HB 51-AGGRAVATING FACTORS AT SENTENCING  1:55:55 PM CHAIR CLAMAN announced that the final order of business would be HOUSE BILL NO. 51, "An Act relating to aggravating factors considered at sentencing." 1:56:16 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as prime sponsor, introduced HB 51. He explained that the bill would add "sexual orientation" and "gender identity" to the list of aggravators found in sentencing code under AS 12.55.155(c)(22). The existing aggravators in the list are "race", "creed", and "religion". He stated that he believed the bill to be necessary following the events of December 2019, during which a woman had been assaulted and the perpetrator had never been found. He characterized the circumstances of the assault as alarming and that on November 14, 2019, Ms. Tammy Willis had discovered a note left on her windshield threatening her identifying her as a person of same-sex orientation. Eight days later, a rock had been thrown through her vehicle's windshield. On December 9, she had been assaulted with a knife and sustained serious injury. He explained that it had been suggested that the attack had been the response to Ms. Willis's organization of a "Pride in the Park" event in Kenai or Soldotna in spring 2020. He said that a town hall event had been attended by over 200 individuals in Kenai and Soldotna to compel the city councils to include sexual orientation and gender identity in aggravating factors in criminal code. He said that both councils had voted in favor of House Bill 198, an earlier version of HB 51. He stated that the late Representative Gary Knopp had aided in the drafting of House Bill 198. He stated that HB 51 would designate crimes targeted against this population would be aggravated. He offered that hate crimes are predicated on community condemnation, retribution, and symbolic statements. He indicated that reaction to a crime committed against the general public, that did not target a specific group, did not elicit an anxiety that exists among victims of specifically targeted groups. He recalled a U. S. Supreme Court Case, Wisconsin v. Mitchell, in 1993, pertaining to aggravating factors to include hate crimes. He said that Chief Justice Rehnquist had ruled that the statutes [in question] were lawful and that they did not violate equal protections. 2:03:27 PM REPRESENTATIVE JOSEPHSON read from the opinion issued, that "bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." He stated that the aggravating factors would apply only to felonies and that notice seeking the aggravator to the court is required. He stated that aggravators are considered by a jury and must be decided unanimously unless the defendant waived the jury's unanimous verdict. 2:07:23 PM MAX KOHN, Staff, Representative Andy Josephson, Alaska State Legislature, presented a PowerPoint presentation [hard copy included in the committee packet] entitled, "HB 51 PowerPoint Presentation 1.21.2022.pdf," and he explained aggravating factors as listed in 12.55.155(c). He read from slide 4, which lists the reasoning for including aggravating factors in the sentencing phase of a criminal prosecution. Slide 4 read as follows [original punctuation provided]: •Motive and details matter. •As with all laws, these factors reflect societal attitudes. •In instances where aggravators are relevant, the defendant has already been convicted and the details of the crime are broadly considered abhorrent or aberrant. •When a sentence is imposed beyond the presumptive range, it can be seen as an indication that the motive was particularly egregious or that the defendant demonstrated a disregard for societal norms beyond what might be expected for a 'typical' crime of that type. •The impact of an assault motivated by hate towards a group has larger repercussions than even the initial terrible impact on the individual. MR. KOHN explained that there is one change to the statute in question, and he read from slide 6 an excerpt from the sectional analysis, which read as follows [original punctuation provided]: •AS 12.55.155(c)(22) currently allows a sentencing court to impose additional sentencing if "the defendant knowingly directed the conduct constituting the offense at a victim because of that person's race, sex, color, creed, physical or mental disability, ancestry, or national origin" B 51 adds "sexual orientation or gender identity" to this list. 2:10:51 PM MR. KOHN drew attention to slide 7, which contained graphs based on the Federal Bureau of Investigation (FBI) data on anti-gender identity and anti-sexual orientation hate crimes during 2015- 2019, and he noted that the data reflected actual crimes that had occurred. He stated that the data demonstrates that the problem is getting worse at the national level. He next drew attention to slide 8, which shows a map on which lighter blue states are states that only include laws addressing sexual orientation and that the darker blue states are states that have laws addressing both sexual orientation and gender identity. He pointed out that the State of Wyoming, like Alaska, has no laws addressing hate crimes committed towards sexual orientation or gender identity. He suggested that there exist negative impacts in states that do not have such laws, and he read a press quote from slide 9, which read as follows [original punctuation provided]: Anti-LGBTQ bigotry ran rampant in Wyoming last year. In addition to isolated incidents of violence and discrimination, several communities broke out in dispute over LGBTQ representation in public spaces. MR. KOHN stated that the business community in Wyoming was advocating for laws against hate crimes. He then read the quote from slide 9, attributed to Chris Brown, Wyoming Lodging and Restaurant Association Lobbyist, which read as follows [original punctuation provided]: Protecting the LGBTQ+ community under a hate crime statute "sends a message that bias-motivated crimes are taken seriously." MR. KOHN next drew attention to slide 10 of the presentation, which provides an example of criminal justice reform from across the nation, specifically legislation that had been passed recently by the State of Georgia. Slide 10 read as follows [original punctuation provided]: Georgia passed HB 426 in 2020 with wide bipartisan support. 60 out of 100 Republicans in the State House supported the bill along with 26 out of 34 Republicans in the State Senate. That's a total of 64% of Georgia Republicans. Georgia's HB 426 includes Race, Color, Religion, National Origin, Sex, Sexual Orientation, Gender, Mental Disability, or Physical Disability. MR. KOHN concluded the presentation by recalling the story that Representative Josephson had recounted from 2019 and stated that the crime that had been committed had negatively affected a larger community. 2:15:00 PM TAMMIE WILLIS testified in support of HB 51 and stated that she had been the victim in the crime that Representative Josephson had detailed in earlier testimony. She began her testimony by noting that the murder of Matthew Shepard had taken place in Wyoming, which has no hate crime laws, and the case had garnered national attention. She stated that she had worked with others to establish the Kenai Peninsula College (KPC) Alliance that evolved to the Soldotna Pride in the Park in June 2019, which had grown to over 200 participants. She stated that because of the size of the event, a community planning event had been organized, following which, the crimes against her commenced. She detailed the violent assault against her. She stated that she had reported each incident to the police and some evidence had been gathered. She stated that she had publicly shared her experiences and had been met with "a wall of hate," including threats. She stated that the threats against her continue, and she had quit her job and moved from her home to escape the threats. 2:18:56 PM MS. WILLIS stated that she had started an organization called Queers and Allies to create safe spaces and to provide education and advocacy. She shared with the committee that she had encountered recurring stories, during her advocacy work, involving harassment, bullying, violence, fear, sexual abuse, and homelessness among the lesbian, gay, bisexual, transexual, and queer (LGBTQ) community. She stated that an advocate in Fairbanks and an advocate in Anchorage had been assaulted and remain anonymous out of fear. She stated that HB 51 would support change to criminal justice in Alaska to protect these citizens. CHAIR CLAMAN asked Ms. Willis to provide her written testimony. 2:23:05 PM REPRESENTATIVE KREISS-TOMKINS asked whether the assailant against Ms. Willis had been identified and taken into custody. MS. WILLIS answered that he had not. She stated that many problems occurred during her case. For example, evidence had been lost or not examined in a timely manner and witnesses had not been interviewed in a timely manner. The FBI was eventually involved in the case. 2:24:47 PM CHAIR CLAMN opened public testimony on HB 51. 2:25:33 PM ALEXANDER MORIARTY testified in support of HB 51. He thanked the bill sponsor. He offered that aggravating factors for hate crimes were necessary based on the evidence in the slides presented earlier and that the protections would be put in place for some of the most vulnerable members of society. He stated that everyone's life should be protected equally. 2:28:42 PM ROBIN DERN, Board Member, Anti-Defamation League, Pacific Northwest Region, testified in support of HB 51. She stated that according to a 2019 FBI hate crimes report, 11 hate crimes had occurred in Alaska, the highest ever. She added that in 2020, 7,759 hate crimes had been documented across the country, and 1 of 6 were motivated by the victim's actual or perceived sexual orientation or gender identity. She stated that the statistics were not representative of the actual incidence of these crimes due to victims' reluctance to come forward and that law enforcement may not be equipped to deal with the crimes when they are brought forward. She urged the passage of HB 51. CHAIR CLAMAN asked Ms. Dern to provide her written testimony. 2:32:29 PM CHAIR CLAMAN, after ascertaining that there was no one else who wished to testify, closed public testimony on HB 51. REPRESENTATIVE EASTMAN asked what possible minimum and maximum sentences would apply to the crimes. REPRESENTATIVE JOSEPHSON explained that a B felony would result in a sentence of 0-10 years and an A felony would result in a sentence of 0-20 years. He offered an example wherein a presumptive sentence on a B felony conviction would be 4 years, that a judge may elect for a sentence of up to 10 years but only with a finding that the felon was the worst in his/her class. He said that a judge may, at his/her discretion, increase a sentence. REPRESENTATIVE EASTMAN asked whether a sentence would be from 0- 20 years. REPRESENTATIVE JOSEPHSON answered no, such as in a case where the victim was murdered, the sentence would be more than 20 years. REPRESENTATIVE EASTMAN asked the definition of "creed". REPRESENTATIVE JOSEPHSON answered that "creed" is defined under AS 12.55.185 as it is listed under AS 12.55.155. He proffered that the terms "color" and "physical or mental disability" are not defined, but courts operate with those terms regularly. He postulated that "creed" likely pertains to one's religion; however, "creed" does not pertain to HB 51. CHAIR CLAMAN offered that "creed" is existing law. REPRESENTATIVE EASTMAN explained his reason for asking was to determine that "creed" would not already capture the inclusion of the protected class in HB 51. REPRESENTATIVE JOSEPHSON stated that no such indication [that it would] had been offered by counsel [in Legislative Legal Services]. REPRESENTATIVE EASTMAN asked whether HB 51 would criminalize any new behavior. REPRESENTATIVE JOSEPHSON answered that it would not. REPRESENTATIVE EASTMAN asked for additional information on the increase in the crimes as presented in the PowerPoint and asked why the crimes are not decreasing when laws are being passed to protect against them. 2:38:01 PM REPRESENTATIVE JOSEPHSON stated that he held his own beliefs for the reasons for the increase in these types of crimes. REPRESENTATIVE EASTMAN suggested that the bill is modest and asked whether solely increasing sentencing would be sufficient to solve the problem and if any other tools would be sought. REPRESENTATIVE JOSEPHSON answered that tools which may be sought to solve the problem would be universal pre-[kindergarten] and support for young parents, which are expensive to implement. He noted that a scholar, Dr. Gurstenfeld, had conducted extensive research and had found that the symbolic expression of noting the conduct as unacceptable in the larger society has value. REPRESENTATIVE EASTMAN stated that he was persuaded that crimes motivated by hate should be minimized and questioned the limited language and questioned not including those who may not be members of a group. REPRESENTATIVE JOSEPHSON recalled his earlier testimony that hate crimes are targeted against a particular cohort with shared traits and recalled the opinion of Chief Justice Rehnquist. 2:43:26 PM CHAIR CLAMAN recalled Representative Eastman's earlier question regarding sentencing under AS 12.55.125 and answered that the first offense of a B felony would be 1-3 years, a second B felony would be 3-7 years, and the third or greater offense would be 7-10 years. He stated that, unless a jury finds an aggravating factor in a first B felony offense, the judge would be barred from imposing more than a 3-year sentence. REPRESENTATIVE DRUMMOND asked the rationale for including the term sexual "identity" as compared to gender or sex. MR. KOHN answered that the FBI data had reflected that from 2015 to 2019, of the instances of gender-based crimes committed, crimes predicated on gender alone comprised only one-third of those crimes. REPRESENTATIVE JOSEPHSON added that when counsel had been consulted regarding sex compared with gender identity, he/she had concluded the following: "If you would like to guarantee that a sentencing aggravator can be applied in cases where conduct is knowingly directed at a victim because of that person's sexual orientation or transgender status, I recommend amending the statute to specifically include such language." 2:48:43 PM REPRESENTATIVE EASTMAN asked whether the word "or" would be necessary, grammatically. MR. KOHN offered to pose the question to the drafter of the statute, Ms. Radford, and follow up with the committee. REPRESENTATIVE EASTMAN recalled earlier testimony by Representative Josephson regarding additional tools such as universal pre-K and asked how effective the proposed change to the statute would be. REPRESENTATIVE JOSEPHSON cautioned against any implication of diminished importance of the bill but offered that it would result in incremental progress in the law. He acknowledge the need exists for government protection and that all Americans do not need protections in the same way. 2:51:33 PM CHAIR CLAMAN announced that HB 51 was held over.