SB 211-AGGRAVATING FACTOR: HOMELESSNESS  1:33:54 PM CHAIR FRENCH announced the consideration of SB 211. SENATOR WIELECHOWSKI joined the meeting. JANA KREOFSKY, legislative intern to Senator Bettye Davis, introduced SB 211 on behalf of the sponsor. She read the following sponsor statement into the record. SB 211 allows the court to increase the active term of imprisonment for felonies up to the maximum term of imprisonment, even for a first offense, for factors in aggravation. Current sentencing provisions allow imposition of a sentence above the presumption range set out in AS 12.55.125 based on race, sex, color, creed, physical or mental disability, ancestry, or national origin as set out in AS 12.55.155(c)(22). SB 211 adds "homelessness" as an aggravating factor to this section. The purpose of this statute is to deter and punish defendants motivated to harm homeless people who are particularly vulnerable and increasingly targets of crime. Violent crimes against the homeless increased 65 percent from 2005-2006, according to a 2006 report by the National Coalition for the Homeless. The 2006 numbers reflect a 170 percent increase since the organization's first study in 1999. This national trend is reflected in the more than 14,000 individuals who experience homelessness in Alaska each year, according to the 2005 Alaska Interagency Council on Homelessness report, "Keeping Alaskans Out of the Cold." This violence against the homeless has a direct impact on the victim, the victim's family, the community, and Alaska as a whole. 1:36:31 PM GEORGE BRIGGS, Executive Director, Juneau Cooperative Christian Ministry, "The Glory Hole", stated support for SB 211. The Glory Hole is a 40-bed homeless shelter and soup kitchen in Juneau. Over the course of a year he sees about 20 percent of Juneau's substantially high homeless population. During his 15 month tenure, he has seen crimes committed against homeless individuals committed for no apparent reason other than that they are homeless. Citing several examples, he said these are senseless acts of violence that target a very vulnerable population. Generally, homeless people want to be part of the community but they've been ostracized and have learned to be mistrustful. "This is a group of citizens that have a hard time trusting even me." As such, they're reluctant to report personal assaults to the police. Although he doesn't agree at all, he knows that some homeless individuals have the attitude that they deserve to be attacked. MR. BRIGGS said SB 211 will give the courts the ability to address crimes against the homeless in a different manner. This will help send the message that "you can't just walk around the street and beat up people just for the heck of it." 1:41:07 PM DANIEL UNGIER, United Way of Southeast Alaska, said he chairs the Juneau Homeless Coalition which looks at the root causes of homelessness. When he first heard about SB 211 he questioned adding homelessness as a separate factor, but that was before he knew anything about "Bum Fights Online." This privately made, low budget film series has played an integral part in the skyrocketing increase in violence against the homeless. These are videos of people who shout the phrase, "bum fights" and then attack someone who is playing a stereotypical homeless person. In particular this phenomenon is sweeping through young people and references are beginning to show up in mainstream Hollywood movies. The essential message is that it does no harm to beat up the homeless because they really aren't contributing to society. MR. UNGIER said he concluded that "homelessness" should be added as an aggravating factor because these people are being stereotyped and disproportionately targeted simply because of their homeless status. In fact, 21 percent of homeless people report being the victim of a violent crime compared to 1 percent of the general population. Bum fight videos have created the image that an easy way to have fun is to target and attack someone because of their specific status. MR. UNGIER said this legislation is about more than imposing stiffer sentences. It's about making a statement about this kind of crime and about reducing how often it happens. SB 211 sends a strong message; it counteracts stereotyping, and it could make a real difference. 1:45:54 PM SENATOR HUGGINS observed that in his dealings with homeless people, most of whom are veterans, he's concluded that often they're a victim of a crime by another homeless person. "What does that do to the definition we're doing here if it's a homeless person with a crime on a homeless person," he asked. MR. UNGIER replied he's heard stories along those lines but the statistics indicate that perpetrators are targeting people they don't know. "I don't know what the impact would be on homeless against homeless crimes," he said. CHAIR FRENCH suggested that the Department of Law representative might be able to provide an answer. SENATOR HUGGINS asked how couch-surfing teenagers would be addressed. MR. UNGIER said he understands that for the aggravating factor to apply, the person must be knowingly targeted for their homelessness. He wouldn't expect the law to apply to a teenager who is couch surfing. 1:48:29 PM SENATOR HUGGINS questioned how someone knows that another person really is homeless. MR. UNGIER explained that people who have just left a homeless shelter and people who fit the stereotype are targeted. SENATOR HUGGINS observed that in Anchorage there's a sizeable number of people who are sequestered somewhere off the street. "The common thing amongst them is if you fall asleep somebody will bong you on the head and take your fifth of whiskey or your sleeping bag or you bunny boots if it's really cold." It seems to be a cycle among a certain colony of people, he said. 1:50:18 PM SAMUEL J. FORTIER stated support for SB 211. He's practiced law in Anchorage for more than 25 years and some of his practice involves homeless advocacy. Referring to the suggestion that only homeless people target other homeless people, he said his experience is the opposite. Several years ago in Anchorage a group of youths took videos of paintball attacks on homeless people. Clearly that was a hate-related crime that focused on the category of homeless people. The purpose was to make fun of certain people and put it on video. "There was no basis in attacking those people other than the fact that they were homeless." 1:53:31 PM SENATOR THERRIAULT joined the meeting. MR. FORTIER relayed that on any given night there are about 3,500 people in Alaska who don't have homes. At least 700 of those individuals will be attacked and probably 20 percent of the attacks will be violent. The basis for the attacks isn't because someone is reaching for another person's bottle, he said. A number of the takings are on the basis that these people are homeless. "It's on the basis of status; it's on the basis of hate." We do have a responsibility for these individuals if we consider that they are among the most vulnerable, he said. The reasons for homelessness are varied; it's not simply because of mental problems or drug and alcohol abuse, although many homeless are faced with those problems. People are rendered homeless because of economic conditions too. There is a need for an aggravator, he said. We need to send a message that it's wrong to attack vulnerable people on the basis of status. Ours is an inclusive society that doesn't exclude people from basic protections and basic human rights. Discriminating against people on the basis of gender or race isn't permitted and people who are on the outskirts of society based on economic conditions should be similarly protected. 1:56:16 PM MR. FORTIER revealed that he was homeless in Dillingham in the early 1970s when housing was in short supply. The difference is that he was in a village where people take care of one another. "That's not so in a large city." When you're at the bottom of the economic heap in Anchorage you are preyed upon. It's time to add the aggravator for the most serious felonies. Consideration should also be given to including homelessness in other hate crime legislation, he said. 1:58:06 PM DIANNE SLIGHTER described herself as a concerned Juneau citizen who listened when Representative Andrea Doll introduced similar legislation. She said it's not difficult to identify a homeless person because their entire composure is different; they're sort of inside themselves. She drew a parallel between current violent attacks on homeless people and the violent gladiator sports from ancient times. "What difference is it today?" These vulnerable people are targeted just for sport and it's wrong. CHAIR FRENCH welcomed Representative Doll. 2:00:54 PM REPRESENTATIVE ANDREA DOLL said she is proud to have introduced legislation similar to SB 211. Many Americans are not all that far from homelessness but her reason for introducing the legislation relates to homeless women with drug abuse problems. Often they aren't able to go into the AWARE women's shelter and they don't feel safe in the other shelters in town. That places them in the vulnerable position of being on the street. They're worried about rape and assault and sometimes they're worried about not being treated fairly by the police. She said she realized that she couldn't build a shelter, although she'd like to work on that. What she could do is highlight these individuals' plight and show that we care about their value. Adding "homelessness" as an aggravating factor is one way to do that. CHAIR FRENCH asked the Department of Law to explain what it takes to prove an aggravator, what would happen if an aggravator were proved, and at what stage of the proceedings it has to be proved. 2:03:15 PM ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL) explained that this aggravating factor would be subject to the Blakely decision. The prosecution would have to prove beyond a reasonable doubt that the defendant directed the crime toward the victim because of their homeless status. "It would be a difficult aggravating factor to prove, as are others in this particular paragraph of aggravators." CHAIR FRENCH referred to the questions Senator Huggins posed earlier about defining who is homeless, knowing who is homeless, and about couch surfers. In his mind they highlight the difficulties should DOL try to prove this aggravator. MS. CARPENETI agreed it will be difficult. "This is not one we will be able to establish often." Initially she thought it would be a good idea to include a definition but then she realized that none of the other factors are defined in statute. It's something that the courts can apply when it's reasonable to do so. But it won't happen often. It would be even more difficult to prove that a homeless person targeted another homeless person because they were homeless. CHAIR FRENCH referred to Senator Huggins' example of one homeless person preying on another for their belongings and said to prove that the crime was based on homelessness you'd almost need a video of the person stating their motive into the camera. "Absent that sort of confession…it's going to be very difficult to prove." MS. CARPENETI agreed. 2:06:23 PM SENATOR WIELECHOWSKI asked if the person actually has to be homeless or if it's just the attacker's perception that they're homeless. For example, a person who is kicked out of their house and is attacked when they're sleeping on a park bench isn't really homeless, but the attacker thinks they are. MS. CARPENETI replied it would depend on the facts, but someone who was kicked out of their house could be considered homeless if they had no place to go. SENATOR HUGGINS said his concern is that this could be just another statute without teeth. "I'm not so sure the societal will to be able to follow through with some sort of oomph-no matter what we legislate-is there." CHAIR FRENCH asked what affect it would have on a sentence if this aggravator were proved. MS. CARPENETI explained that it would allow the sentencing court to increase the presumptive sentence to the maximum for that level of crime. For example, if it were established, the sentencing court could sentence to the maximum term of 20 years for a class A felony. CHAIR FRENCH asked if the judge would be required to increase the sentence. MS. CARPENETI said no; the court has more discretion once aggregating factors and mitigating factors are established, but it does not have a mandatory effect. 2:09:31 PM CHAIR FRENCH summarized that it would be a fact-driven inquiry after which the judge would consider the elements and decide whether or not to add time to the sentence. MS. CARPENETI said that's correct. CHAIR FRENCH referred to Senator Huggins' concern about the effectiveness of adding "homelessness" to the list of aggravators and said the point is well taken. "It may sit there unused on the books for decades." Similarly, he's never seen creed alleged as an aggravator, but it's on the list. This is more a statement of our values. "If someone is going out and attacking a person just because they're homeless and you have the ability to prove that … it's worthy of having that word on the books." The prosecutor will have that tool in their toolbox and the judge will have the ability to "make an upper departure on the sentence because of the nature of the assault." 2:10:29 PM SENATOR THERRIAULT said he doesn't disagree but he understands Senator Huggins' concern. "We pat ourselves on the back, we add another line - it may never be used except for the one instance where, as you said, there's a video tape." I don't have a problem if the bill passes but this doesn't solve the homeless problem or the issue of violence against the homeless, he said. SENATOR THERRIAULT noted that the sponsor statement says that according to a national study violent crimes against the homeless have increased by 65 percent from 2005-2006. It also says that the national trend is reflected in the more than 14,000 individuals who are homeless in Alaska. He asked if there's a direct link and there has been a 65 percent increase in violence against the homeless in Alaska. MS. KREOFSKY clarified that is a national statistic and although violent crime against the homeless is reported to be rising in Alaska, she doesn't have specific data. 2:13:11 PM TOM OBERMEYER, Aide to Senator Davis, highlighted several definitions of "homelessness" and relayed that for the purpose of this section the definition is, "An individual who lacks a fixed regular and adequate nighttime residence or has a primary nighttime residence that is not designed for permanent living." Thus a person in one of those temporary situations could be identified as homeless. The statutes don't mention perception of homelessness, but the term "knowingly" is used. That goes to Senator French's point of trying to prove someone knowingly did this by putting the attack on the Internet, he said. What is most important though is that this will send a message to the general population to be more sensitive to homeless people in general. CHAIR FRENCH asked Mr. Obermeyer to submit the definitions to his office. He would hold SB 211 so the committee could consider whether or not the term "homelessness" is adequately understood to allow a jury to make a good decision.