpetuate a societal culture of violence.
MS. PUGH remarked:
We say that we're opposed to violence, we pass laws to
demonstrate our disapproval of violence against one
another, and yet the statistics would show that the
United States of America has a higher percentage of
violent crime than other westernized nations. To me,
sociologically, ... I believe that shows that we in
fact do have a culture of violence in our nation, and
[that if] you put on top of that societal structure,
the State - the government - standing there with the
ultimate threat of violence - that of death - I think
our nation and our State would be much better served
to stand up now, again, and say, "No, we're opposed to
violence against the people, we disapprove of
violence, we disapprove of the State setting such an
example."
MS. PUGH - in response to a question regarding the Alaska State
Constitution's mandate that criminal administration be based
upon 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 - offered
her belief that by keeping correctional facilities safe and
secure, all of those points can be satisfied at once, and that
they are not mutually exclusive. She noted that the Alaska
State Constitution does not prioritize any one of those points
above the others. Over the years, with the trend of
incarcerating mentally ill in the correctional system, both in
Alaska and in the rest of the nation, a treatment component has
to be present, she opined, because correctional officers are not
mental-health professionals.
MS. PUGH, in response to another question, offered her
understanding that there are cases in which the deoxyribonucleic
acid (DNA) evidence has ruled out certain prisoners on death row
as perpetrators of particular crimes, but the rules in those
jurisdictions have not allowed them to receive a "re-hearing,"
and so those people are still in prison. In response to other
questions, she recounted aspects of what prison life is like for
prisoners, surmised that it is not a lifestyle that anybody
would willingly choose, and acknowledged that perhaps there are
some perpetrators who should be incarcerated for the rest of
their lives because they are so dangerous.
1:44:49 PM
MS. PUGH, in response to comments and a question, relayed that
the DOC uses a classification system that measures and rates
security and custody concerns raised as a result of a particular
prisoner being incarcerated; this system considers things such
as a person's past crimes, his/her mental health, treatment
needs, as well as other issues. Furthermore, although different
DOC facilities have different levels of security, all must be
capable of securely holding even the most serious of offenders.
In response to another question, she pointed out that it is the
DOC's job to manage its prison population and keep it safe, and
that it does so by providing the appropriate security and
custody for particular prisoners. For example, some prisoners
spend years in solitary confinement because they pose a threat
to the rest of the prison population, and some prisoners are
kept secluded because the rest of the prison population poses a
threat to them. The DOC, she opined, does a good job of
managing its prison population.
MS. PUGH relayed that it is a common belief among correctional
industry staff that prisoners facing the death penalty pose an
even greater threat to staff and other inmates because they have
nothing left to lose. She offered her understanding that the
DOC's fiscal note for HB 9 reflects a recognition that it will
have to increase security and custody measures in the facility
with the "death house" should capital punishment be reinstated
in Alaska. Staff at that facility would need to receive
specific training, and would need to deal with being tasked with
killing another human being; many states with a death penalty
provide traumatic-incident debriefing to correctional facility
staff and other inmates involved in executions. She said that
if she were still commissioner and had to be involved in the
execution of someone, she would be traumatized beyond belief.
1:52:38 PM
MAKO HAGGERTY said he opposes HB 9 and opposes the death penalty
with all of his being. He pointed out that even the sponsor
statement acknowledges that the death penalty would not act as a
deterrent, and characterized that as "absolutely true by all
statistics." Why have a death penalty if it won't serve as a
deterrent, he questioned, particularly given how very expensive
it is. He said he doesn't believe that the state could afford a
death penalty, and that he finds it be morally reprehensible and
constituting cruel and unusual punishment - it is, after all,
just another form of murder, albeit State-sanctioned murder. In
conclusion, he asked the committee not to make him a party to
murder, again saying that he opposes HB 9.
1:54:12 PM
MARY J. TOUTONGHI said she is in opposition to HB 9, and concurs
with Mr. Haggerty that it is morally reprehensible and
financially irresponsible. She shared her belief that
[reinstituting a death penalty] would serve no positive
function, and again said that she is opposed to [the bill].
1:55:14 PM
JOHN DAVID THACKER, Pastor, Prince of Peace Mennonite Church,
said that on behalf of his congregation and all Mennonites in
Alaska, "we oppose HB 9 and the death penalty." He went on to
say:
We believe that following Jesus requires us to make
peace, to love our enemies, to seek reconciliation, to
practice forgiveness. We have chosen life over death,
and we ask you to do the same. The Mennonite Church
USA has adopted many resolutions calling upon its
members to work for the abolition of the death
penalty. In this effort, we join with millions of
other Christians in this nation who have also called
upon our government to abolish the death penalty.
This list includes Catholics, Lutherans, Methodists,
Quakers, Brethren, Baptists, Episcopalians, Orthodox,
Moravians, Presbyterians, Reformed, and many more.
We believe that capital punishment is ineffective,
inequitable, irreversible, and inhumane. True
restorative justice works to rehabilitate the
offender, to address the needs of the victims, and to
restore the community. An execution cannot
rehabilitate. It cannot make the victims whole, and
it cannot heal our communities. We are deeply
grateful that the state of Alaska has refused to kill
its own citizens. We urge the members of this
committee to preserve Alaska as a state free of the
death penalty.
1:57:21 PM
VICTOR FISCHER relayed that over the past several years, he's
spoken before thousands of young people about statehood, the
Alaska State Constitution, what he and the other delegates
strove to achieve, how Alaska has moved forward, how life has
been better, and how Alaska's institutions have worked
effectively, essentially giving these young people a positive
view of where they are and the opportunities ahead, relaying
that change is still ahead, that change can be for the better,
that values are extremely important, that they must live by the
values that they get from their family and community, and that
they need to strive for a better life, a better community, and a
better Alaska. He said he's essentially tried to instill in
these young people a feeling that the future can be approached
in a positive, optimistic manner. He said he is saddened,
therefore, to have to speak about the death penalty, but it's
something that his conscience requires that he do.
MR. FISCHER remarked:
Our state has managed to survive for 50 years without
the death penalty. I was a co-sponsor of the bill, in
the 1957 [Alaska State Legislature], to abolish the
death penalty; Warren Taylor of Fairbanks was the
principal sponsor. I don't have the time or
inclination right now to tell you about his marvelous
oration where he talked about the individual cases of
people who were condemned to death and were hanged in
Alaska prior to statehood. He was very effective, and
we have not ... had the death penalty, and [it just]
... seems to me that the state has not suffered, the
people of Alaska have not been worse off.
MR. FISCHER added:
I'll take a few minutes to give you my background, and
how I arrived at my ... hate of ... State-managed
capital punishment. ... My father was an American
foreign correspondent; he worked all over the world.
As a kid, I lived in Germany. I was in Germany during
the time that Hitler was coming to power. I was in
Berlin when Hitler took over power. In Germany, after
that occurred, we had State-sanctioned killing. It
was political killing, it was ethnic killing, it was
killing of disabled people, of Jews and gypsies, of
Protestant ministers, of ... whoever did not go along
with Hitler, whomever he despised - there was State-
sanction killing.
In the years thereafter, in my youth, my father's work
was in Moscow, Russia. I remember as a kid first
seeing ... this marvelous land of the future where
equality was painted all over, freedom of individual
and community and so on, and then I saw the reality,
then, when the Stalin terror began. ... I don't want
to go into this at too great a length, [but] let me
just tell you that parents of my best friends were
arrested and killed - executed - by the State.
Parents of my classmates were arrested, executed, sent
off to the gulag to die. And I have stacks of
information on that. One of my classmates had a very
well-known father, and he was tried; he confessed to
all sorts of crimes, of which he was innocent, but he
confessed, and he got a bullet in the back of his ...
[head/neck].
I've had this abhorrence of state-sponsored killing
ever since - it just ... sort of permeated me; I hated
that situation, I was glad to get away from it again.
And, let me just as an aside say, I was in the U.S.
Army during World War II, spent three years, was
overseas; I did not shoot to kill anyone but was
trained to kill, I was ready to kill. It was a
killing that during the war was for a great cause, to
make the world better, to protect the world - it was
not killing individuals, not shooting at individuals
for vengeance, for retribution, to make my community
feel better - this was war against evil.
2:05:42 PM
MR. FISCHER continued:
... I keep coming back [to the] ... question, will
Alaska be better for having the death penalty? Will
Alaska be better, will we better [the] community, will
our future be better? [With regard to] the questions
of justice, I was listening to the discussion this
morning, and the thing that bothered me was the
process that was raised; [for example], jury selection
- the jury of peers would be made up of people who
believe in the death penalty - the 50 percent or more
who do not believe in [the] death penalty would be
excluded from [the jury] ... in the penalty case. Is
that the jury of peers? It just bothers the hell out
of me.
Mention has been made time and again, beginning with
the sponsor statement, about heinous crimes, [but]
there is no definition anywhere [regarding] what a
heinous crime is, the aggravating considerations of
various sort, but it doesn't really provide a
guideline. I think we'll be back to the same ...
basic issues that bothered us back in 1957, when there
was a question of, is it more of a heinous crime or
less of a heinous crime when a black commits it
against a black, or ... black against a white, or
white against a black, or white Native against Native,
or whatever? These are not objective judgments.
There are issues of hysteria. There are times when
something horrendous happens. ... To me, the most
heinous crime imaginable, to me, was what if my young
daughter were raped ... and/or killed. That would be
heinous. And, at the time, I thought more than once
that if that happened, I would go for my gun and kill,
and I wouldn't give a damn whether there was a death
penalty at the end, [or] life in imprisonment, no more
than the kids who were involved in Columbine or any
other issue think in terms of death penalty. And
nothing is solved in the end. I mean I could get
personal satisfaction, but I don't want the State
killing for me.
MR. FISCHER went on to say:
I come back to the question, does the state need this?
Is it necessary for us to have the death penalty
except to give us certain satisfaction? ... I love
this state, as you well know; I am concerned about the
[state's] image. We have had articles and headlines
for months now about other states, for a number of
reasons, including cost, which to me is irrelevant,
saying that they're moving toward abolishing the death
penalty. The current issue of The Economist has an
article [titled "Rethinking the death penalty" with
opening sentences reading in part]: "AN EYE for an
eye, or at any rate a death for a death, is the type
of justice that most states still embrace. Only 14 of
the 50 states have banned capital punishment ...."
The civilized world, as has been mentioned, has
eliminated capital punishment. Do we want to join
with Texas, compete with Texas, on per capita ...
State-killing? Do we want to join China and other
repressive regimes? I don't think so. ... Alaska has
been seen as a shining star in the United States.
People have dreamed of Alaska, coming to Alaska,
they've just seen that Alaska was special. In [the]
last couple of years, our reputation has been
besmirched. There's been all this nonsense about the
bridge to nowhere, ... the corruption, and various
other things that have made headlines around the
country. And I just don't want to have another
headline that says, "Alaska reinstates capital
punishment", as other states, by the dozen, are
considering abolishing the death penalty and are
actually doing so.
MR. FISCHER concluded:
... I want to ask you: Is this really necessary?
Will this really make Alaska a better place? Thank
you, Mr. Chairman, for the opportunity to speak to you
from my heart.
2:12:44 PM
REPRESENTATIVE GATTO questioned whether a headline such as,
"Convicted felon kills yet again" would discourage people from
visiting Alaska.
MR. FISCHER opined that although such a headline isn't one that
Alaskans need, it isn't going to affect tourism. He queried:
Convicted felon? Is it somebody who's been convicted
and released after 20 years and then kills? No, that
wouldn't be relevant in this discussion. We're
talking ... basically about conviction [and]
imprisonment for life versus [the] death penalty. If
we start putting all felons to death, then we would
never have a headline, "Felon kills again". But
that's not the issue, I don't think.
REPRESENTATIVE COGHILL relayed that he has been trying to
consider what is truly just, particularly given that murder
victims don't get all the advantages granted to those accused of
their murders. He characterized the murder of someone as a huge
injustice, and opined that under a just scenario, a person who
kills someone would be required to give up his/her life. He
asked whether the current system can deliver that kind of
justice.
MR. FISCHER said that his definition of justice doesn't lead to
the death penalty. There are murders occurring all over Alaska.
Does this mean that the State must kill, kill, kill, and kill
again? Where would one draw the line? Is killing a couple of
kids worse than killing a couple of adults? How about those who
"accidentally" shoot a friend? That friend is as much a murder
victim as any other person who's been murdered. What is an
accident? How does one know it was an accident? He concluded,
"I think once we start on that slope, I think we're in trouble."
2:19:50 PM
REPRESENTATIVE GRUENBERG asked whether, just because one person
kills another, that makes it right to execute that person. Do
two wrongs make a right?
MR. FISCHER said not in his view. There's a big difference
between someone who kills someone out of revenge for the death
of a family member, and State government - in this case, the
State of Alaska - killing someone. There are other means of
punishing the guilty party, of getting justice. He opined that
having to serve 40-50 years in prison would be a worse
punishment than the death penalty. In response to a question
regarding the Alaska Constitutional Convention, he surmised that
the issue of capital punishment did not come up because
delegates considered such an issue to be a matter for the
legislature to deal with. In response to another question, he
said that he is not aware of any other state constitution that
addresses the issue of the death penalty.
MR. FISCHER, in response to a question, explained that back when
the death penalty was imposed during territorial days, some
innocent people were put to death even though it was known that
they were innocent, and all of those put to death were racial or
ethnic minorities. One thing that he and Warren Taylor
discussed, Mr. Fischer relayed, and that was brought up during
the floor debate, was the unethical aspect of the government
carrying out state-sanctioned killing of people. Mr. Fischer
noted that Warren Taylor had participated in capital punishment
trials, both as prosecutor and as defense attorney.
MR. FISCHER, in response to comments and a question, offered his
understanding that many Alaska Natives feel disaffected and feel
that there is discrimination, and are therefore troubled. He
surmised that with regard to rural justice, there are still
issues that need to be resolved, and that the religious
community could do a lot to address such issues.
2:32:09 PM
PATRICIA KENNISH indicated that she would be speaking against
HB 9 - the death penalty. She said:
I believe the premeditated taking of a life is murder,
whether done by an individual or by the State. Done
by the State, it becomes the model of an acceptable
means of resolving an issue, and, then, judging by
comments I heard earlier, a matter of expediency. To
suggest that it is justified because of the suffering
of victimized families reflects the desire for
revenge. We have only to look around the world to see
how revenge has torn communities and countries apart
and resulted in continuous bloodshed. I would hope
that the State would provide justice for victims and
society but have no part in the taking of lives.
Thank you.
2:33:12 PM
DIANE BENSON first relayed that she often speaks on the issue of
justice for victims of crime in Indian country, mostly
nationally. She then said:
My grandfather was murdered in Sitka, during
territorial times, in front of relatives and friends,
and the man who murdered him was acquitted by an all-
white jury. During this period, two Tlingit men found
the bodies of a white family; they were then arrested
for the murders and sent to prison. So let's fast-
forward to recent years - several murders of Native
men and women go unresolved. As the granddaughter of
a murdered grandfather, I am angry over the injustice.
Justice is healing, and would help my family, but
killing, sanctioned by the State, is still killing.
It is not healing, and I can tell you it is not
healing to me.
Furthermore, no matter the emotional strings this bill
tugs on, it does not resolve the historic and
continual bias found in a more-than-imperfect Alaska
judicial system. ... No matter the effort, we still
find that those who are with means and connections are
unlikely to do the time or even an appropriate
punishment for the same crime as the more
impoverished. So I ask, how can we speak to putting
such power in the hands of a system that is yet so
flawed? Let me elaborate. The fact remains that the
field is not level. Rural Alaska is shortchanged on
law enforcement, sufficient corrections, and a fair
court process. Adequate funds do not reach rural
Alaska.
Furthermore, if a person does not speak English
adequately enough, they are disadvantaged in this
system. A person who comes from a Native culture that
does not believe in confrontation, and therefore
pleads nolo contendere, is susceptible in this system.
I know an elder who recently passed [away] who was
listed unfairly as a sex offender because he did not
want to speak contrarily. Being accused carries a
burden of shame that cause some of our more
traditional Native people to simply acquiesce; even
though innocent, they would rather take the punishment
than defend themselves, and rather than risk a
perceived insult to another family.
Now, I know it may not be understood by you, but that
is something that happens, and it happens more in a
system that is ill-funded and that is too often
culturally insensitive or merely overburdened. ...
Those who have the least means to hire sharp attorneys
will more likely be the ones put to death with this
bill, [whereas] a person of money who murders will put
up a costly fight and will be more likely to avoid
such a sentence. And it is ... [because of] that,
[that] it is not a fair system.
MS. BENSON continued:
I had the privilege of touring several of our
correctional facilities and meeting with inmates and
superintendants, and it was made clear to me that most
of those behind of bars, besides being made up of
disproportionate numbers of Alaska Natives and other
minorities, are the poor. Just in practical terms
regarding this bill: We are not strict enough on
truth and fairness, nor is our judicial system funded
enough to ensure that the law will be fairly applied.
In addition, the cost may exceed our budget. The bill
is also costly on another level: ... imagine an
overworked public defender having to face the stress
that their limitations contributed to the death of
another human being.
Who are we willing to trust to conduct the killing?
How do imagine that we as a society are a humane
society when we choose this path. ... How do we
reconcile our view that life is sacred yet put the
power of killing in the hands of our own State? Can
you live with that? You see, I cannot. I as a family
member of murdered family members cannot. I, knowing
from experience that too often those who are guilty go
unpunished for heinous crimes, and too often those who
are not may be excessively or erroneously punished,
... cannot accept that we have the wherewithal to
conduct such a practice and benefit by it, neither in
the betterment of our society nor in the development
of our spirit as human beings.
2:39:11 PM
ERIKA KAHILL, Attorney at Law, after relaying that she is a
criminal defense lawyer, said she opposes the death penalty
because it will inevitably result in the killing of the
wrongfully convicted. Over 3,500 people have been sentenced to
death, and given that nobody's perfect, the system is not
flawless, and even forensic science is not flawless, it is
unimaginable that none of those 3,500 death sentences resulted
from wrongful convictions, and the consequence of such mistakes
is the killing of innocent people.
2:40:16 PM
BRENDAN O. KELLEY relayed that he'd recently moved to Alaska
from Missouri, a state that still has a death penalty, and that
he'd worked as a criminal defense attorney in the public
defender system for five years. He elaborated:
In the system down there, there are specific offices
that handle [only] death penalty ... cases. That
creates a tremendous strain on the system itself. You
have people ..., [even] the best attorneys, who can
only handle very few cases, and if this system would
be implemented, an attorney would be forced to spend
nearly every waking moment of their time on a death
penalty case in fairness to the system, and that
leaves every other case that they're assigned, every
other case in the system, in the lurch.
If this bill passes, there will be long-term
ramifications, not only to the public defender, [but
also] to the attorney general [and] ... Department of
Corrections, all of which is unnecessary, in my
opinion, [even] setting aside any moral qualms against
the death penalty, which I certainly have. The
problem that I see, in looking at the bill and seeing
what I've seen in Missouri, is that there's always a
strive for it to be perfect, there's always a strive
... to rule out any possibility of a wrongful
conviction but we know - we know from evidence, we
know from researching cases - that people wrongfully
confess, all the time, and are wrongfully convicted.
People in Illinois wrongfully confess and were
convicted and exonerated. That's one of the things
that I think I saw in [a forthcoming] amendment. ...
The bottom line is that there is no answer that is
going to [ensure] ... that a wrongful conviction
cannot happen, and I think in that system, the
government ... [is in] no position to put anyone to
death.
MR. KELLEY, in response to a question, pointed out that the
problem with the death penalty is that death is final - someone
who's been executed cannot be exonerated.
2:44:58 PM
AVERIL LERMAN, noting that she's had a chance to read the
forthcoming amendments, said they appear to constitute a
laudable effort by the committee to ensure that only those who
are "actually, definitely, absolutely, certainly guilty" get
charged with capital murder. She explained however, that she
doesn't believe that that's possible. Referring to one of the
forthcoming amendments - that which would require that the death
penalty not be sought unless there is biological evidence or 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 - she
pointed out that there is a big distinction between "biological
evidence" and "DNA evidence", and that much of the biological
evidence that doesn't involve DNA evidence has been completely
discredited scientifically, such as bite mark evidence, blood
splatter evidence, some kinds of hair analyses, as well as other
kinds of biological evidence. Moreover, although DNA evidence
has not yet been discredited, even with it one cannot be sure of
what one is getting.
MS. LERMAN said she'd arranged for the committee to receive
three New York Times articles - "REPORT CRITICIZES SCIENTIFIC
TESTING AT F.B.I. CRIME LAB", New Doubt Cast on Testing in
Houston Police Crime Lab", and "Science Found Wanting in
Nation's Crime Labs" - regarding the scandals that have
discredited hundreds of convictions, articles based on Federal
Bureau of Investigation (FBI) expertise, information from the
Texas crime laboratory ("lab") scandal, and the National Academy
of Sciences (NAS) report on forensic science in America. She
said that although people long for certainty, and although
perhaps there are some people who are so evil that they don't
deserve to live among others, the problem remains that human
beings won't be "like god" in identifying those people, even
with DNA evidence, as illustrated by the aforementioned crime
lab scandals.
MS. LERMAN, referring to another of the forthcoming amendments -
that which pertains to what's been referred to as reciprocal
discovery - offered her belief that such an amendment is likely
to be found unconstitutional by the Alaska Supreme Court based
on both Scott v. State, 519 P.2d 774 (Alaska 1974), and State v.
Summerville, 948 P.2d 469 (Alaska 1997). In response to a
question about the forthcoming amendment regarding requiring
that the death penalty not be sought unless there is biological
evidence or 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, she pointed out that the term "conclusively"
isn't a term of art used in criminal law, and so there is no
precedent set for what it means. Furthermore, the term "links"
is very broad term. She surmised that this provision of the
amendment was designed for a case currently before the courts in
which there is a video recording of a man using a murdered
woman's automated teller machine (ATM) card. Although in that
instance such a recording could be said to conclusively link the
man to the murder, the same might not be true for a video
recording that shows a particular person was at a gas station,
for example, several hours before a murder occurred there.
2:49:29 PM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska) - in response to a question
about the forthcoming amendment requiring that the death penalty
not be sought unless there is biological evidence or 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 -
pointed out that of the 220 wrongful convictions that were
overturned through the use of DNA evidence, 25 percent involved
some form of false confession. It is important, therefore, to
remember that having a voluntary, videotaped confession is not
an assurance that the person making the confession is really the
perpetrator. Furthermore, statistics show that false
confessions are second only to false eyewitness identification
in being responsible for wrongful convictions.
MR. MITTMAN elaborated:
Let me give you an example of one case. A gentleman
by the name of Eddie Joe Lloyd served 17 years in
Michigan for ... murder and rape. It was determined
that he didn't commit it because DNA testing proved
his innocence, and led to his release in 2002. I
think what's important to note is that the judge ...
at his sentencing ... bemoaned that the court's hands
were tied since he could only sentence Lloyd to life
imprisonment rather that what he believed was the
only, quote, "justifiable sentence," which was, quote,
"termination by extreme constriction" i.e. hanging.
So we see here a case [of] an individual, where
everyone knew he was, quote unquote, "guilty of the
most heinous crime," including the judge, and it turns
out [Lloyd] ... was innocent.
As to the, quote unquote, "videotaped confession," ...
as we all know, Manhattan district attorney Robert
Morgenthau is well-known throughout the country as a
very successful, very principled prosecutor who's
recently announced his retirement. In 2002, [that
district attorney's office] ... went to a judge and
asked [him] to dismiss charges against five men that
had been prosecuted in the Central Park jogger case.
In this case, there were taped confessions of these
young men who admitted to committing the crime when in
fact they were innocent, as again was proven by DNA.
MR. MITTMAN said these are some of the issues raised with regard
to the so-called "irrefutable evidence" standard. In closing,
he offered his belief that the Founding Fathers knew that men
were imperfect and so set up a system that dealt with the
imperfections. If HB 9 were to be passed in the belief that
some sort of perfect system could be set up, what's being
forgotten is that it won't address the imperfections of human
beings, and no one should be left with the false impression that
it could.
2:52:48 PM
JEAN CRACIUN relayed that a 2008 statewide study of 400
registered voters conducted by Alaskans Against the Death
Penalty (AADP) illustrates that 57 percent of those polled
oppose the death penalty, with Alaska Natives and people who
live in rural Alaska comprising the highest percentage of those
who oppose it. The study also illustrates that 83 percent of
those polled were willing to agree that sometimes innocent
people are convicted and sent to jail, and that 56 percent of
those polled were willing to disagree that the government would
never execute an innocent person.
2:54:55 PM
HUGH BROWN III said that as a person who has worked with people
living with disabilities, with mental illness, or on the margins
of society, he thinks that HB 9 is inappropriate. House Bill 9,
he predicted, will cause a lot of people to question [the
legislature's] leadership, particularly given that the
statistics and the facts illustrate that people do get convicted
wrongfully, and that the system is imperfect. "We should not be
in the business of killing folk," he remarked, and questioned
what type of message would be sent by doing so. In conclusion,
he said that he is in strong opposition to HB 9, both personally
and on behalf of the various marginalized citizens of the state,
and urged the committee to oppose the bill and stop it from
moving forward.
CHAIR RAMRAS closed public testimony, and relayed that that HB 9
[Version E] would be set aside.
HJR 3 - CONST. AM: NO GAMING WITHOUT VOTER APPROVAL
2:56:31 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 3, Proposing an amendment to the
Constitution of the State of Alaska requiring an affirmative
vote of the people before any form of gambling for profit may be
authorized in Alaska and setting other requirements.
2:56:46 PM
PAUL GROSSI, Staff, Representative Harry Crawford, Alaska State
Legislature, explained on behalf of Representative Crawford, one
of HJR 3's joint prime sponsors, that HJR 3 is proposing an
amendment to the Alaska State Constitution such that if approved
by the voters, the Alaska State Constitution would then require
a vote of the people before any gambling for profit would be
allowed to take place in Alaska. He relayed that similar
legislation passed the House during the prior legislature. In
response to a question, he surmised that any forthcoming
testimony would focus on the negative impacts of gambling, and
the virtues of allowing the people to vote on whether they
wanted for-profit gambling to occur in Alaska.
REPRESENTATIVE LYNN noted that public testimony on HJR 3 was
heard in the House State Affairs Standing Committee.
CHAIR RAMRAS relayed that HJR 3 would be held over.
2:59:38 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:59 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HJR3 Sponsor Statement.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 02 HJR3 version R.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 03 HJR3 Sectional.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 04 HJR3 Fiscal Note LEG.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 05 HJR3 Legal Opinion.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 06 HJR3 2008 Bill Copies HJR2.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 07 HJR3 Letters of SupportOpposition.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 08 HJR3 Backup Facts about Gambling.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 09 HJR3 Backup Tide of Gambling Yield Backwash of Addiction.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 10 HJR3 Backup Gambling and Crime Among Arrestees.pdf |
HJUD 3/23/2009 1:00:00 PM |
|
| 11 HJR3 HSTA Committee Report.pdf |
HJUD 3/23/2009 1:00:00 PM |