SB 344-TERRORISM AGGRAVATING FACTOR  CHAIRMAN TAYLOR stated that he introduced this legislation because of an article that appeared some years ago in the Earth  First journal. He said his concern stems from the fact that he is seeing more articles in the newspaper about people acting out and committing arson to protect animals or protect the earth. He said that those acts would be considered terrorism in any other forum. SB 344 increases the aggravating factors at sentencing should a person be found to have committed a criminal act for these purposes. He then took public testimony. MS. JENNIFER RUDINGER, Alaska Civil Liberties Union (ACLU), said the ACLU is a non-profit organization dedicated to preserving and defending the principles of liberty and free speech guaranteed in the Bill of Rights and the Alaska Constitution. The ACLU urges committee members not to pass SB 344 from committee because rather than punishing criminal acts, this bill punishes political ideas and motivations, which are at the core of what the First Amendment was adopted to protect, that being the right of citizens to petition their government for redress of grievances and the right of dissenting voices to be heard. She clarified that the ACLU does not oppose the criminal prosecution of people who commit acts of civil disobedience if those acts result in property damage or place people in danger. That type of behavior is already illegal. However, such crimes are often not what Alaskans think of as terrorism and it would be very unfortunate if the legislative response to terrorism is to start turning ordinary Alaskans into terrorists just because their motivation is to effect political change. MS. RUDINGER stated that under the sweeping definitions in SB 344, the desire to effect change could in and of itself be sufficient to aggravate the sentences or people whose civil disobedience does not come anywhere near the level of what Alaskans think of as terrorism. She said recent examples are the World Trade Organization protestors who engaged in minor acts of vandalism or anti-abortion protestors who engage in civil disobedience by blocking entry to clinics. TAPE 02-11, SIDE B MS. RUDINGER said another example is the people in Puerto Rico who committed civil disobedience to stop the use of the island of Puerto Rico for weapons testing and bombing. She repeated the criminal acts of vandalism and assault in those examples should be punished and existing law allows for punishment of acts involving force or violence against persons or property, as SB 344 recognizes. However, the motivations of the protestors to influence world economic policy, to dissuade women from seeking abortions or to change U.S. policy with regard to bombing in Puerto Rico are the bedrock of democracy. She concluded by saying she supports Chairman Taylor's effort to punish criminal acts, but in legislators' efforts to protect Alaskans from real criminal threats, it is important that they not criminalize ideas and beliefs protected by the First Amendment by punishing Alaskans' political motivations. SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a position on hate crimes legislation. MS. RUDINGER replied that about eight or nine years ago, the national ACLU submitted a brief to the U.S. Supreme Court urging it to uphold a Wisconsin hate crimes enhancement statute as being constitutional, however the ACLU also asked the Supreme Court to set forth a clear set of rules governing the use of these statutes. The ACLU warned the court that if the state is not able to prove that a defendant's speech is directly linked to the criminal behavior, chances would increase that the state's hate crime prosecution would be politically motivated. She told Senator Donley that she appreciated the question because the issue is very complicated. She said the ACLU is against hate speech codes in which only politically correct speech is tolerated, but it does support a narrowly crafted hate crime bill if it has restrictions on the kind of evidence introduced. She asserted that the intent and the effect of hate crimes is to oppress and silence a group of vulnerable people using fear. She emphasized the importance of ensuring that the evidence introduced is limited to the hate crime charges. SENATOR DONLEY asked if the ACLU does not oppose hate crimes legislation if there is linkage between the actual speech or thought. MS. RUDINGER said she thought Senator Donley was right but it is a tough line to draw. ACLU opposed Senator Ted Kennedy's bill in Congress unless it was amended to narrow the kind of evidence that could be introduced. The ACLU was leery of the broad scope of the bill and how much of a person's beliefs and associations could be used against them in a trial about a particular crime. However, sometimes speech is related to a crime, such as in a lynching, so it is a very difficult line to draw. The ACLU supports hate crime legislation overall because of the oppressive effect hate crimes have on vulnerable groups of people. SENATOR DONLEY asked if the ACLU has extended its area of concern into disparate treatment based on race or other non-permissible factors. MS. RUDINGER asked Senator Donley to be more specific. SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a position on the Governor's proposed subsistence amendment. MS. RUDINGER said the ACLU supports a constitutional amendment but it hasn't yet testified on the issue. The ACLU does not see the subsistence issue as a race-based issue but one of necessity that is connected to freedom of religion and spiritual heritage. She said the short answer is the ACLU does support a constitutional amendment or some kind of protection of subsistence use based on the fact that subsistence is so integral to Native culture - it goes beyond simply food and gets into the spiritual heritage of the culture. SENATOR DONLEY asked why the ACLU feels a constitutional amendment is necessary when the state already prioritizes subsistence uses as the highest priority use. The only purpose of a constitutional amendment would be to provide for discrimination of urban subsistence users to the benefit of rural subsistence users, not necessarily based on any merit or cultural background. MS. RUDINGER responded by saying the ACLU wouldn't limit its support to just a constitutional amendment but it would support a subsistence preference in times of shortage, the reason being that subsistence is so much a part of the culture and heritage. Subsistence is not simply a matter of gathering food. The Alaska Constitution gives everyone the right to eat. The ACLU supports subsistence because it believes it is a very important matter that needs to be resolved and it will only come into play in times of shortage. She repeated that during times of shortage, it is very important to protect the spiritual heritage of Alaska Natives. She offered to meet with Senator Donley at another time to elaborate further. SENATOR DONLEY said he appreciates Ms. Rudinger's offer and explanation but he doesn't believe her explanation is consistent. MS. RUDINGER remarked that it is hard to sum up a position on an issue like subsistence in a short time period. SENATOR DONLEY noted the Anchorage Assembly thinks it's competent enough to do so. CHAIRMAN TAYLOR said he was fascinated by Ms. Rudinger's comment that the ACLU supports hate crime legislation if it contains a sufficient limitation upon the evidence of motive or the evidence of hate. MS. RUDINGER agreed that is what she said and stated the ACLU is opposed to hate speech codes. The ACLU does not believe speech can be restricted and, in fact, the ACLU has defended the rights of numerous groups whose speech she can't stand. The ACLU defended the rights of the Nazi party to peaceably march through a primarily Jewish town in Illinois. However, when it comes to hate crimes, the motivation in itself does harm. The motivation behind a hate crime is not just aimed at the victim of the crime but it is aimed at an entire group of people and sends the message that this will happen to you if you assert your rights. The ACLU is very cautious however, and has opposed hate crime bills that include speech. CHAIRMAN TAYLOR said SB 344 refers to the defendant's criminal conduct so it does not apply to anything that is defensible under the First Amendment because that wouldn't be criminal conduct. He read from SB 344, "...the defendant's criminal conduct involved the use of force or violence against persons or property and was designed to (A) intimidate or coerce a civilian population." He asked, "Isn't that what a lynching is all about?" MS. RUDINGER said SB 344 does not affect criminal conduct because the conduct has already been punished. SB 344 does say that at sentencing for that conduct, there's an aggravating factor as to what the motivation was in the mind of the person who committed the act. CHAIRMAN TAYLOR asked, "Isn't that what we do in all sentencing? Don't we look to the motive and the mens rea - the criminal intent of the individual?" MS. RUDINGER replied: Mr. Chairman, intent and motive are different. The intent is to commit the act or to see that the harm itself is done but the motives listed here are not just to commit the act, but to send a message. This looks at is the motive behind the act being committed, is that motive to send a message. The sending of a message, however unpopular the message may be, is exactly what the First Amendment was designed to protect. We can punish the means, and we already do in the first part of statute 12.55.155 and .125 but the motive, the thought, we cannot and should not punish, especially - we have some concerns about how vaguely these are worded... as I look at all of the verbs in here, I think they all boil down to wanting to make political change. CHAIRMAN TAYLOR asked how the verbs are any different than those found within the definitions of the various hate crime laws that Ms. Rudinger mentioned. He questioned how the lynching she used as an example was not designed by the Ku Klux Klan to intimidate or coerce a civilian population? MS. RUDINGER said clearly lynchings and hate crimes are designed to intimidate but the difference between hate crimes and SB 344 is who the intimidation is aimed at. She noted the motivation behind a hate crime is designed to intimidate and oppress groups of people who have been oppressed in the past. CHAIRMAN TAYLOR asked why hate crimes only apply to groups who have been intimidated in the past. MS. RUDINGER said the hate crimes bills that she has seen have tried to protect people from being oppressed by violence. The bills are aimed at correcting past discrimination. She stated there is a big difference between oppressing a group of people who are vulnerable and intimidating the government. Any kind of protest is designed to influence the policy of a government, and one could argue by intimidation if a lot of voters are going to be upset by it. CHAIRMAN TAYLOR commented, "Not by criminal conduct, I hope." MS. RUDINGER said the conduct should be punished under the first part of the statute. CHAIRMAN TAYLOR asked if that punishment should not be aggravated by what the conduct was designed to do. He stated, "If it was intentionally designed by the people who did the criminal conduct to intimidate and coerce all of the people living down river from the dam when they blew the dam up, and they blackmailed on that basis, they said pay us $2 million or we'll blow up the dam. That's pure and simple, we don't have a problem with that one. But, if instead they say you cannot allow that nuclear power plant to be built down river or we'll blow up your dam, somehow that's free speech and the other one is not. It's a criminal act that should be punished. Why should the aggravator not apply?" MS. RUDINGER said both acts are criminal acts. The acts themselves say harm will come if something isn't done. She continued, "The acts themselves are criminal conduct and this, of course, is limited to using force or violence, not just threatening to use force or violence." CHAIRMAN TAYLOR said that is correct. MS. RUDINGER stated: The only thing that your bill changes is the part that says and was designed to (A)(B)(C)(D), in other words, the motivation was (A)(B)(C) or (D). Those motivations are so vaguely worded, we have some real concerns about protected free speech being swept into them just because that speech might be politically unpopular if a prosecutor wanted to try to add some aggravating sentences and send a message. CHAIRMAN TAYLOR said he understood Ms. Rudinger's point. SENATOR THERRIAULT noted there must be the underlying commission of a crime so none of SB 344 would be triggered unless a person commits and is convicted of a crime. He said he believes a lot of limits were built into SB 344 by the way it is structured. MS. RUDINGER gave the example of the WTO protest several years ago at which protesters got out of hand. The individuals who vandalized the car would be prosecuted. If SB 344 was in force, it would apply during the sentencing stage. Without SB 344, the sentence would be whatever it is for vandalizing a car. With SB 344, it would be possible to say that because the motivation of the act was to influence the economic policy, the sentence should be worse. She said the motivation is protected by the First Amendment but the act is not so SB 344 would be turning the First Amendment on its head. SENATOR THERRIAULT asked if the question is whether the perpetrator wanted to affect policy change through the commission of a crime. MS. RUDINGER replied, "No, the conduct should be punished but it's not the same thing to say we want to affect policy as to say well, we want to affect policy by - you know, things got out of hand so we should not be responsible." If things get out of hand, the protester is responsible and should be punished for the act, but to say the motivation is an aggravating factor says the act itself is even worse because of the motivation. CHAIRMAN TAYLOR said, regarding the WTO protest, from the reports he has seen, nothing got out of hand, it was well planned and orchestrated to create mob violence in downtown Seattle. He stated: Inability to show total conspiracy on the part of those individuals - somehow it's okay now to yell fire in a crowded theatre if you're doing it for the right reason but the judge shouldn't consider that the outcome of your act, if you were not doing it for some politically correct reason, that somehow the judge has to have blinders on and go, oh no. You were Mahatma Gandhi in the middle of the theatre and you just yelled fire and it happened to get out of hand and you didn't do it for any other reason but if you were part of the WTO protesters and you sent a person into every single theatre in town and the yelling of fire occurs all at the same time, that the judge is not supposed to consider that as an aggravating factor? That was what your criminal conduct was designed to do? MS. RUDINGER stated that shouting fire in a crowded theatre with the obvious intent of causing a panic would not be protected speech. In the example of a protest that gets out of hand, even if there was a conspiracy to cause a riot, she felt Chairman Taylor was saying that some people were caught and some were not so this would be a way to tie in those who weren't caught. CHAIRMAN TAYLOR said he was not suggesting that at all. MS. RUDINGER said SB 344 only comes into play at sentencing, after a person has been convicted. CHAIRMAN TAYLOR said SB 344 only comes into play after all of the events have occurred. The person was found guilty and is standing before the court to be sentenced. He said Ms. Rudinger is telling him that the Alaska Legislature can't tell the judge to look into the heart of the individual and the heart of the action that occurred to determine what the action was designed to accomplish - whether the intent of the protester was to be part of a group to intimidate and coerce another group of people, just like a lynching was intended to. He asked Ms. Rudinger how she makes the fine line distinction between that which is a protected designed- to-do activity because it might involve speech and is a criminal act, and that which is not protected. He said apparently it is politically correct to use hate crime legislation and to use, as an aggravator, somebody who lynches a black person, yet it is not politically correct to use, as an aggravator, somebody who tears up downtown Seattle, puts people in hospitals and causes mayhem. MS. RUDINGER responded that most Alaskans would want a person who threw a rock through a window to be punished but would not think of that act as terrorism. CHAIRMAN TAYLOR said maybe his act wasn't designed for that purpose. MS. RUDINGER said, regarding Chairman Taylor's question on how to draw that line, she agrees it is a difficult line to draw so she would look to the First Amendment, which she read parts of. The First Amendment provides for the right of people to peaceably assemble and to petition the government for a redress of grievances. She said that according to Section (C) of SB 344, the aggravating factor would apply to acts that "affect the conduct of a unit of government;". Therefore redressing the government for grievances would be the motive. CHAIRMAN TAYLOR clarified that it applies to criminal conduct used to influence government and asked what is so shocking about that. He pointed out that by statute, one cannot coerce or financially threaten a seated legislator on how they vote. MS. RUDINGER said the ACLU agrees with that statute but SB 344 doesn't affect it. She said: We've already got criminal conduct. We've got a conviction and now we're at sentencing. This bill really says [it applies if] that criminal conduct was designed to (A)(B)(C)(D) and the (A)(B)(C)(D) look like the First Amendment's goal of protecting - affecting change. It's the motivation that is the aggravating factor. The motivation is affecting political change, the behavior should be punished and we completely agree, no one has a right to use violence or force against people or property for any reason - we agree. CHAIRMAN TAYLOR said there must be some reasons for which the ACLU is saying there should be no aggravators. MS. RUDINGER stated it is not the conduct, it's the idea behind it that SB 344 is affecting. She clarified that she is saying those should not make the sentence worse; they should not be aggravators. CHAIRMAN TAYLOR said he has a difficult time working that rationale into watching the Twin Towers collapse on September 11. He can't believe those acts were any other than criminal acts designed to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, affect the conduct of a unit of government, or influence the policy of a private enterprise by intimidation or coercion. He said in essence, Ms. Rudinger is saying those perpetrators should be charged with violating flight laws of the U.S. Government and that conduct should be punished. MS. RUDINGER disagreed and said her caution to the Legislature is that SB 344 will "throw the baby out with the bath water." Alaskans need protection from real terrorists but SB 344 is worded so broadly it could sweep into its scope protected First Amendment activity by protesters. CHAIRMAN TAYLOR said his difficulty in understanding her concern is: The fellow who goes out because he's all concerned about the environment and drives ceramic spikes into a tree because he knows that the detection unit for metal objects will not register the ceramic spike, and then the ceramic spike in the tree ends up in a mill in Oregon where it goes through, and he knows that it's going to that plant, it goes through a high speed saw. The saw hits the ceramic spike and the saw blows up and kills the workman inside the plant. Now those are actual facts. What's he guilty of - of trespassing on the tree? Or did he intend and was his act and conduct designed to intimidate and coerce an entire section of our population. And if there's something in there about his freedom of speech because he thought he was doing it for some good purpose, I'm having a hard time understanding your analogies. MS. RUDINGER said he would be guilty of the criminal conduct, which gets him to the sentencing phase. CHAIRMAN TAYLOR asked if, at the sentencing stage, the judge should consider why he was motivated to design and carry out the act. MS. RUDINGER said at the sentencing phase, the fact that somebody wanted to affect political change should not be an aggravating factor on the sentence. The sentence should be harsh because someone died but the motivation of wanting to affect change should not be the factor that makes the sentence worse. CHAIRMAN TAYLOR replied: The Unabomber should not be - should not have his sentence enhanced because of the thing that motivated him to blow people up? He should only be convicted of and sentenced to whatever damage, I guess, the bomb caused when it went off? Nobody should consider his motivation for doing it? I find that difficult to understand why you would expect the judge to have those blinders on. MS. RUDINGER said that is not what she is saying. She is saying that SB 344 is so broadly worded that in his attempt to go after real terrorism, he is sweeping into the scope of this bill people who the ACLU doesn't think of as terrorists. She noted if an abortion protester uses force to block a person from entering a clinic, the protester will be arrested for assault or battery but the motivation could have been to affect change and should not be an aggravating factor in sentencing. She pointed out that the First Amendment does not protect a person who uses criminal acts to affect change, and SB 344 does not change that. CHAIRMAN TAYLOR noted that civil disobedience is not civil if a person hurts another; the act is criminal. The Constitution does not sanction criminal acts as free speech. MS. RUDINGER said the ACLU is not saying that the act is an act of free speech. The act is an act of violence. She said the ACLU agrees with the premise that criminal conduct should be punished but it does not agree the sentence should be harsher because the criminal conduct was done to make a political statement. The ACLU believes doing so could be dangerous because it will lead to prosecution of unpopular political ideas as an aggravating factor. CHAIRMAN TAYLOR said he understands Ms. Rudinger's point and appreciates the discourse, as it is important to have it on the record. There was no further testimony on SB 344. SENATOR COWDERY moved SB 344 to the next committee of referral with individual recommendations. CHAIRMAN TAYLOR announced that without objection, SB 344 moved to the next committee of referral.