HB 198-AGGRAVATING FACTORS AT SENTENCING    3:01:49 PM CO-CHAIR FIELDS announced that the first order of business would be HOUSE BILL NO. 198, "An Act relating to aggravating factors considered at sentencing." 3:02:21 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as prime sponsor of HB 198, relayed that the proposed legislation would create a modified statutory aggravator based on gender identity and sexual orientation in paragraph (22) of the aggravators [listed under AS 12.55.155(c)]. He said approximately 32 states recognize some form of specific legal safeguard within their respective criminal codes for persons of the lesbian, gay, bisexual, transgender (LGBT) community or some subset of the same. "Essentially 32 touch on some sort of criminal aggravator in that larger cohort." It is accomplished by providing a sentencing enhancement - or aggravator - in cases in which the victim was targeted because of the individual's gender identity or sexual orientation status. He mentioned that "targeted" is self-explanatory. REPRESENTATIVE JOSEPHSON explained that the enhanced sentence could be perceived as either a deterrent to misconduct by a perpetrator or protection of same sex orientation persons - a historically victimized group of Americans. Alaska law lacks any provision offering further deterrents - or punishment - to defendants who target persons based on their gender identity or orientation status. He lamented that sadly it sometimes takes a horrific and unfortunate event to engender willingness to provide a public statement in support of enhanced sanctions for the targeting of persons based on qualities inherent in them. Alaska recently experienced that type of incident. REPRESENTATIVE JOSEPHSON continued by saying that typically when a person is victimized by a felony outside of any targeting related to his/her race, sex, disability, or such, a presumptive statute applies and the greater society - while angered and frustrated - is not specifically imperiled. He stated: If we all see on the local news or read in the paper that there was an assault, often we ask ourselves was the person ... arrested and detained, and we are relieved when we hear they were. And if you're not in some defined protected group, you may view it in a certain way as well. That is, if it was a crime of a general nature, not targeting any specific group, then ... the normal human reaction is to say, "We have a crime problem," but to be more relaxed certainly once an arrest is made, but not suffer the anxiety that goes with realizing the person who was targeted is a person whose group I'm in too. REPRESENTATIVE JOSEPHSON relayed that where there are indications that a subset of society is an intentional target of attack, that group can feel particularly threatened and with cause. He mentioned [the 1993 U.S. Supreme Court case] Wisconsin v. Mitchell - a case involving a white victim attacked by African Americans. The Wisconsin Supreme Court asserted that the legislature cannot have a constitutional law that aggravates a sentence. Chief Justice [William] Rehnquist gave the opinion that "hate crimes" are constitutional; he was concerned that such crimes could create a state of anxiety that legislators should feel free to protect. 3:06:41 PM REPRESENTATIVE JOSEPHSON further stated that presently there are 37 different sentencing enhancements in Alaska law that allow the court to add sentence time beyond the statutory presumptive period. Currently AS 12.55.155(c), paragraph (22), specifies that a sentence can be aggravated where "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"; under HB 198, five words would be added - "sexual orientation or gender identity". He said that Alaska is one of the 45 states that have hate crimes, but not one of the 32 states that include gender identity and sexual orientation [as a basis for a hate crime]. REPRESENTATIVE JOSEPHSON added that under HB 198, the crime would be charged as usual, and the prosecutor would be required to announce the he/she will seek an aggregator. He said that under the U.S. Supreme Court decision, in most instances the same 12 jurors that made a felony conviction would be required to determine whether beyond a reasonable doubt an aggravator has been proven; that is, there was some hostility or hatred of that targeted person. 3:09:17 PM REPRESENTATIVE GARY KNOPP, Alaska State Legislature, as a co- sponsor of HB 198, relayed that the incident that prompted the proposed legislation occurred in his community. He stated that the LGTB community is broadly defined and has grown across the state. He was surprised to see 200 people attend a town meeting in support of the LGBT community; the request of the group was that the list of hate crime aggravators be expanded to include sexual orientation and gender identity. REPRESENTATIVE KNOPP described the three incidents that occurred to the victim, Tammie Willis: a homophobic note was found on her vehicle; her vehicle windshield and front end were smashed in by a large boulder; and she was attacked at home by knife and severely injured. He maintained that a prosecutor has a huge hurdle to overcome in providing proof of an aggravator. He said that the proposed legislation is in response to a request from his community. To people who suggest that he is creating a "new class of people" with special protections, he responds that they are the same protections that are extended to any class of people. He said that he expects that the list of aggravators in statute will increase over time. He referred to the "discrimination bill" [House Bill 184, introduced in the Thirtieth Alaska State Legislature, (2017-2018)] and emphasized that "we don't discriminate in this day and age for any reason." REPRESENTATIVE KNOPP offered that some people don't like the LGBT community; he is not asking them to like the LGBT community; however, he is advocating that individuals in the LGBT community are entitled to the same protection as other groups. 3:13:25 PM REPRESENTATIVE JOSEPHSON suggested getting data from the Department of Law (DOL) on the number of times - out of 37 aggravators - paragraph (22) is the basis for an increase in sentence above the presumptive range. He expressed his belief that the use of paragraph (22) [in sentencing] is very uncommon and maintained that the use of sexual orientation or gender identity as an aggravator also would be uncommon; however, he stated, "You need it when you need it, because if you don't have it, then you're effectively saying this is just a typical assault, when it's not a typical assault." He further maintained that it is common in the criminal code to rely on the facts to tell as best they can what is transpiring in the mind of the assailant or offender. An example is a premeditated homicide versus a homicide committed in a state of impassioned fury; the premeditated homicide is treated more severely. He added, "Here you're talking about the targeting of someone in a very deliberate way, systematic way." CO-CHAIR FIELDS asked Representative Knopp to discuss the resolution passed by the City of Soldotna in support of HB 198. REPRESENTATIVE KNOPP replied that the City of Soldotna passed a resolution in support of the proposed legislation; the meeting of about 200 people included many public officials from both Kenai and Soldotna, as well as broad support. The City of Kenai will consider a similar resolution tomorrow [2/5/20]. 3:16:27 PM REPRESENTATIVE VANCE asked why sexual orientation and gender identity do not fall under "sexual discrimination," which is already in statute. REPRESENTATIVE JOSEPHSON responded that the issue is currently before the U.S. Supreme Court. The essence of the dispute is: the [President Barak] Obama administration's position was that "sex" could include gender identity and sexual orientation; the [President Donald J.] Trump administration has declared that it absolutely does not. The dispute before the U.S. Supreme Court is not about a criminal matter; however, one might argue that the standard for defending an appellate review would be stricter in a criminal case, because someone's freedom is at stake. The court would interpret the law narrowly, and most likely a challenge to a ruling based on gender identity and sexual orientation being included under "sexual discrimination" would fail. He expressed his belief that [as the statute is written] Ms. Willis would not see her assailant suffer any additional sentence. 3:18:55 PM REPRESENTATIVE VANCE suggested that in view of "sexual discrimination" being narrowly defined by the courts, definitions for sexual orientation and gender identity should be added to the statute. REPRESENTATIVE JOSEPHSON expressed his belief that no definitions were included for any of the aggravators - creed, disability, and so on. He suggested that to do so would be burdensome and provocative; "it would needlessly delay the movement of the bill in a way that ... misses the point." He maintained that what is being discussed here is: "What's in the mind of the defendant?" He said that it is less important whether someone truly was a same sex-oriented person; what is important is that the defendant believed the person was. He stated that there are many instances for which the Alaska Supreme Court goes to the dictionary for definitions. He suggested that Representative Vance could offer a definition; however, he opined that it is not required. REPRESENTATIVE VANCE expressed that before the law is imposed on the members of a jury, the [parameters] of the terms should be narrowly defined. Deciding what a defendant is believing or thinking is a heavy burden on jurors; the legislature should provide the scope of what the legislative intent is. 3:21:55 PM REPRESENTATIVE HOPKINS asked Representative Knopp what the note on Ms. Willis's vehicle said. REPRESENTATIVE KNOPP replied he did not remember exactly. He confirmed that the note referred to the victim's sexual orientation, not gender. In response to Representative Vance, he said that in conversations with lawyers, they confirmed the distinction - not hating a person because of gender but because of being gay or having had a transgender operation. He mentioned that the lawyers said, "That's the difference. You don't necessarily hate the "sex," but you do when they modify their behavior in that sense." He maintained that is the reason for needing "sexual orientation" in the proposed legislation. He added that the perpetrator acts on his/her hatred; it's not just a single act, but repeated acts; and not something he/she would do against any other male or female. REPRESENTATIVE JOSEPHSON said that to be clear, the definitions follow the chapter. He referred to the definitions for the chapter listed under AS 12.55.185 and pointed out that race, sex, color, creed, physical or mental disability, ancestry, and national origin are not defined. He maintained that the state has had this list of aggravators for decades, and there has been no need to define the terms. He opined that defining the terms is unnecessary. CO-CHAIR FIELDS commented on the incident. 3:26:16 PM CO-CHAIR KREISS-TOMKINS asked whether the DOL Criminal Division has been consulted to answer the question of whether the current hate crime laws would encompass the incident in Soldotna. He expressed his agreement with Representative Josephson's understanding that they would not; however, a DOL opinion might assuage any doubts on the matter. REPRESENTATIVE JOSEPHSON answered, "That consultation has not happened." He reiterated that 32 states have adopted similar measures; 6 or 7 very "red" states protect this class of people. He asserted that these people are not being protected; they are, in some cases, viciously assaulted and murdered. The Federal Bureau of Investigation (FBI) hate crime data supports the fact that by percent, the LGBT community - more than any other community - is victimized. He added that using the word "protection" suggests a special privilege; he pointed out that it is only a special privilege for those assaulted or murdered or otherwise victimized by a felony. He said, "It's not a category to begrudge. It's a category to protect. ... There's always going to be crime, and if it's a generic - sort of general crime - we apply a presumptive sentence. But for decades, starting in the '60s, we said under ... hate crimes, we're going to enhance sentences if you're bringing a certain animus, because that animus hurts everyone in the society in a unique way." REPRESENTATIVE STORY thanked the representative for introducing the bill. 3:29:15 PM REPRESENTATIVE SHAW mentioned that any crime directed toward any person could be hateful and could be regarded as a hate crime. He suggested [a crime resulting from] social interactions between families - a husband kills a wife and a child - committed out of hate. He asked, "When do we stop adding to the aggravated factors and not just say a hate crime could very well be attached to literally any crime in some respect?" REPRESENTATIVE JOSEPHSON answered, "If you are a six-foot-six red-haired ... man, you are not going to be targeted because you're [a] six-foot-six red-haired person." He offered that the additional category in paragraph (22) evolved because "the facts are in that in these other groups, you very well might." He pointed out the irony of Justice Rehnquist - a very conservative justice - authoring the 1993 decision, which offered protection for a white person being attacked based on race and enhancing the sentence for the crime. CO-CHAIR FIELDS referred to the "six-foot-six red-haired man" example and pointed out that over 100 years ago Irish people were not considered white; therefore, if these laws had been in place at the time, a crime against an Irishman - because he is Irish - would have been considered a hate crime. Irish people are now considered white. He suggested that the trend is toward fewer groups being excluded as different, which is a positive trend. [A copy of the note left on the windshield in the Soldotna incident was passed out to the committee members. It was not included in the committee packet.] 3:32:59 PM NATHANIEL GRABMAN, Staff, Representative Andy Josephson, on behalf of Representative Josephson, prime sponsor of HB 198, presented a PowerPoint presentation, entitled "HB 198: An Act Relating to Aggravating Factors Considered at Sentencing." He began with slide 2, entitled "Aggravating Factors in Sentencing," which read: If a defendant is convicted of a crime, they will then be sentenced. A large number of factors may be considered during this phase. AS 12.55.155(c) contains 37 separate factors which, if proven, shall be considered at sentencing, and allow for additional sentencing beyond the presumptive range spelled out in AS 12.55.125. In conjunction with AS 12.55.125(d), mitigating and aggravating factors may be considered when a defendant is sentenced, and may increase or decrease the overall sentence imposed. MR. GRABMAN turned to slide 3, entitled "Why Do We Have Aggravating Factors?" and explained that people recognize that many of the things they do and say occur in "shades of gray." He reviewed the information on the slide, which read: ?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. MR. GRABMAN added that society has decided not to condone certain biased motivated attacks on individuals or groups. He moved on to slide 4, entitled "HB 198 Amends Aggravator 22," which read: ?AS 12.55.125(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" ?HB 198 adds "sexual orientation or gender identity" to this list. MR. GRABMAN referred to the charts in slide 5, which graphically represent FBI data from 2015-2018. He stated that the data shows that biased motivated attacks due to sexual orientation has been trending upward for the last four years for which data is available. The data also demonstrates that gender identity crimes saw a 30 percent spike in the last year of the data. MR. GRABMAN turned to slide 6, entitled "Alaska is not Immune" to reference some Alaska headlines about the incident. REPRESENTATIVE VANCE asked whether the FBI data consisted of U.S. statistics or Alaska statistics. MR. GRABMAN replied, "These are U.S. statistics." He referred to a [Cable News Network (CNN)] video at the end of the slide show which reports that the statistics are inadequate and underreported. He added that the numbers on the chart reflect what has been reported to the FBI. MR. GRABMAN turned back to slide 6 to point out that the events that occurred in Soldotna from the time of the note on the windshield to the time of the resolution of support by the Soldotna City Council was a matter of months. MR. GRABMAN moved on to slide 7, entitled "Existing State Laws Nationwide," to point out that 4-5 states do not have any aggravators in statute; two-thirds of states have some protection for these classes. REPRESENTATIVE JOSEPHSON reminded the committee before watching the video that the matter [addressed by HB 198] is partially covered by federal law; however, there is no federal nexus for the assault of the victim at her home in Sterling. 3:38:10 PM [A three-minute video, produced by CNN and entitled "Hate Crimes Statistics Explainer," was played for the committee. The link to the video was displayed on slide 8, which read: https://www.cnn.com/videos/us/2019/11/07/hate-crime-statistics- explainer-orig.cnn].] 3:42:26 PM KAREN LOEFFLER relayed that she was a 30-year federal prosecutor and finished her career as a U.S. Attorney [for the District of Alaska]. She stated that the first line in the protector of community members against the types of assaults being discussed is the state. The federal government has civil rights laws, but they are secondary to state law; they involve situations in which individuals are attacked because of their status while they are engaged in federally protected activities; therefore, the protection is limited. The primary protection against people based on their status comes from the state. MS. LOEFFLER continued by saying that it is very common for judges to consider the motivation of an attacker - both as a litigator and as an aggravator. She explained that community consciousness makes attacking someone solely based on status is abhorrent to society. In Alaska and federally, there were no special protections for people attacked solely due to gender identity or sexual orientation. That changed in 2009 with the [Matthew] Shepard and [James] Byrd [Jr. Hate Crimes Prevention] Act, which added protection for sexual orientation after the attack on [Matthew Shepard in Wyoming in 1998]. MS. LOEFFLER relayed that people who choose to attack someone they do not know based solely on who that person is or on specific characteristics of the person - and not on the circumstances of a situation - are more dangerous to society and its future. She stated that she supports the proposed legislation because it "fills a hole" that the public became aware of due to the incident in Soldotna. She added that statutes such as the one proposed by HB 198 are rarely utilized but "when this type of thing happens, we need them to be there." CO-CHAIR FIELDS repeated Representative Vance's question about having more comprehensive definitions in statute and whether it would make a difference for prosecuting hate crimes. MS. LOEFFLER replied that generally terms such as those included in the proposed legislation are not defined within statute. She offered that there is a difference between attacking someone because the person is male or female and attacking the person because the person is gay. CO-CHAIR FIELDS stated that HB 198 would be held over.