HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER CHAIRMAN KOTT announced that the committee would continue its hearing on House Bill No. 75, "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 when certain of those murders are committed against children; 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." Chairman Kott asked whether the sponsor had additional comments. Number 0080 REPRESENTATIVE BEVERLY MASEK, Alaska State Legislature, sponsor, thanked the chairman but indicated she would rather hear the public testimony. Number 0135 CYNTHIA STROUT, Attorney at Law, testified via teleconference from Anchorage. A criminal defense attorney since 1982 and president of Alaskans Against the Death Penalty, Ms. Strout said she would focus on two areas. First, current laws sufficiently protect the public. She is aware of no case being overturned in our court system where people have received sentences of 99 years. She believes the courts are well able to provide sentences for people who commit homicides under these conditions that will ensure that they are not released back into their communities. Second, somewhat contrary to the intent, under this bill the state could execute people 16 years old or younger, including a 15-year-old who killed a 12-year-old while playing Russian roulette, for example, or a 7-year-old who killed his 4-year-old brother, as in a recent case. Ms. Strout noted that the previous week's newspaper discussed recent studies showing that prison populations are full of people who were abused as children. Ms. Strout asked whether it wouldn't be better to put the necessary funds to enact this bill into preventing child abuse, thereby stopping that cycle of violence. Number 0407 CHAIRMAN KOTT commented that when he had posed the question the previous day, he was inquiring whether anyone was aware of someone in Alaska sent to prison for life, then later cleared because of finding out that person wasn't the perpetrator of the crime. MS. STROUT referred to an article that she believes the committee has, in which studies indicate that when Alaska had the death penalty, in territorial days, there were serious factual questions about the guilt of two people who were executed. She believes that other states' history should be a guide; in Illinois, 11 people have been released from death row, for example, based on "factual innocence." Alaska, with no death penalty, has nothing to correlate with that. However, it should give people pause. Number 0528 KEVIN McCOY testified via teleconference from Anchorage in opposition to HB 75. An Alaska resident since 1976, he is married and has raised two children, his most precious connection to this world and this state, he told members. The best teachers have been those who teach by example, Mr. McCoy pointed out. He is most troubled by this proposal because of the example that it sets, trying to teach people, by killing, that killing is wrong. Although he would be devastated if something happened to his children, this bill would not remedy that. He recalled testimony by Marietta Yeager (ph) a few years ago against a death penalty bill; her daughter had been taken from a campground and killed, and her comments had really made Mr. McCoy think about the issue. He cannot endorse the death penalty, he told members, because it wouldn't bring the child back. Furthermore, he wouldn't want a memorial for his child to be the death of another person. Mr. McCoy endorsed all the comments made the previous day and urged members to vote against this bill. It would cost too much, it wouldn't work, and it seems there are more serious budgetary concerns, which would have more of a direct, positive impact on Alaskans, he concluded. Number 0691 M.J. HADEN testified via teleconference from Anchorage in opposition to the death penalty. A paralegal with the federal public defenders office, she moved to Alaska last year from Georgia, where she had also worked for the federal public defenders office. She noted that her testimony is along the lines of Mr. Curtner's testimony regarding his first-hand experiences with the death penalty in Ohio, heard the previous day. However, her own experience, both at the trial level and at the post-conviction stage, was in Georgia, which, unlike Ohio, does execute defendants sentenced to death. Since 1976, when the death penalty was reinstated there, the state has executed 23 people. In the past 20 years, three individuals sentenced to the electric chair were proven innocent. Currently, 123 people are on Georgia's death row. MS. HADEN told members that she has witnessed so many pitfalls in the implementation of the death penalty in Georgia that it would be difficult to share them all. These include defendants represented by lawyers with no criminal law experience; trials where the appointed attorney only met with the defendant a couple of days before trial was to begin; cases where vital exculpatory evidence was discovered to have been withheld from defense counsel; and cases where witnesses, including law enforcement officers, were found to have lied. Furthermore, because the decision of whether to seek the death penalty is exclusively that of the district attorney in Georgia, she has seen the death penalty used as a political ploy in election years. She said she can't begin to recount the disparity and discrimination surrounding Georgia's use of the death penalty. MS. HADEN shared two memorable moments in her career. One was her first visit to Georgia's death row. She had been studying her case file, reading the transcripts and reviewing the graphic evidence, and she didn't know what to expect from this person. When he came in, he was not a monster or a devil, she discovered, but a human being who laughed, cried, and got angry like anyone else. The second memory was from the end of a trial, awaiting sentencing for a client who had been found guilty. Waiting in a room with his mother and brother to see how the 12 jurors had voted, she could see the pain on their faces, and the love they still had for their family member, despite what he might have done. "We're talking about putting to death sons and daughters, sisters and brothers, mothers and fathers," Ms. Haden concluded. "We're talking about our government killing human beings, and that is wrong." Number 0992 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AKCLU), testified via teleconference from Anchorage in opposition to HB 75, noting that the AKCLU is a nonprofit, nonpartisan organization with statewide membership, an affiliate of the American Civil Liberties Union (ACLU) whose mission is to preserve and defend the guarantees of individual liberties found in the Bill of Rights and in the Alaska constitution. MS. RUDINGER told the committee that while there is no good reason for the passage of HB 75, there are many reasons for its defeat, including constitutional and economic factors; the racially discriminatory fashion in which the death penalty is allocated; and the fact that people have been sent to death row only to later be proven innocent. She believes that most people would say the government is inefficient and has too much power already. However, adoption of the death penalty would give the state the ultimate power of deciding who lives and who dies. MS. RUDINGER emphasized the proven racial disparities in the charging, sentencing and imposition of the death penalty. In 1990, the U.S. General Accounting Office reported to Congress that in this nation's trial courts, the killing of a White person is treated much more severely than the killing of a person of color. For example, 80 percent of the victims of the 313 people executed between January 1977 and the end of 1995 were White. MS. RUDINGER next addressed erroneous convictions resulting in death sentences, which she said have occurred in virtually every jurisdiction in the nation. Advances in scientific technology, such as DNA testing, have exonerated people on death row, and crucial testimony has sometimes later been proven false. Ms. Rudinger cited two examples. The first was a Florida couple convicted of a murder; although the husband was executed, the wife's conviction was vacated when it was proven that the crucial evidence against them had consisted mainly of the perjured testimony of an ex-convict who had turned state's witness to avoid a death sentence himself. In the second example, reported in the Anchorage Daily News in February, a man on death row in Illinois was exonerated due to the efforts of students at Northwestern University. Ms. Rudinger concluded, "All governments do make mistakes. Please, do not give our state government the power to make a mistake by executing an innocent person." Number 1259 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He said he is personally opposed to the death penalty but would address the nuts and bolts of HB 75; in addition, he would try to provide written comments about the problems he sees with the bill. MR. McCUNE pointed out that because this bill does not call for an advisory vote, death penalty prosecutions could begin immediately after it became effective. In addition, when he first saw the bill's title, he expected a statute making an intentional killing of a child an offense. However, on page 3, lines 20 and 21, for example, it makes all first-degree murders capital offenses. This bill greatly expands the power of Alaska statutes to have death penalties for other first-degree murders, in addition to the murder of a child, to be punished by death. MR. McCUNE urged members to consider that in recent years the legislature has been asked to expand murder in the first degree, to include situations where someone knowingly engages in conduct that is not necessarily intentional. Furthermore, accomplices who do not cause the death of a person can be found guilty of murder in the first degree. MR. McCUNE noted that the bill sets up a sentencing procedure. He called attention to page 8, lines 21 through 23, then explained that if somebody is convicted of any first-degree murder, HB 75 would require that person to go to the sentencing phase for a death penalty, even though the victim of the offense was not a child. Mr. McCune said that is a very odd provision that doesn't seem to fit within the intent of the bill, and he believes that the committee ought to take a close look at it. MR. McCUNE discussed the aggravating factors, referring to pages 9, beginning at line 31, and continuing to page 10, line 8. Noting that this section finally mentions children as victims, he expressed concern that instead of listing the aggravating factors numerically, and saying that the jury must find one of the listed aggravating factors, the bill says a penalty may be imposed if aggravating factors are found. He believes that the intention of the bill is that all the aggravating factors have to be met before a death penalty could be imposed. However, it could be interpreted that if any of the aggravating factors is found, the death penalty could be imposed. MR. McCUNE next expressed concern that only four mitigating factors are listed. In every other type of criminal case, there is a much longer list of mitigating factors that the judge can take into account in deciding what sentence to impose. These mitigating factors are found in AS 12.55.151(d). Among them is the defender who was an accomplice in the case, but played a minor role; an aged defendant who acted under a mental infirmity; the existence of serious provocation from the victim of the offense; and, most important - which Mr. McCune believes absolutely should be included as a mitigating factor that the jury, in this case, could take into account - is whether the offense was among the least serious of the offenses set out in the statute. However, a jury would be powerless to take that into account, because it is not included in the mitigating factors that are in this bill. MR. McCUNE drew member's attention to page 8, line 28. He explained that he is concerned about the provision that says that evidence [as to any aggravating or mitigating factor] can be admitted "regardless of the admissibility of the evidence under the rules of evidence." He said he understands that in a sentencing proceeding hearsay can be allowed if a person has an adequate change to rebut it. However, he believes that this provision goes much beyond that, as it would allow evidence that was illegally seized to be used in the penalty phase in a death penalty case. MR. McCUNE advised members that the final concern regards merit appeals. On page 10, lines 20 through 31, it says that the sentence review procedure is set up in the Alaska Supreme Court. He pointed out that sentence review is distinguished from issues like whether the trial judge made errors in admitting evidence, whether illegally seized evidence was admitted, or whether a confession without the benefit of Miranda rights was admitted against the defendant. These are types of merit appeal issues that the Alaska Court of Appeals currently handles. In this bill, it isn't clear which court - the Alaska Court of Appeals or the Alaska Supreme Court - would review the merit issues. Number 1683 REPRESENTATIVE KERTTULA responded that the section on page 8, line 28, about admitting testimony regardless of the admissibility of the evidence, had bothered her, as well. She asked whether Mr. McCune knows what happens in sentencing phases in other states on that issue. MR. McCUNE replied that although he hasn't studied other state law cases, he has seen federal cases where, for example, the United States Supreme Court has overturned death sentences because of admissibility problems in the evidence. He said he believes there is a U.S. Supreme Court case in which the jury heard prejudicial types of statements that had swayed them. With this provision, he'd be afraid that the trial judge would think that he or she didn't have the power to apply Evidence Rule 403 and find that if the probative value of the evidence was not outweighed by the prejudicial effect, the judge would be powerless to remove that evidence from the consideration of the jury. Number 1755 REPRESENTATIVE CROFT referred to page 8, line 22, which says that if, after a trial by jury, a defendant is convicted of a capital offense, the court shall conduct a separate proceeding. He asked whether the state would run all first-degree murders through this, even if there wasn't an allegation that there was a child involved. MR. McCUNE replied that it is the way the bill is currently written, which is odd to him, because the title leads him to believe it would involve just murders of a child. As written, first-degree murder is a capital felony, and for a capital felony, there must be a separate sentencing proceeding before a jury. Number 1821 BARBARA BRINK, Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage about the costs. She said she believes that the fiscal note is self-explanatory. The figures that seem high are because of the unique requirement of "capital litigation." Capital punishment in Alaska, as in every other state, will be more expensive than convicting and sentencing people to life imprisonment without the possibility of parole, she explained. These costs are not what is commonly believed to be the result of some frivolous and lengthy appeal process, but, rather, the result of the constitutional uniqueness of the death penalty cases, and the safeguards that have been set up by the United States Supreme Court. Ms. Brink expanded on that: Basically, those safeguards require that every jury be given very clear guidelines on sentencing, in exclusive provisions defining what are aggravating and mitigating circumstances. A defendant is constitutionally entitled to have two jury trials. The first jury trial is to establish their guilt or innocence, and then, if the person is convicted, they are entitled to a second jury trial to determine whether or not they should receive the death penalty. Constitutionally, every defendant is granted automatic oversight protection by the state supreme court, and all of these constitutional safeguards translate into what has been described as "super due process." The result of that heightened scrutiny - because we're so concerned about who gets convicted, and we don't want any bad convictions - is that there is a much more extensive jury selection procedure at any capital trial. There is a fourfold increase in the numbers of motions that are filed in capital cases than in normal murder cases without possibility of the death sentence. As I've pointed out, there's a longer, dual sentencing process. That translates into more investigation needed, more expert testimony needed, and more lawyers who specialize solely in death penalty litigation. That, combined with the automatic mandatory appeals, has resulted in some dramatic costs. We don't have to operate in a vacuum, and this isn't just my speculation about what it's going to cost. ... There've been a myriad of studies conducted across the Lower 48 in those states that do have the death penalty, and every one of those studies concludes that it is much more costly to have a death penalty than not to have one. The most comprehensive study that's been conducted so far was done by Duke University in May of 1993, and it simply studied North Carolina. In North Carolina, they found that the death penalty cost $2.16 million dollars, per execution, over the cost of a non-death-penalty murder case. They also determined that the bulk of that cost did occur at the trial level, not the appellate level. A study in California found that in California the state spent $90 million annually over and above the ordinary costs of noncapital litigation to have a death penalty. They also found that $78 out of that $90 million was incurred at the trial level. Florida did a study in 1988 where they found that they've spent $57 billion dollars on the death penalty between 1973 and 1988, and yet only achieved 18 executions. Therefore, it cost them about $3.2 million to try and convict and execute a single person. In Texas, a study was done in 1992, and there they found that the average death penalty case cost the taxpayer $2.3 million, which was three times the cost of imprisoning someone in a single cell, at the highest level of security, for 40 years. I'd also wanted to point out that even though Florida spent $3.2 million per execution, they've (indisc.) a budget crisis two years ago, similar to what we're looking at; the department of correction's budget was cut mid-year, and that resulted in the early release of 3,000 prisoners from the department of corrections. In Texas, the costs are saved by giving Texas prisoners so much "good time" that the average Texas prisoner only serves 20 percent of their imposed sentence; and it should also probably mean, though, ... that even though Texas has a death penalty - has had one for years, and has executed the most number of people in the United States - its murder rate is among the highest in the entire country. There's some more current data, too, because other states have decided that this is becoming a very costly proposition to them. In 1998, a new report from the Nebraska judiciary committee concluded that any savings that they had from executing an inmate were far outweighed by the financial legal costs; and the conclusion of that report was a recommendation, or a belief, that the current death penalty was not in the best interests of Nebraskans. The federal government has also studied the cost of the death penalty. There was a report from the judicial conference on the United States; that report concluded that defense costs were four times higher in any case where the death penalty was brought than ... when death was not sought. It also concluded that prosecution costs were 60 percent higher than the defense costs, even without adding in all the money provided by law enforcement agents doing investigations. A recent study in Louisiana - and that study was done in 1998 - convinced the prosecutor that life in prison would be a better solution than the death penalty. He said it's a matter of simple economics: It just costs too much to execute somebody. You might remember that a couple of years ago New York was considering whether or not to impose a death penalty; they have recently done so. But in the studies that they did, to decide whether or not to implement the death penalty, they concluded it was going to cost them $118 million a year. The first death row inmate in New York, a gentleman by the name of Dale Harris (ph), the entire, total costs of his case are going to be $3 million; and a recent columnist decided that after spending $3 million for a capital case, they really had bought themselves nothing that they couldn't have gotten with a sentence of life without parole. ... Washington State is also looking at the cost of their death penalty. They had determined, according to a 1999 study, that a single death penalty trial approaches $1 million. The county - who down in Washington is responsible for providing those fees - had to let one government position go unfilled; they've eliminated (indisc.); they've drained a $300,000 contingency fund; they eliminated all capital improvements; and a sheriff's request to replace a van ... for prisoners, which has broken down, has been canceled. So, in those states, the smaller jurisdictions have to pay for it, and are having a very ... hard time of doing it. The state of Ohio also did a recent study; this is also from 1999. They spent $1.5 million to kill one person; he actually was mentally ill and asked to be executed, and didn't even want any appeals. So, they're finding it to be a pretty high cost, as well. Number 2164 REPRESENTATIVE CROFT referred to page 2 of the fiscal note, where it states the assumption that this would only be done where the victim was under the age of 18. He agreed with Mr. McCune that as the bill reads, on page 3, murder in the first degree is a capital felony, punishable under AS 12.55.125, which lists these "sort of aggravated first-degree" offenses, including killing a police officer, having done it before, or clear and convincing evidence of torture. He asked Ms. Brink how she would change the fiscal note if they take the bill at its word and include every aggravated offense, every "mandatory 99" trial, that will be held in Alaska. MS. BRINK explained that the fiscal note assumption was that the bill didn't mean what it says and would be corrected in drafting. As to Representative Croft's question, the calculation would be difficult to do off the top of her head. For every defendant who currently gets sentenced to the 99 years, they would do an additional jury trial, which she doesn't believe would be more than a couple of cases per year. It would cost her staff additional investigation, witness testimony and, mostly, time, as a jury trial is much more time-consuming than is a hearing before a judge. It is not the same as figuring the cost of capital litigation, she pointed out. Number 2289 REPRESENTATIVE CROFT said that Ms. Brink had made assumptions to bring the fiscal note down, to make it a conservative number. He asked whether Ms. Brink had used the studies she had cited to make the fiscal note. MS. BRINK affirmed that. She had also consulted with Rich Curtner, the chief federal defender for Alaska, who had testified the previous day, she said, although he had not identified himself as such. Because Mr. Curtner is one of the few people in Alaska with capital litigation experience, she had relied on figures and information that he had at his disposal. MS. BRINK reported that she also had looked at the American Bar Association standards; they have published exclusive guidelines for the appointment and performance of counsel in death penalty cases. They require, specifically, that in any case where the death penalty is sought, two qualified trial attorneys must be assigned to represent the defendant. Number 2337 REPRESENTATIVE CROFT remarked that he just wanted to get on the record that this is, if anything, a conservative fiscal note. He then stated his understanding that as the bill is drafted, it is a "sort of superfluous jury trial" if the victim is known to be over the age of 18. However, it says that "the following aggravating factors may be considered"; if construed to mean that other aggravating factors could be considered, then this is no longer a superfluous trial. He asked whether, under that reading, all of these "not mandatory 99s" would become death penalty cases. MS. BRINK agreed it could be read that way, although she believes they would try to read it in a much more narrow sense. She pointed out that in addition to the facts of whether the child who died was under 18, the jury has to decide what punishment is appropriate; the purpose of the sentencing jury trial is to introduce a whole variety of evidence concerning the defendant's entire life, so that the jury can decide that. "So, I don't think a jury trial would ever be superfluous if the state was asking for capital punishment, because there would be many more issues happening at the jury trial, not just proof of the mitigators or aggravators," she concluded. Number 2406 REPRESENTATIVE CROFT said that is an interesting point, although he doesn't know that he understands it. He asked, "If we knew for a fact that the victim was a 55-year-old, ... what does this empower that jury trial to determine, other than whether it's capital or not?" MS. BRINK said that is the part that doesn't make, the way the bill is drafted. She explained, "In a capital trial, they usually draft the statute so that the jury's decision is 'life' or 'death.' So, they'd have to make that decision, in addition to deciding whether or not there's enough proof to prove all those aggravators or mitigators. In this case, if every capital murder - which is defined as first-degree murder for a jury trial - conceivably, I suppose, if you gave the statute its most broad interpretation, you could have the jury deciding what (indisc.) this defendant could be facing, which is very odd. It would not usually happen under the Alaska Statutes, where sentencing is purely the province of the judge." She offered to provide written facts and figures relating to her earlier testimony. TAPE 99-32, SIDE B Number 0001 MS. BRINK mentioned that Los Angeles County spends $3 million per execution. She expressed concern that the exorbitant cost of capital punishment is apt to make Alaska less safe, because badly needed financial and legal resources will be diverted from more effective crime-fighting strategies. For example, the greatly increased number of police officers on the street is responsible for the reduced crime rate, she said, both nationwide and in Alaska. In states with the death penalty, however, police are being laid off, prisoners are getting released early, and the court systems are clogged. Ms. Brink told members, "Let's not turn Alaska into another state where millions of dollars are poured into the death penalty machine, with no resulting increase in public safety." CHAIRMAN KOTT thanked Ms. Brink and asked that she forward the studies and statistics to the committee. Number 0106 MARGO KNUTH, Assistant Attorney General, Office of the Commissioner - Juneau, Department of Corrections (DOC), came forward, specifying that she was speaking only for the DOC, not the Department of Law. She told members that the DOC's fiscal note for HB 75 indicates the department would need $2.185 million the first year for a capital expenditure, to build a separate, ten-bed death row facility. MS. KNUTH explained that other states' experience is that death row inmates are a distinct population within a prison. They have nothing to lose. They present a special danger to other inmates and to correctional officers, with a special risk for escape attempts. It is not possible to keep death row inmates in the general prison population. The special facility that would need to be built would appropriately be at Spring Creek Correctional Center, the state's current maximum-security facility. Additional operating expenses for manning this facility are also reflected in the fiscal note. MS. KNUTH said the DOC's budget has been cut by the House, by $3 million, this year. [She later corrected this, clarifying that they had received $3 million less than they need.] She told members, "One of the things that we do, in trying to evaluate how to function with a decreased budget, is the first thing to go are new initiatives; things that we have not started yet are not taken on. And that makes sense, that when you're trying to evaluate what to do with finite resources, you have to honor your ongoing commitments in the first place. And it seems inappropriate to the Department of Corrections that when we're going to be short maybe $3 million, for dealing with overcrowding and for trying to deal with the existing population that we have, that we would incur a $2 million obligation to do something that we have not done in the state, since statehood. ... The timing is unfortunate." MS. KNUTH advised members that in ten years of testifying before this committee, not once had she expressed a personal opinion on a bill. However, the subject of the death penalty is one that people obviously have strong feelings about. Noting that as a former prosecutor she has seen "horrible human beings," she recounted how Tony Garcia (ph) in Juneau committed one of the most heinous offenses; he drove out in the Valley, randomly picked a household, knocked on the door, and stabbed to death the person who answered the door, with no provocation or justification. She stated, "A despicable human being. Nonetheless, I've got to tell you, if it's wrong to kill, it's wrong to kill. And all we do is reduce ourselves to the level of these offenders, if we take on this prerogative of saying, 'I'm going to make a value judgment on your life, and I'm going to decide that it is appropriate, somehow, for you to be killed. ... It's not a level that state government should stoop to. It would bring us down to their level, and I know we can do other things with these offenders. Tony Garcia is never going to go anywhere, except maybe to Colorado, where he's wanted on multiple murder convictions, as well." Number 0305 CHAIRMAN KOTT asked whether the Garcias of the world, who aren't going anywhere, pose more of a threat, to society and the security of those charged with looking after them, than those on death row. He suggested that they have nothing to lose, either. MS. KNUTH replied, "There actually is something substantively different about facing death, the death penalty. We do have a number of inmates in Alaska who are serving 99-, 300-, 400-year sentences. And, in fact, I'll guarantee you that they were involved in the manufacture of the desks that you are sitting at now. Most of our correctional industries workers are convicted murderers who have these extremely long sentences. And I've been through Spring Creek. I've been to the program there. I've met them. And they're good workers. ... They're in there for the long haul, and they're proud ... to have a useful activity. And so, you've got different types of people. Tony Garcia is not the type of person I'm describing. I mean, he really is a loathsome human being. But there is a group of murderers out there who are in their 50s, and even older now, who are making a contribution somehow. And so, as is always true, there's a continuum of people out there, and there'll be some who are like Tony Garcia, but that's the exception." Number 0393 CHAIRMAN KOTT referred to the DOC's fiscal note, which anticipates construction of a ten-bed facility to house these death row inmates. He asked whether the average appeals time for those on death row is ten years, and whether some of those could extend beyond ten years. He noted that if there were more than one capital case per year, there could be a need for additional beds. MS. KNUTH replied, "You're quite right, and especially if we're to consider that Alaska's population is predicted to continue increasing. If we have just one capital case a year now, sooner or later our population is going to double, and that, in itself, will increase numbers." She indicated the fiscal note assumes some degree of stability in the state. CHAIRMAN KOTT asked, "Can you anticipate what we would do, in the event that we had more on death row than we had the ability to accommodate? Ship them out to Arizona?" MS. KNUTH replied, "By the way, Mr. Chairman, Arizona won't take our worst boys. We have to keep them. Private prisons don't want the Tony Garcias. They will not take them. And that's something we need to keep in the back of our minds when we're using private prisons. They do not want your maximum-security inmates. They want 'mediums.' ... We would have to ... expand it somehow, and a facility like this would have to be built so that it could be expanded." Number 0476 REPRESENTATIVE CROFT pointed out that the Public Defender Agency had estimated two to three capital cases per year, whereas in constructing the ten-bed facility, the DOC estimated one bed per year for the fiscal note. MS. KNUTH affirmed that, explaining that there is a significant difference between the number of cases tried and the number of convictions anticipated. REPRESENTATIVE CROFT asked whether, if Alaska had had a death penalty, Tony Garcia would have known that and therefore been deterred. MS. KNUTH responded, "As Mr. Campbell so eloquently testified yesterday, the more depraved the person, the less likely there is any rational process going on. And deterrence assumes a rational thought process. Deterrence works wonderfully for me. I am personally never going to do something that places me in [the] prison population, because I don't want to be there. But we've got judgment-impaired people, and those are the ones who commit the worst offenses, and they have the least going on upstairs. And we, as a society, have never found an adequate way of dealing with them." Number 0546 REPRESENTATIVE GREEN asked whether there is any chance, in Ms. Knuth's estimation, that a judge may someday find a disparity between the treatment of those like Garcia and those like the men who make furniture, ruling that it is somehow inequitable, although both groups would be serving 99 years or more. MS. KNUTH replied that departments of corrections are given fairly broad latitude in evaluating the risk posed by inmates, and are expected to make individualized determinations. "So, I think not," she concluded. Number 0638 REPRESENTATIVE ROKEBERG stated his understanding that the legislature had raised the DOC budget by $5 million this year, and that perhaps it was the request that was $3 million less. MS. KNUTH replied, "We were underfunded $3 million from what we believe is essential to meet our current population. But thank you for the correction." REPRESENTATIVE ROKEBERG said he believes there was testimony before the finance subcommittee, by the commissioner, that they've reached a plateau on population growth. He asked whether Ms. Knuth knows if that is still holding up in the last month. MS. KNUTH answered, "We are experiencing some growth, but not as much as had been forecasted, say, a year ago. And we're very fortunate in that regard. But we are overexpense, overbudget; for example, at Cook Inlet facility, we're holding more inmates there than we have room for, because Anchorage is the service hub for medical services and items like that. So, even though our total population is being very cooperative with our budget crisis, we do still have a problem." Number 0703 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed public testimony. Number 0721 REPRESENTATIVE GREEN commented that this is the third death penalty bill that he has seen in this committee over seven years. He noted that the general public sometimes doesn't have access to this much detail, and polls often reflect how a question was asked. In a poll in his own district, the initial question was asked: Do you favor the death penalty? And 60 percent said yes. However, when asked whether they would favor it if they knew that the cost was two and a half times as great, the same respondents changed their answers, and the positive answers fell below 50 percent. He pointed out that that doesn't go to the moral issue or the issue or later proving that someone is innocent. He also noted that Texas is now reconsidering whether they should keep the death penalty. Representative Green concluded by saying he has reservations about even moving this from the committee. Number 0874 CHAIRMAN KOTT asked the sponsor whether the intent is to try to convict and execute a 15-year-old for killing a 12-year-old. REPRESENTATIVE MASEK replied, "The intent of the bill was not to put a 15-year-old to death. It's for people that are over the age of 18, for adults that prey upon children, and that being children under the age of 18." CHAIRMAN KOTT noted that there had been discussion that Section 6 leads one to believe that those who committed a murder in the first degree would fall within the purview of the bill, based on the aggravators. He asked whether that is the intent. REPRESENTATIVE MASEK answered, "Well, the title is pretty restrictive, Mr. Chairman. It says for murder of the child." She said that any other language therefore will not change what the title says. CHAIRMAN KOTT maintained that there is a problem with that one section. He pointed out that even the title says "An Act relating to murder;" at the beginning. He said he doesn't know if that is the intent, to go that far. REPRESENTATIVE MASEK replied, "No, that isn't the intent. It was just for those that kidnap and assault and murder children." Number 1033 REPRESENTATIVE ROKEBERG said there seem to be technical problems that need to be worked on. CHAIRMAN KOTT agreed, acknowledging that there are other issues, as well. He noted that testifiers the previous day had provided good information, and that the committee had requested background information and studies from one family member who had testified, as well as statistics from Barbara Brink regarding costs. Chairman Kott said although this committee is not charged with the financial aspects, the bill certainly does have costs associated with the DOC and the judiciary that should be addressed. He said he wants to work with the drafter regarding the intent. CHAIRMAN KOTT assigned HB 75 to a subcommittee, to be chaired by Representative Green. Also on the subcommittee would be Representatives James and Croft. He asked them to try to iron out the difficulties with the legal side, after which they perhaps could discuss other issues. REPRESENTATIVE GREEN asked whether they could seek outside expertise on legal issues. CHAIRMAN KOTT agreed to that, emphasizing the need to start with something that clearly is indicative of the will of the sponsor. [HB 75 was held over.]