SB 11-HATE CRIMES  2:10:55 PM CHAIR FRENCH announced the consideration of SB 11. THOMAS OBERMEYER, staff to Senator Davis, introduced SB 11 speaking to the following sponsor statement: This bill increases the sentencing for crimes motivated prejudice, bias, or hatred based on the victim's race, sex, color, creed, physical or mental disability, sexual orientation, gender identity, ancestry, or national origin. This new crime can only be committed when a person commits some underlying crime and the person directed the conduct constituting the crime at the victim due to one of the listed characteristics of the victim. The new crime increases the classification of the underlying crime one level. Without creating a new list of "hate crimes" under AS 11.76, new Sec. 11.76.150 simply reclassifies the level of any crime up one notch if motivated by prejudice, bias, or hatred based on the victim's race, sex, color, creed, physical or mental disability, sexual orientation, gender identity, ancestry, or national origin. For example, a class B misdemeanor becomes a class A misdemeanor; a class A misdemeanor becomes a C felony; a class C felony becomes a B felony, etc. Such reclassification, of course, increases the penalties appropriate to the classification in sentencing under AS 12.55. The bill also amends AS 12.55.155(c)(22), an aggravating factor as sentencing for felonies, by adding "sexual orientation" and "gender identity" to the list of protected characteristics. The need for this bill is demonstrated by increasing reports of violence against homeless persons, minorities, religious groups, and others motivated by prejudice, bias, and hatred in Alaska and across the country in our highly diverse and multicultural society. When crimes are committed because of people's differences, the effects reverberate beyond a single victim or group into an entire community, city, state, and society as a whole. While this bill alone cannot eliminate prejudice, bias, or hatred, it will send a message that Alaskans will not tolerate hate crimes in any form, and sentencing for them will be substantially increased. 2:14:09 PM SENATOR MCGUIRE asked if he'd read the February 16, 2011 letter from the ACLU. MR. OBERMEYER answered yes; Mr. Mittman was concerned that the language didn't conform to the language in the federal bill. However, the drafter indicated that it would be unnecessary to add the federal language because most of this comes under Rule 404 relating to Character Evidence Not Admissible to Prove Conduct. Furthermore, it's understood by prosecutors and has worked well in the past. SENATOR MCGUIRE said she liked the idea of using the language in the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act because it maintains consistency, but she was also looking for a comment on the examples on page 2 of the letter that delineate between two situations of offering evidence. These examples of racism are repugnant, but the right to speak and freely associate is protected. The ACLU is saying that the language in the bill is overly broad and vague and instead suggests the following: In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing the impeachment of a witness. SENATOR MCGUIRE asked Mr. Obermeyer to comment. 2:18:56 PM MR. OBERMEYER reiterated that Mr. Luckhaupt's view was that the additional language was unnecessary. Prosecutors deal with this language on a daily basis and have been successful with the current definition of aggravation under AS 12.55.155(c)(22). Mr. Luckhaupt believes that nothing in SB 11 overrides the rules of evidence. He suggested the committee get additional information from the drafter and the Department of Law (DOL) before making any changes. SB 11 simply seeks to change the definitional aggravators, including sexual orientation and gender identity, without addressing additional associational rights. He mentioned the paint ball attacks targeting Natives that precipitated the bill initially and noted that Senator French indicated that proving motive can be very difficult for prosecutors, even in the best of circumstances. CHAIR FRENCH assured Mr. Obermeyer that the committee would get a good array of advice before the bill is passed. He then opened public testimony. 2:23:16 PM SLADE MARTIN, representing himself, testified in support of SB 11. He stated that he became aware of the bill while attending the Youth Policy Summit and was immediately intrigued. Buckling down on the consequences for committing acts of hate based on any of the protected clauses is an amazing idea, he said. Doing so would send a message that Alaska cares about its residents and their safety. Victims would regain a sense of safety, justice, and trust in the legal system. Victims often feel confused, self-loathing, alone, and scared. Sometimes they are suicidal. Suicide is a problem in this state so passing this bill may be a step toward prevention. Everyone is aware of the epidemic of teen bullying based on sexual orientation where suicide has been the unfortunate end result. Mr. Martin said he had experienced hate based on his sexual orientation and the experiences were terrifying. As violence becomes more prevalent and accepted, he fears for himself, his loved-ones, the community, and future generations. 2:25:49 PM SHAYLE HUTCHISON, Board Member, Alaskans Together for Equality, stated that passing SB 11 is a way to increase the safety of residents and the sense of justice for Alaska communities. When a person is assaulted he or she feels fear, oppression and trauma, but when a person is attacked based on bias it affects an entire group of people. It changes the dynamics of how a community functions. It changes how people act in public places, where they go, how they walk down the street, and how they express themselves. Apart from the psychological effect, violence that is based on bias increases the opportunity for a retaliatory attack followed by a counter retaliatory act. That ripple of violence will continue until there's a strong message that these kinds of crimes will not be tolerated. The Legislature has the opportunity to send a strong message by passing SB 11. MS. HUTCHISON said she particularly appreciates that sexual orientation and gender identity were added. In Alaska we need to send a message that a person has an absolute right to believe what he or she wants to believe and to hold the values he or she wants to hold, but no one has a right to impose their beliefs or values on another person using violence, coercion, oppression, or fear. 2:29:19 PM NELSON ANGAPAK, Senior Vice President, Alaska Federation of Natives, requested that the AFN written statement be incorporated into the record. He proposed a moment of silence and then stated that 66 years ago when the Territorial Senate met to discuss equal rights, many spoke against this and refused to recognize that this was a problem. Elizabeth Peratovich spoke to the issue of prejudice and injustice stating, "I would not have expected that I, who am barely out of savagery, would have to remind gentlemen with five thousand years of recorded civilization behind them, of our Bill of Rights." MR. ANGAPAK further stated that the Alaska Federation of Natives fully supports elevating the punishment for hate crimes based on race, [ sex, color, creed, physical or mental disability, sexual orientation, gender identity, ancestry, or national origin.] They hope that elevating the penalties will serve as a deterrent. He urged the committee to report SB 11 from committee and speak favorably when it reaches the Senate floor. 2:33:50 PM KATE BURKHART, Executive Director, Alaska Mental Health Board (AMHB)and Advisory Board on Alcoholism and Drug Abuse and Statewide Suicide Prevention Council, said she would focus on why the mental health board supports SB 11 and the protection it affords this unique constituency. According to the Department of Justice (DOJ), people who have a disability are 2-3 times more likely to be the victim of a violent crime. Sometimes the attack is based solely on the disability, which leads AMHB to believe that this additional protection is appropriate. The DOJ reports that of the crimes that are motivated based on hate toward a suspect class, the crimes against people with disabilities are in the minority. Most hate crimes occur based on race, faith affiliation, and then gender. However, of the victims who report being targeted because of their disability, three-fourths of the attacks are because of a mental health or cognitive disability. DOJ also reports that half of those victims report multiple disabilities, which compounds their vulnerability. The Alaska Mental Health Board supports this prioritized protection, but it's also important from an education and policy-making standpoint. The National Council on Disability, the National Center for Victims of Crime, and the Association of University Centers on Disability have called for increased public education and policy changes to prevent victimization of people with disabilities. SB 11 goes a long way to achieve those goals. 2:36:46 PM KELLI BURKINSHAW, Board Member, Alaskans Together for Equality, stated that as a member of a board that advocates for gay, lesbian, bisexual, and transgender rights, she would encourage the committee to pass the bill as quickly as possible. 2:37:44 PM JEFFERY MITTMAN, Executive Director, Alaska Civil Liberties Union (ACLU), said SB 11 is an important piece of legislation and the ACLU is gratified to see that gender identity has been included. Statistics show that transgender individuals are targeted for violence. It's important, however, to balance these protections with First Amendment rights of speech and association. While the ACLU doesn't support repugnant speech or hateful groups, it is incumbent on them to protect the right of individuals to say things that are hurtful and hateful. MR. MITTMAN pointed out that as currently drafted, the bill is susceptible to a facial challenge. Without the limiting language that he suggested in the February 16, 2011 letter to the committee, SB 11 could be construed to chill First Amendment associational rights. The limiting language would not harm the bill because it would not limit the ability to bring prosecutions, but it would make it clear that the evidence must relate commission of a crime. He urged the committee to work with DOL, the sponsor, and the drafter to make the suggested modifications. SENATOR PASKVAN asked if attacks on homeless people would fit within one of the classifications in the bill. MR. MITTMAN said yes to the extent that the homeless person was targeted based on race or a physical or mental disability. But a homeless person who was of a majority race and not suffering from a disability, potentially could be left out of this protection. CHAIR FRENCH asked why the ACLU was raising First Amendment issues of associational rights when they weren't raised when the bill was introduced in previous years. 2:41:07 PM MR. MITTMAN replied they did raise similar issues when the bill was introduced last session. The ACLU suggested the sponsor include gender identity, which has been accomplished, but they also raised First Amendment concerns. He said he would forward that written testimony. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act makes explicit that because of associational and free speech issues, the evidence must be carefully limited. SENATOR WIELECHOWSKI asked if he believes that the current statute is unconstitutional because that language isn't included. MR. MITTMAN said the protections are currently in AS 12.55.155, the aggravator section. Potentially, the way the aggravating evidence is introduced could be susceptible to an as applied challenge, but because this bill creates the crime of motivation by prejudice, it raises the concern to a higher level. SENATOR WIELECHOWSKI noted that the statute says it's against the law to discriminate based on race so if the suggested language were adopted you couldn't introduce the fact that some was a member of the Ku Klux Klan, for example. I believe that would be relevant evidence in a racial discrimination case, he said. MR. MITTMAN reviewed the current statute and opined that it could potentially allow introduction of associational rights, and that introduction, on its own, is susceptible to an as applied challenge on First Amendment grounds. For example, a defendant would not be allowed to state that he or she had no bias whatsoever and open the door to evidence that he or she did in fact have bias. The ACLU believes that the language in the federal legislation strikes an appropriate balance. A prosecutor would be allowed to introduce necessary evidence to establish the elements of the crime, but not so broadly as to be susceptible to a constitutional challenge. CHAIR FRENCH said it's an interesting issue that the committee would ponder. 2:45:08 PM WANDA GREENE, President, NAACP Anchorage, stated that the local NAACP, in line with the national NAACP, supports SB 11. She noted that the national NAACP unanimously supported passage of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. Part of the NAACP mission is to ensure social and economic equality for all citizens to achieve equality of rights and eliminate race prejudice among citizens in the community and the state. The national NAACP has backed social issues such as this legislation to eliminate discrimination where ever it is found. She said she was pleased to see that gender identity, ancestry, or national origin was added to this legislation. 2:47:20 PM CHAIR FRENCH closed public testimony and announced he would hold SB 11 in committee.