Legislature(1997 - 1998)

03/10/1997 01:39 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         March 10, 1997                                        
                           1:39 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chair                                                   
 Senator Drue Pearce, Vice-chair                                               
 Senator Mike Miller                                                           
 Senator Sean Parnell                                                          
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
  COMMITTEE CALENDAR                                                           
 SENATE JOINT RESOLUTION NO. 17                                                
 Relating to challenging the environmental and economic integrity of           
 Alaska timber as Christmas decor for the United States Capitol.               
 SENATE BILL NO. 60                                                            
 "An Act providing for an advisory vote on the issue of capital                
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SJR 17 - No previous Senate committee action.                                 
 SB 60 - No previous Senate committee action.                                  
  WITNESS REGISTER                                                             
 Charles Campbell                                                              
 3020 Douglas Highway                                                          
 Juneau, AK  99801                                                             
  POSITION STATEMENT:   Opposed to SB 60                                       
 Dean Guaneli                                                                  
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
  POSITION STATEMENT:   Opposed to SB 60                                       
 ACTION NARRATIVE                                                              
 TAPE 97-19, SIDE A                                                            
 Number 000                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:39 p.m.  Senators Taylor, Miller and Parnell were                  
 present.  The first order of business before the committee was SJR
       SJR 17 NO ALASKA CHRISTMAS TREES FOR FED CAPITAL                       
  MR. JOE AMBROSE , staff to Senator Taylor, sponsor of SJR 17, read           
 the following sponsor statement into the record.                              
 SJR 17 was introduced to call national attention to the callousness           
 of the Clinton Administration in asking the people of Southeast               
 Alaska to provide Christmas trees from the Tongass National Forest            
 to decorate the federal capital.                                              
 This resolution recognizes that what would normally be an honor is            
 instead an affront to the working people of Southern Southeast,               
 thousands of whom have been made jobless by the anti-timber                   
 policies of the Clinton Administration.                                       
 To further compound this insult, the Clinton/Gore Administration is           
 asking school kids, Boy Scouts, Girl Scouts, timber-dependent                 
 communities and their elected leaders to pay the cost of                      
 participating in what can only be termed an insensitive farce.                
 This is the same administration that ignored the efforts of the               
 Alaska congressional delegation and the Alaska State Legislature to           
 protect the livelihoods of the workers, families and towns of the             
 This is the same administration whose policies led to the closure             
 of the region's two pulp mills and largest saw mill, costing                  
 thousands of jobs.                                                            
 The three US Forest Service supervisors of the Tongass National               
 Forest say the opportunity to provide trees to decorate the                   
 nation's capitol is "a great moment for Alaska."                              
 SJR 17 makes it clear the Twentieth Alaska State Legislature                  
 considers this "opportunity" to be insensitive, callous and                   
 insulting.  It calls upon President Clinton and Vice President Gore           
 to find another source for its 1998 Christmas decorations.                    
 Number 051                                                                    
  CHAIRMAN TAYLOR  noted the federal legislation that resulted in the          
 Ketchikan Pulp Corporation (KPC) closure, as well as the Sitka pulp           
 mill and Wrangell sawmill, contained two options; one allowed a               
 modest amount of logging to continue.  President Clinton chose the            
 other option which prevents families from continuing to work in the           
 timber industry, and by doing so, expended $110 million of taxpayer           
 dollars sent to Southeast Alaska in the form of economic disaster             
 relief.  Since SJR 17 was filed, the U.S. Government has settled              
 the KPC's claim for wrongful breach of the 50-year contract for               
 $140 million, $25 million in timber stumpage credits, and $5                  
 million in additional credits; therefore the total cost of the                
 closure, caused by the Clinton Administration has been $280                   
 million.  Another pending lawsuit out of Sitka may cost U.S.                  
 taxpayers $500 million.  None of that money will benefit the                  
 timber-dependent families who lost their jobs.  Chair Taylor noted            
 a similar resolution passed the House that morning by a vote of 34            
 to 5.                                                                         
  CHAIRMAN TAYLOR  noted Senator Ellis' arrival.                               
 Number 110                                                                    
  SENATOR MILLER  moved SJR 17 out of committee with individual                
 recommendations.  There being no objection, the motion carried.               
          SB  60 ADVISORY VOTE ON CAPITAL PUNISHMENT                          
  JOE AMBROSE , staff to Senator Taylor, sponsor of the measure, read          
 the following sponsor statement into the record.                              
 Senate Bill 60 is intended to seek the advice of the voters of                
 Alaska on the controversial issue of capital punishment.                      
 Passage of SB 60 will not impose the death penalty in Alaska.  It             
 simply places on the ballot the question:  "Shall the Alaska State            
 Legislature enact a law providing for capital punishment for murder           
 in the first degree and establishing procedures for the imposition            
 of capital punishment that are consistent with the United States              
 Constitution as interpreted by the United States Supreme Court?"              
 For years opinion poll after opinion poll have reflected the desire           
 of the people of Alaska to have the death penalty available as an             
 option in this state.  SB 60 seeks to employ the ultimate poll,               
 that of the ballot box, in a non-binding vote.                                
 Given the option of a death penalty or life in prison without                 
 parole, 550 Alaskans polled statewide in March, 1996, favored the             
 death penalty by a 62% margin, with 35% choosing life without                 
 parole.  It is especially significant that only 5% of the                     
 respondents said they were undecided.                                         
 Support for the death penalty crossed all demographic lines,                  
 including location, gender, age, party affiliation, employment                
 status and length of time in the community.                                   
 There are those who argue that the people of Alaska are somehow               
 unqualified to render advice on this issue.  They argue that the              
 ballot question itself is too "simplistic."                                   
 Alaska has one of the youngest, best educated and well-read                   
 populations in the nation.  Judging from the campaign already being           
 mounted against SB 60, the organized groups opposed to capital                
 punishment will most certainly conduct a vigorous campaign when               
 this issue reaches the ballot.  Alaskans will cast votes based on             
 information, not emotion.                                                     
 Issues such as the cost and effectiveness of capital punishment               
 will be part of any campaign on the ballot question and will need             
 to be explored at length if the voters advise the 21st Alaska State           
 Legislature to pursue this issue.                                             
 For now, we are talking about placing an advisory vote on the                 
 ballot, at a cost of approximately $3,000.                                    
  MR. AMBROSE  suggested, although several fiscal notes have been              
 submitted to the committee, the only valid one is from the Division           
 of Elections.  It contains the cost of placing the question on the            
 ballot.  If the issue is approved and passed by the Twenty-first              
 Alaska Legislature, the other fiscal notes may reflect the costs of           
 establishing a death penalty.                                                 
 Number 165                                                                    
  MR. CHARLES CAMPBELL  discussed his 47-year background in criminal           
 justice matters.  While serving as the Director of Corrections he             
 became deeply concerned about the death penalty while researching             
 and drafting a position paper on the subject for DHSS in 1981.                
 After investigating the death penalty thoroughly he became, and               
 continues to be, adamantly opposed to it and believes it to be a              
 deplorable, indefensible relic of the Dark Ages.  Rather than                 
 requesting advice from constituents, constituents deserve                     
 legislators' considered wisdom and advice to them.  The majority of           
 the voters of the State hold their views based on serious                     
 misinformation, especially in regard to current sentences for first           
 degree murder and the costs and deterrent factor of the death                 
  MR. CAMPBELL  stated the death penalty does not deter those who are          
 most likely to commit violent crimes and one of the most                      
 comprehensive studies shows the death penalty is more likely to               
 incite, rather than deter, crime.  It is the most expensive and               
 least cost-effective of criminal sanctions; has the potential for             
 hampering law enforcement and criminal prosecution; is destructive            
 to the families of murder victims and requires them to remain in a            
 state of bitterness and uncertainty during long years of appeals;             
 and is racially and culturally biased with the potential to arouse            
 divisive, bitter, and destructive conflict among the people of                
 Alaska.  More than 3,000 people are on death row in the United                
 States today and another 200 people are sentenced to death each               
 year.  There is no way the number executed each year will approach            
 that number.  Correctional systems nationwide have a ticking time             
 bomb created by the exorbitant cost of providing additional                   
 manpower and special confinement required by death row inmates.               
 Since 1976, 300,000 willful homicides have been prosecuted;                   
 approximately 360 people have been executed during that period.               
 The one murderer in 1,000 who was executed was, most likely, not              
 the most deserving.  Death penalty cases are not necessarily chosen           
 on the basis of how heinous and terrible the crime is; rather by              
 how expediently the prosecution might go forward, or for political,           
 financial and/or defense considerations.  The argument of "just               
 desserts" is not valid.                                                       
  MR. CAMPBELL  continued.  With very few obscure exceptions, no other         
 country in the western world tolerates the death penalty.  The                
 Territorial Legislature of Alaska abolished the death penalty                 
 almost 40 years ago and Alaska now has extremely tough criminal               
 sanctions.  The typical sentence for aggravated first degree murder           
 is 99 years without parole.  Studies show that 75 to 80 percent of            
 Americans do not oppose the death penalty, but national studies               
 show that when given the option of life without parole, the 75-80             
 percent majority is reduced to a minority.                                    
  MR. CAMPBELL  discussed comparative data regarding death penalty             
 laws and crime rates in other states.  He also referred to the                
 costs associated with the death penalty, and criticized the ballot            
 question contained in SB 60 because it is an unfair question to               
 present to seriously misinformed voters.  He noted death penalty              
 opponents do not have adequate resources to mount a campaign to               
 fully inform voters.  Mr. Campbell expressed concern that SB 60 is            
 part of a strategy to seduce legislators who are troubled by this             
 issue into making what appears to be an easy vote, and that this              
 bill is designed to get the "camel's nose under the tent."                    
 Number 319                                                                    
  CHAIRMAN TAYLOR  commented he believes the State of Florida was              
 correct in executing Ted Bunde and that the State of Washington               
 adopted the death penalty after releasing a murderer to a work                
 program, he then murdered three more people. Senator Taylor                   
 discussed the Adam Walsh case, and noted the murderer had been                
 released by the State of Texas after murdering his mother and                 
 father, he then went on to kill another 35 to 40 people before                
 being apprehended.                                                            
  MR. CAMPBELL  responded he could not agree more that legislation to          
 prevent such people from being released is important, but he does             
 not agree execution is the answer.  He noted the State of Florida             
 was also influenced by the fact that there was a 90 percent chance            
 that James Adams was innocent, yet he was executed.  Other studies            
 show that 23 people who were executed were innocent.  He said moral           
 outrage is justified toward murderers, but people must think                  
 carefully about their responses to that outrage.                              
 Number 358                                                                    
  CHAIRMAN TAYLOR  asked Mr. Campbell to provide the committee with a          
 copy of the report he cited about the 23 innocent people who were             
 executed, and noted a judge in Michigan has done a full review of             
 those cases and discounted the report.   MR. CAMPBELL  said the               
 information was in the Stanford Law Review and offered to provide             
 a copy to the committee.  Mr. Campbell added there is no indication           
 the death penalty is an effective deterrent against crime and a               
 recent national survey of chiefs of police revealed they consider             
 the death penalty the least effective of all criminal sanctions.              
 He repeated there are other ways to prevent people like Ted Bunde             
 from being released from prison.                                              
 Number 385                                                                    
  SENATOR MILLER  said, assuming the death penalty is abolished in the         
 United States, and the 200-per-year new death row inmates get life            
 sentences instead, those prisoners will be putting stress on the              
 prison system in different ways.   MR. CAMPBELL  noted   46 or 47             
 people were executed in 1996.  The addition of that number of                 
 prisoners in the system is insignificant.  Prisoners serving life             
 sentences without parole are typically easy to manage and usually             
 accept a job to pay restitution.  Death row prisoners, however, are           
 a huge administrative problem.  They require 24-hour supervision              
 because of the likelihood of suicide, and many of those prisoners             
 appeal their cases.                                                           
  CHAIRMAN TAYLOR  asked the percentage of death row inmates who had           
 murdered previously.   MR. CAMPBELL  did not have that data, but              
 suspected a fairly significant number had.   CHAIRMAN TAYLOR                  
 believed that 9 to 15 percent were previously convicted for murder,           
 released, and murdered again.   MR. CAMPBELL  thought most people             
 sentenced to death have previous violent crime records.                       
 Number 420                                                                    
  DEAN GUANELI , Assistant Attorney General, Department of Law,                
 testified in opposition to capital punishment for four reasons.               
 First, capital punishment has a disproportionate impact on                    
 minorities.  Nationwide, non-whites are executed at a higher rate             
 than whites.  Even in Alaska's territorial days, natives and                  
 minorities were executed at a much higher rate.                               
  CHAIRMAN TAYLOR  asked Mr. Guaneli if he has any evidence to                 
 indicate there is a proportionally higher rate of executions within           
 a given ethnic group, compared to the number of murders within that           
  MR. GUANELI  said studies have been conducted that compare how               
 capital punishment is imposed against minorities depending on the             
 ethnicity of the victim.  Those studies indicate when a racial mix            
 between the defendant and the victim exists, the death penalty is             
 imposed at a higher rate.                                                     
  CHAIRMAN TAYLOR  read the following excerpt from an article by               
 Dudley Sharp, written in the Texas Exchange (March 10, 1997):               
 "A crucial point is that capital murders and non-capital murders              
 are two distinct categories.  Whites are, overwhelmingly, the                 
 primary victims in violent crimes relevant to capital cases.  When            
 combining that fact with the level of aggravation of the murder and           
 the criminal background of the murderer, there is no race-of-the-             
 victim effect showing a juror or prosecutor preference to white               
 victims in capital cases.  A reading of the appellate record finds            
 that this fact was established conclusively by the federal courts             
 in 1983, 1985, and 1987 in McClesky v. Georgia and was reinforced             
 by Smith College professors Rothman and Powers in their extensive             
 1994 study."                                                                  
 Chair Taylor explained Mr. Sharp's article was in response to the             
 American Bar Association's resolution calling for a moratorium on             
 death penalty executions.  Mr. Sharp noted, in his research, he               
 could find no studies that verify racial disparity.  Chair Taylor             
 asked Mr. Guaneli to provide information to back up his statement.            
  MR. GUANELI  agreed to do so.                                                
  MR. GUANELI  said the second reason the Department of Law opposes            
 capital punishment is because the criminal justice system is not              
 perfect, and as Mr. Campbell indicated, innocent people have been             
 executed.  Once an execution takes place, there is no push for a              
 thorough investigation of the case.  With the advent of DNA testing           
 techniques, it has been discovered that a number of people                    
 convicted of crimes, primarily rape, were later determined to be              
 innocent after evidence underwent DNA testing.                                
 Number 489                                                                    
  SENATOR MILLER    commented those same techniques can now be used to         
 provide conclusive evidence of guilt or innocence prior to                    
 conviction.  MR. GUANELI  responded DNA techniques, when such                 
 evidence exists, provide a much higher confidence in the result,              
 but the cases he referred to involve people convicted years ago on            
 eyewitness accounts, and years later a piece of evidence tested for           
 DNA proved them innocent.  Those situations make for less                     
 confidence in cases where no DNA evidence exists.                             
  MR. GUANELI  stated the third reason for opposition to capital               
 punishment is that a death penalty would tend to skew the case law            
 that prosecutors have to work with.  Death penalty cases are                  
 treated differently by the courts and the rulings on evidence and             
 procedure are scrutinized much more carefully.  The rulings that              
 come out of death penalty cases tend to get applied in all other              
 cases in the criminal justice system, creating difficulties in                
 obtaining convictions in other types of cases.                                
  MR. GUANELI  explained the fourth reason for opposition is the cost.         
 An execution is expensive to carry out, and the entire legal                  
 process is lengthy.  The fiscal notes that accompany the bill have            
 been consistent in cost for many years, through several                       
  CHAIRMAN TAYLOR  again quoted Mr. Sharp's article:                           
 `The ABA and others cry "racism!" when there is no evidence of                
 racism in the implementation of the death penalty since Furman v.             
 Georgia in 1972. In those cases where the race/ethnicity of the               
 murderer is known, 56 percent of those executed since 1977 have               
 been white, 38 percent black.  Yet, blacks have committed 47                  
 percent of the murders, whites 38 percent.  Furthermore, whites are           
 executed 15 months quicker than blacks.  In fact, since 1929 white            
 murderers have been more likely to be executed than black                     
 Chair Taylor stated, if the figures in the article are accurate, an           
 inverse discrimination exists in relation to the death penalty.               
  MR. GUANELI  replied he was not prepared to dispute particular               
 numbers or the article but would provide the committee with                   
 statistics at a later date.                                                   
  MR. GUANELI  concluded by saying, "Even if we overlook the                   
 objections to the death penalty, then at least shouldn't capital              
 punishment stop murders from occuring?  As Mr. Campbell indicates,            
 it doesn't.  Studies show there is no deterrence to murder.  First-           
 degree murder in Alaska is treated severely.  First-degree                    
 murderers in Alaska receive sentences, on average, exceeding 70               
 years in Alaska.  The kinds of cases that you mentioned in response           
 to Mr. Campbell's testimony, the kinds of really horrible cases               
 where someone has committed a murder in one state, then released              
 and committed another murder - that doesn't happen in Alaska.  With           
 average sentences of 70 years, someone's going to serve 40 or 50              
 years.  They're going to be released in their 60s or 70s, after a             
 point in time when they are a danger to the public but before a               
 point in time when they start running up big medical bills for the            
 Department of Corrections.  Those kinds of things, I do not                   
 believe, at least in our experiences, would happen in Alaska with             
 the kinds of sentences that murderers receive, and I would                    
 reiterate Mr. Campbell's point that the decision of the Territorial           
 Legislature to do away with capital punishment in Alaska was the              
 correct one.                                                                  
 In terms of the advisory vote on this matter, I think that asking             
 a single question only tends to deprive the voters of additional              
 choices that they might respond to.  I'm not saying that voters are           
 not intelligent or not capable of making decisions based on                   
 adequate information, but what I am saying is I guess I have to               
 disagree with my friend, Mr. Ambrose, who said that voters will               
 vote based on information, not emotion.  I think there's a tendency           
 for voters to vote on information, to vote based on their                     
 recollection of the kinds of really outrageous cases that you                 
 mentioned.  Alaska has had its Ted Bundes.  His name was Robert               
 Hanson - he killed a number of prostitutes in Anchorage several               
 years ago.  He's now serving a multiple 99-year sentence.  We have            
 had our really outrageous murders of little children, where sexual            
 offenses were involved.  Kirby Anthony is one name that springs to            
 mind - again, someone serving multiple 99-year sentences.  These              
 people will never see the light of day but the advisory vote may              
 very well be taken as a mandate by the Legislature when, in fact,             
 I don't believe the voters can adequately consider the kind of                
 information that we've been discussing today - the kind of                    
 information where there is some dispute over numbers involving the            
 fair application of the death penalty, the effectiveness of the               
 death penalty, the cost of the death penalty.  I think those                  
 matters are something that the Legislature is particularly equipped           
 to deal with through the give and take of testimony like this.                
 That concludes my testimony."                                                 
 Number 575                                                                    
  SENATOR PARNELL  commented the debate on SB 60 is whether or not to          
 have an advisory vote - not whether or not to establish capital               
 punishment.  He said the opposition he has heard to an advisory               
 vote is that asking a single question deprives voters of the                  
 information they need to make an intelligent choice.  He asked Mr.            
 Guaneli if the Administration has proposed language for an advisory           
 vote, or additional items to be added to existing language.   MR.             
 GUANELI  replied voters do not have the same level of information             
 available to the Legislature, and the vote could tend to be swayed            
 by the most recent headline in the Anchorage Daily News about the             
 most recent murder that may have occurred.  It's a matter of                  
 whether the vote is based on information or emotion and with this             
 particular issue, he believes votes tend to be based on emotion.              
 He said the Department of Law will consider providing amended                 
 language to the vote, but is not prepared to do so at this time.              
 TAPE 97-19, SIDE B                                                            
  SENATOR PEARCE  asked where prisoners with multiple 99-year                  
 sentences are serving their sentences.   MR. GUANELI  answered most           
 are housed at either Spring Creek or in Arizona.   SENATOR PEARCE             
 said legislators have been lead to believe those same prisoners are           
 the ones who have caused many internal problems in the prison                 
 system, and the cost of incarceration for those prisoners is higher           
 than average.  She questioned Mr. Campbell's assumption that                  
 prisoners with life sentences are easier to manage and are our                
 model prisoners.  Senator Pearce commented that although capital              
 punishment is an emotional issue, the emotional impact on a victim            
 and victim's family must be considered too.  She agreed the                   
 electorate responds to headlines, but questioned whether that is              
  MR. GUANELI  replied if people vote in response to headlines, then           
 the editors of newspapers tend to set public policy, and hard                 
 decisions need more in-depth review than what is provided in                  
  CHAIRMAN TAYLOR  said he does not know of any group of offenders,            
 anywhere in the world, whose cases receive the same exhaustive                
 scrutiny that death row cases receive in the United States.  New              
 federal laws reduce some of the scrutiny but still require 17 major           
 steps, and the appeals and reviews take, on average, 11 years.  He            
 questioned whether those cases would receive such an extensive                
 review but for the death penalty.  Prisoners with life sentences              
 most likely do not receive that same level of scrutiny, so those              
 prisoners who may be innocent will be kept in a jail cell for life.           
 He asked what the criminal justice system should do when an                   
 aggrieved family member of a victim takes revenge when the offender           
 is released.                                                                  
  MR. GUANELI  repeated since the average first degree murder sentence         
 in Alaska is 70 years, the likelihood of vigilantism by the                   
 victim's family after decades have passed is remote.                          
  CHAIRMAN TAYLOR  thanked Mr. Guaneli for the discussion.   MR.               
 GUANELI  affirmed that the Department of Law is opposed to an                 
 advisory vote.                                                                
  SENATOR MILLER  moved SB 60 out of committee with individual                 
 recommendations.  Senator Ellis objected.  The motion carried with            
 Senators Pearce, Miller, Parnell, and Taylor voting "yea," and                
 Senator Ellis voting "nay."                                                   
  CHAIRMAN TAYLOR  adjourned the meeting at 2:35 p.m.                          

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