Legislature(2003 - 2004)

04/28/2004 08:06 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG                                                                    
                                                                                                                                
SENATOR GEORGIANNA  LINCOLN, sponsor of SB  246, informed members                                                               
that she distributed to members  the previous evening the answers                                                               
to 17  questions posed by  the Chair. In addition,  she submitted                                                               
letters  from   the  Juneau,   Anchorage  and   Fairbanks  police                                                               
departments and the  Alaska Association of the  Chiefs of Police,                                                               
all  of which  endorse  SB  246. She  noted  that various  groups                                                               
nationwide endorsed  the federal legislation, entitled  the Local                                                               
Law  Enforcement Enhancement  Act. She  noted that  Ms. Carpeneti                                                               
from  the Department  of Law  was available  to answer  technical                                                               
legal questions.                                                                                                                
                                                                                                                                
SENATOR LINCOLN  then asked members  to consider an  amendment to                                                               
page 3,  line 8: after  the word "hatred" insert  "AS 11.76.200".                                                               
She explained,  "The purpose of that  is when referring to  a new                                                               
category  of crime  that is  motivated  by hate  that this  crime                                                               
would be charged  under that section of our statutes  and so it's                                                               
just a clarifying amendment."                                                                                                   
                                                                                                                                
CHAIR  SEEKINS  said  he  asked   for  an  independent  sectional                                                               
analysis.                                                                                                                       
                                                                                                                                
SENATOR LINCOLN replied:                                                                                                        
                                                                                                                                
     Mr.  Chairman -  and  I didn't  misread  when you  said                                                                    
     independent because when I received  that two days ago,                                                                    
     I was  trying to get as  much of that information  as I                                                                    
     could. We  did call over  to -  as independent -  I did                                                                    
     call over  to [Legislative Legal] and  [they] said that                                                                    
     they were  going to try to  get that to us  before this                                                                    
     meeting. We have  not received that so  I apologize for                                                                    
     that.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS  suggested "walking" through the  bill with Senator                                                               
Lincoln to understand her intent.                                                                                               
                                                                                                                                
[At  that  point  the  committee  realized  that,  inadvertently,                                                               
members  never   received  a  sectional  analysis   that  Senator                                                               
Lincoln's  staff  thought was  distributed.  She  offered to  get                                                               
copies.]                                                                                                                        
                                                                                                                                
CHAIR SEEKINS asked Senator Lincoln her intent in Section 1.                                                                    
                                                                                                                                
SENATOR LINCOLN  explained that Section  1 adds a new  section to                                                               
AS 09.55  that authorizes  a civil  lawsuit for  compensatory and                                                               
punitive damages against  a person who causes  physical injury or                                                               
property  damage with  the  intent to  intimidate  or harass  and                                                               
authorizes a  lawsuit against the  parent or legal guardian  of a                                                               
minor for  the same if the  suit is based on  reckless conduct by                                                               
the parent  or legal guardian.  It also prohibits  lawsuits under                                                               
this section against the state or its political subdivisions.                                                                   
                                                                                                                                
CHAIR  SEEKINS asked  if Section  1 will  allow a  complainant to                                                               
bring a civil lawsuit.                                                                                                          
                                                                                                                                
SENATOR LINCOLN affirmed that is correct.                                                                                       
                                                                                                                                
CHAIR SEEKINS asked how "harassment" is defined in that regard.                                                                 
                                                                                                                                
SENATOR  LINCOLN   explained  the  definitions   of  "prejudice",                                                               
"bias", and "hatred"  are on page 3 and those  are FBI terms from                                                               
the Department of Justice.                                                                                                      
                                                                                                                                
MS.  ANNE CARPENETI,  representing the  Criminal Division  of the                                                               
Department  of Law,  noted  the Administration  has  not taken  a                                                               
position on SB 246. She noted  that she would be surprised if the                                                               
word  "harassment" is  defined in  criminal  law and  she is  not                                                               
aware of  such a definition  in civil  law. She pointed  out that                                                               
does not mean  every term used in civil or  criminal law needs to                                                               
be defined  because often  the common  understanding of  terms is                                                               
used.                                                                                                                           
                                                                                                                                
CHAIR SEEKINS said he was  trying to determine what harassment is                                                               
if a person could be sued for it.                                                                                               
                                                                                                                                
SENATOR FRENCH  pointed out  that with  any new  provision, there                                                               
will be  some "finding  out" as people  bring lawsuits  with good                                                               
and bad  arguments. He  noted that burning  a cross  in someone's                                                               
front yard would be a good  claim under the statute but hurling a                                                               
racial epithet  at another might  not because the  defendant must                                                               
have  physically injured  the plaintiff  or damaged  property. He                                                               
noted the jury would make that determination.                                                                                   
                                                                                                                                
CHAIR  SEEKINS   argued  that  he   would  prefer  that   the  60                                                               
legislators define that term.                                                                                                   
                                                                                                                                
MS.  CARPENETI said  the statute  describes the  civil action  as                                                               
discriminatory harassment and then goes  on to describe the basis                                                               
of  that  action.  It  does  not necessarily  use  that  term  in                                                               
establishing what must be proved.                                                                                               
                                                                                                                                
CHAIR SEEKINS asked Ms. Carpeneti to review AS 11.61.120.                                                                       
                                                                                                                                
MS. CARPENETI explained:                                                                                                        
                                                                                                                                
     It  establishes the  crime of  harassment  to do  these                                                                    
     various  things like  taunt  another  person or  insult                                                                    
     them, telephone them  repeatedly at inconvenient times,                                                                    
     or make an obscene or anonymous telephone call.                                                                            
                                                                                                                                
CHAIR SEEKINS  asked, "Under this  definition, which we  have the                                                               
crime  of harassment,  since this  definition  exists in  another                                                               
part  of statute,  would that  be  the likely  standard that  the                                                               
court would use?"                                                                                                               
                                                                                                                                
MS. CARPENETI acknowledged  that she is not well  versed in civil                                                               
law, but replied:                                                                                                               
                                                                                                                                
     They might  look at  that statute and  say, well  for a                                                                    
     crime that's  what a  person has to  prove but  I think                                                                    
     this is different  and the reason I think  that is this                                                                    
     civil action  tells you what  discriminatory harassment                                                                    
     is against another,  and then it says what  you have to                                                                    
     do - cause physical injury  to the individual or damage                                                                    
     the property  with the intent  to intimidate  or harass                                                                    
     the individual  and they would  probably look  at that.                                                                    
     ...Generally, civil lawsuits -  judges look to the case                                                                    
     law rather than  defined terms, like we  do in criminal                                                                    
     law because  in criminal  law it's more  important that                                                                    
     we  have a  definite  term. In  civil cases  generally,                                                                    
     judges and juries make those  decisions and they appeal                                                                    
     them and  courts of appeals  look at the basis  for the                                                                    
     case and then  that case is decided  and everybody gets                                                                    
     to  learn from  that  case and  we go  on  and use  the                                                                    
     direction  from the  juries and  the  judges. So  civil                                                                    
     lawsuits generally are more -  terms tend to be defined                                                                    
     more by case law rather than legislative decision.                                                                         
                                                                                                                                
CHAIR  SEEKINS asked  if a  person caused  physical injury  to an                                                               
individual  or damage  to  the property  of  an individual,  that                                                               
would constitute criminal behavior.                                                                                             
                                                                                                                                
MS.  CARPENETI   said  it  would  depend   on  the  circumstances                                                               
surrounding how  that damage was  inflicted. If the person  had a                                                               
culpable  mental state  of intent  knowing  recklessness or  with                                                               
criminal negligence, there might be a crime involved.                                                                           
                                                                                                                                
CHAIR SEEKINS  asked if a  person could  be guilty of  that crime                                                               
without culpability under the crime of harassment.                                                                              
                                                                                                                                
MS. CARPENETI did not believe so  because a person must intend to                                                               
harass  or annoy  another person  so that  would be  the culpable                                                               
mental state  the state would  have to prove beyond  a reasonable                                                               
doubt.                                                                                                                          
                                                                                                                                
CHAIR SEEKINS  asked if they  would have  to have intent  for the                                                               
civil action.                                                                                                                   
                                                                                                                                
MS. CARPENETI said yes.                                                                                                         
                                                                                                                                
CHAIR SEEKINS surmised, "So, we  already have in statute criminal                                                               
law that would also allow them  to bring civil actions to recover                                                               
for  those damages,  if not  part of  the judgment  if they  were                                                               
convicted for  restitution, which  is normal, is  it not  now for                                                               
judges  and courts  to  order restitution  for  someone who  does                                                               
property damages or individual damages?"                                                                                        
                                                                                                                                
MS. CARPENETI  noted the Constitution  requires that a  person be                                                               
compensated.                                                                                                                    
                                                                                                                                
CHAIR  SEEKINS  continued,  "And  we  already  have  a  crime  of                                                               
harassment, which would fit into  this. If someone did the things                                                               
that  they  could sue  for  under  this  section, they  have,  in                                                               
effect, committed this crime of harassment, have they not?"                                                                     
                                                                                                                                
MS.  CARPENETI  said  she  did  not know  because  the  crime  of                                                               
harassment  is  limited to  those  various  acts. She  explained,                                                               
"This  civil action  is a  whole lot  broader in  terms of  how a                                                               
person could recover."                                                                                                          
                                                                                                                                
CHAIR SEEKINS  said he is  trying to  find out what  this section                                                               
gives to people  that they do not already have  under the law. He                                                               
noted under current law a person  could be charged for a crime of                                                               
harassment and the  victim could maintain a  civil action against                                                               
that person if damage occurred.                                                                                                 
                                                                                                                                
SENATOR LINCOLN replied:                                                                                                        
                                                                                                                                
     I  think that  Ms. Carpeneti  already stated  that, Mr.                                                                    
     Chairman, that  as she read  from the laws that  are on                                                                    
     the  books that  it is  not specific  and that  when we                                                                    
     talk  about  the  discriminatory  harassment  that  has                                                                    
     caused  physical injury  to  an  individual or  damaged                                                                    
     property  because of  the  intent  to intimidate.  This                                                                    
     expands what is on the books. It makes it very clear.                                                                      
                                                                                                                                
CHAIR SEEKINS  asked how SB 246  will expand that. He  then added                                                               
the crime  of harassment is an  action with the intent  to harass                                                               
or  annoy  another  person:  that   person  insults,  taunts,  or                                                               
challenges  another  person in  a  manner  likely to  provoke  an                                                               
immediate violent response, etcetera.  He questioned whether that                                                               
is a low standard.                                                                                                              
                                                                                                                                
MS.  CARPENETI said  crimes  must  be proved  by  proof beyond  a                                                               
reasonable  doubt  while  civil  actions  must  be  proved  by  a                                                               
preponderance  of the  evidence,  very  different standards.  She                                                               
suggested, "Maybe  I'm just  used to what  we do  for harassment.                                                               
It's often  in a  domestic violence  context, making  phone calls                                                               
and hanging up, doing various  things. Under these circumstances,                                                               
not necessarily  racially related,  it's not  necessarily related                                                               
to a particular  person and it's a class B  misdemeanor, which is                                                               
a lower [indisc.]."                                                                                                             
                                                                                                                                
CHAIR SEEKINS responded,  "And I guess - I'm saying  there on the                                                               
crime side it happens to  anybody regardless of what their status                                                               
is. I mean it's universal, is that not correct?"                                                                                
                                                                                                                                
SENATOR  OGAN  said the  legislature  should  probably amend  the                                                               
harassment laws to  exclude those of us that sit  on this side of                                                               
the table from the citizens sometimes.                                                                                          
                                                                                                                                
SENATOR FRENCH  offered, as an  example to  differentiate between                                                               
the  bill and  criminal law,  the crime  of cross  burning. If  a                                                               
black family  was preparing  to move  into a  predominantly white                                                               
neighborhood and found that some  neighbors had burned a cross on                                                               
their lawn  the night  before, that  would not  fit the  crime of                                                               
harassment  because  that action  is  not  likely to  provoke  an                                                               
immediate response.  However, the  property was damaged  with the                                                               
intent to harass because of race.                                                                                               
                                                                                                                                
CHAIR SEEKINS asked what the damages would be.                                                                                  
                                                                                                                                
SENATOR FRENCH  said that would  be for  the jury to  decide. The                                                               
jury would have to take  into consideration whether, for example,                                                               
there was  a chanting crowd outside.  He suggested it is  hard to                                                               
analyze those scenarios outside of the factual context.                                                                         
                                                                                                                                
CHAIR SEEKINS  questioned why state employees  would be exempted,                                                               
and whether  they would  be exempted  regardless of  whether they                                                               
were working at the time.                                                                                                       
                                                                                                                                
SENATOR LINCOLN said that was  question number 11 and the drafter                                                               
from  Legislative Legal  and Research  Services responded  that a                                                               
person's remedy  would be limited  to actions under AS  09.50 and                                                               
.65 and  42 U.S.C  or normal  actions under  common law  or other                                                               
principles.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS asked  if a police officer who burned  a cross on a                                                               
neighbor's yard could not be sued for discriminatory harassment.                                                                
                                                                                                                                
SENATOR LINCOLN said that was  question 15 about the Alaska State                                                               
Troopers.  She read  the response,  "Alaska's  law currently  has                                                               
several  provisions   that  serve  to  protect   law  enforcement                                                               
officers...."  She then  noted, "And  then it  talks about  which                                                               
statutes  those are  under  12.55 and  talks  about the  parallel                                                               
between the statutes,  the hate crime, the  police officers, with                                                               
the protection that is already on the books for them."                                                                          
                                                                                                                                
CHAIR  SEEKINS asked  if a  police  officer in  uniform could  be                                                               
charged with criminal harassment.                                                                                               
                                                                                                                                
MS. CARPENETI believed  so. She explained, "What this  does is it                                                               
says that  this new statutory cause  of action, if it  is adopted                                                               
by the legislature,  does not create a statutory  cause of action                                                               
against a  law enforcement officer under  these circumstances. To                                                               
the extent that there are other  remedies on a civil basis that a                                                               
person  could bring  against  a person  who's  a police  officer,                                                               
these provisions would not affect that."                                                                                        
                                                                                                                                
CHAIR SEEKINS said if other  remedies exist for a police officer,                                                               
other remedies exist for everyone.                                                                                              
                                                                                                                                
SENATOR LINCOLN replied:                                                                                                        
                                                                                                                                
     Mr.  Chairman,  I don't  know  how  to  say this  in  a                                                                    
     different  way   for  you  but   when  you   ask  about                                                                    
     harassment,  there is  nothing on  the books  right now                                                                    
     that speaks to harassment of  this category of folks or                                                                    
     damage to property under hate  crimes. There is nothing                                                                    
     on the  books for  that and what  we are  attempting to                                                                    
     do, just as  with the paintball incident,  is that that                                                                    
     crime  gets elevated  to a  misdemeanor. You  know, the                                                                    
     harassment  is  a  class  B  misdemeanor  and  it  gets                                                                    
     elevated to a higher offense  so that we send a message                                                                    
     out. That's  the whole intent  of this bill. We  send a                                                                    
     message  out  that hate  crimes  are  not going  to  be                                                                    
     tolerated  in the  state. ...If  you  read the  letters                                                                    
     from the police departments  who go out and investigate                                                                    
     these  types of  crimes that  are supportive  of having                                                                    
     different  penalties   for  people   who  go   out  and                                                                    
      knowingly, and I have to say knowingly because it's                                                                       
     not just done very lightly...                                                                                              
                                                                                                                                
CHAIR SEEKINS  interjected to  say he is  not only  talking about                                                               
hate  crimes  but also  about  the  civil  action that  could  be                                                               
brought.  Nothing in  the bill  says  the person  must have  been                                                               
convicted  of a  hate crime  in order  for a  civil action  to be                                                               
brought.                                                                                                                        
                                                                                                                                
SENATOR LINCOLN  replied, "Well,  Mr. Chairman,  it says  who has                                                               
caused  physical injury  to  the individual  or  damage with  the                                                               
intent  because of  the individual's  actual  or perceived  race,                                                               
sex,  color,   creed,  physical  or  mental   disability,  sexual                                                               
orientation, ancestry or national origin."                                                                                      
                                                                                                                                
CHAIR  SEEKINS expressed  concern that  this would  allow someone                                                               
who has gone to court and is  found innocent to also have a civil                                                               
action brought against  him or her, regardless of  whether or not                                                               
that person was charged with the crime.                                                                                         
                                                                                                                                
SENATOR FRENCH commented  that happens all of  the time, possibly                                                               
because of  the difference in  the burden of proof.  He mentioned                                                               
the O.J. Simpson case as an example.                                                                                            
                                                                                                                                
CHAIR SEEKINS asked why a person  who was not convicted of a hate                                                               
crime  should be  subject to  a discriminatory  harassment action                                                               
for recovery under this process.                                                                                                
                                                                                                                                
SENATOR FRENCH expressed confusion  about the question but stated                                                               
that  strikes  him  as  the  difference  between  the  nature  of                                                               
criminal and civil law.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS commented  that during  the last  election, people                                                               
destroyed his  property by  tearing down  his campaign  signs and                                                               
that  might have  constituted a  hate crime,  but not  under that                                                               
section. He then directed members to section 2.                                                                                 
                                                                                                                                
SENATOR  LINCOLN said  that is  the  provision of  the bill  that                                                               
elevates the crime  to the next level of  offense by establishing                                                               
the  crime as  motivated by  prejudice,  bias or  hatred and  was                                                               
knowingly committed. She pointed out  that a class B felony, such                                                               
as an assault in the second degree,  would be a class A felony if                                                               
motivated by prejudice, bias, or hatred.                                                                                        
                                                                                                                                
CHAIR  SEEKINS asked  Senator Lincoln  if she  did the  sectional                                                               
analysis herself.                                                                                                               
                                                                                                                                
SENATOR LINCOLN said she did with help from many people.                                                                        
                                                                                                                                
TAPE 04-55, SIDE A                                                                                                            
                                                                                                                                
CHAIR SEEKINS asked how the crime is elevated to the next level.                                                                
                                                                                                                                
SENATOR LINCOLN  explained that  according to  the bill,  a crime                                                               
that  is   a  class  A   misdemeanor  would  become  a   class  B                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
CHAIR SEEKINS expressed confusion and  said it appears that there                                                               
would  be two  crimes because  a  person convicted  of one  crime                                                               
would be guilty of another.                                                                                                     
                                                                                                                                
SENATOR FRENCH said there is no  way a person would get convicted                                                               
of  one crime  and  punished  for another.  The  person would  be                                                               
charged  with a  B  felony, which  might be  a  C felony  assault                                                               
motivated  by prejudice,  bias or  hatred. The  grand jury  would                                                               
have to return  a true bill on that indictment,  where the person                                                               
would be charged with a B felony.                                                                                               
                                                                                                                                
CHAIR SEEKINS  asked if a person  is charged with a  B felony and                                                               
the  prosecution believes  there  was a  motivator involved,  the                                                               
person would be  charged with one crime, that being  the crime of                                                               
motivation by prejudice.                                                                                                        
                                                                                                                                
SENATOR FRENCH thought that was correct.                                                                                        
                                                                                                                                
MS.  CARPENETI explained  the difference  between the  underlying                                                               
crime  and this  crime  is that  the state  would  have to  prove                                                               
between a reasonable doubt the motivation.                                                                                      
                                                                                                                                
CHAIR SEEKINS  asked if the  person would be  considered innocent                                                               
of the crime  if the state could not prove  the motivation beyond                                                               
a reasonable doubt.                                                                                                             
                                                                                                                                
MS. CARPENETI  said that would  depend on the  circumstances, but                                                               
the underlying  crime would be a  necessary part of it  so if the                                                               
jury found  that the state  did not meet  the burden of  proof of                                                               
beyond a  reasonable doubt on  the motivation, it could  return a                                                               
verdict on the underlying crime alone.                                                                                          
                                                                                                                                
SENATOR FRENCH noted, as an example:                                                                                            
                                                                                                                                
     Frequently, one  single death, one single  murder death                                                                    
     will result  in - you  know, you'll offer a  jury three                                                                    
     murder theories in  a grand jury and a  murder jury and                                                                    
     they'll consider  all three of those  theories and they                                                                    
     may  find  you guilty  of  all  three of  those  murder                                                                    
     theories and  then it all collapses  into one sentence.                                                                    
     And so in  this case, I can see you  offering a jury on                                                                    
     a C  felony assault -  you're going  to offer them  a B                                                                    
     felony  motivated  by  prejudice  and hatred  and  a  C                                                                    
     felony  on straight  assault and  the jury  will decide                                                                    
     whether you've  proved beyond  a reasonable  doubt that                                                                    
     it was motivated  by prejudice, bias or  hatred, and if                                                                    
     you didn't, they'll just say  - and then they'll decide                                                                    
     whether you  proved beyond a reasonable  doubt that you                                                                    
     actually committed the assault.                                                                                            
                                                                                                                                
CHAIR SEEKINS asked Mr. Luckhaupt  to address the construction of                                                               
the  bill  regarding   getting  to  a  crime   of  motivation  by                                                               
prejudice, bias or hatred.                                                                                                      
                                                                                                                                
MR. JERRY  LUCKHAUPT, legislative counsel, Legislative  Legal and                                                               
Research  Services, told  members as  Senator French  stated, the                                                               
person would be charged with  the underlying crime but basically,                                                               
both  offenses would  have  to  be charged  and  merged into  one                                                               
offense, similar to  the procedure for crimes  like conspiracy or                                                               
solicitation. The grand jury would  also return an indictment for                                                               
the  underlying crime  with that  specific  motivation. The  jury                                                               
would  have to  find the  person  guilty of  both the  underlying                                                               
crime and of doing it in a particular manner.                                                                                   
                                                                                                                                
CHAIR SEEKINS asked about the standard.                                                                                         
                                                                                                                                
MR.  LUCKHAUPT said  the  standard  of proof  would  be beyond  a                                                               
reasonable doubt on  each and every element. He  thought that the                                                               
mental state  is knowingly, rather  than intentional.  He pointed                                                               
out  that  the  use  of   knowingly,  which  is  one  step  below                                                               
intentionally,  will be  fairly  problematic  because the  courts                                                               
will consider  it as an  intentional mental state because  of the                                                               
recognition of motivation.                                                                                                      
                                                                                                                                
MS. CARPENETI  said in this  context, a culpable mental  state of                                                               
knowingly  means the  offender  knew  the person  he  or she  was                                                               
harming was in one of  the protected categories and committed the                                                               
offense for that  reason. She, too, agreed it is  very similar to                                                               
intentional under  these circumstances. She assumed  the drafters                                                               
used  the  word  "knowingly"  because  sometimes  "intentionally"                                                               
applies to the result.                                                                                                          
                                                                                                                                
MR.  LUCKHAUPT said  SB 246  was part  of a  governor's bill  two                                                               
years ago so it was originally  drafted by the Department of Law.                                                               
He was not sure why "knowingly"  was chosen but combined with the                                                               
motivation aspect  in the  bill, he  did not  know how  the court                                                               
could apply it other than as an intentional mental state.                                                                       
                                                                                                                                
SENATOR LINCOLN  confirmed that SB  246 is  the result of  a bill                                                               
that was  not enacted by  a previous legislature. She  noted that                                                               
she submitted  that bill but  the Governor and the  Department of                                                               
Law worked on it.                                                                                                               
                                                                                                                                
CHAIR SEEKINS  asked if other  methods in existing  statute could                                                               
address  Senator  Lincoln's intent  to  elevate  the penalty  for                                                               
these crimes.                                                                                                                   
                                                                                                                                
MR. LUCKHAUPT replied:                                                                                                          
                                                                                                                                
     Well,  there  are.  States,  as  they've  gone  through                                                                    
     dealing with bias crime legislation  and they've had to                                                                    
     take this  approach of  either trying  to create  a new                                                                    
     crime or trying to deal  with it as a sentencing aspect                                                                    
     and  so  you've   had  different  approaches  used...My                                                                    
     personal feeling as  a drafter is that  under the model                                                                    
     penal code,  our culpable mental states  are all things                                                                    
     that don't imply  values in and of  themselves, or they                                                                    
     are  not   -  intentional  conduct,   knowing  conduct,                                                                    
     reckless  conduct or  criminally  negligent conduct  in                                                                    
     and  of itself  isn't morally  reprehensible. We  don't                                                                    
     think that people that act  with a particular intention                                                                    
     are just bad  people. We look to the  other elements of                                                                    
     that   crime  to   decide  whether   or  not   that  is                                                                    
     reprehensible or  not or whether that's  accountable or                                                                    
     not.                                                                                                                       
                                                                                                                                
     Under the  model penal code, which  Alaska adopted when                                                                    
     we redid our  penal code back in 1979,  it follows that                                                                    
     approach  that   the  culpability  of   someone,  their                                                                    
     accountability,  is  determined   by  their  particular                                                                    
     mental  state when  they are  committing  the crime  in                                                                    
     terms of  were they  acting intentionally or  were they                                                                    
     acting  knowing this  result could  occur or  were they                                                                    
     disregarding a  particular likelihood that  some result                                                                    
     would  occur,  even  if they  hoped  that  it  wouldn't                                                                    
     occur. And,  equating those to intentional,  knowing or                                                                    
     reckless,  we  then  provide  gradations  of  penalties                                                                    
     based   upon   that   person's   culpability,   they're                                                                    
     accountability  for   the  offense.  So   someone  that                                                                    
     intentionally wants  to make sure someone  ends up dead                                                                    
     and they  then shoot that  person, that person  is more                                                                    
     culpable,  more   accountable  for  the   conduct  than                                                                    
     someone  who is  shooting over  towards that  house and                                                                    
     knows that  someone could  get hit by  this or  I could                                                                    
     kill somebody but they aren't  really intending to kill                                                                    
     someone and  so, you know,  those are the ways  we have                                                                    
     traditionally dealt with  people's motivation, people's                                                                    
     conduct and  we haven't  brought the value  aspect into                                                                    
     it.                                                                                                                        
                                                                                                                                
     I'm just  discussing that to  bring up the idea  of how                                                                    
     our  penal code  is designed  and  when we  do look  at                                                                    
     people's  particular motivations  or things  that might                                                                    
     be  - where  we  impose our  values  then upon  issues,                                                                    
     we've  usually  done  those in  the  sentencing  aspect                                                                    
     where   we've   distinguished    between   victims   or                                                                    
     distinguished  between  certain  conduct  and  we  then                                                                    
     impose a greater punishment based upon that.                                                                               
                                                                                                                                
     For example,  if I  select a  victim because  they have                                                                    
     certain  characteristics  and  someone else  selects  a                                                                    
     victim  because they  were paid  to  hurt this  person,                                                                    
     both of  us that  were acting intentionally  in regards                                                                    
     to that victim or at  least knowingly in regards to our                                                                    
     conduct and  respect to that  victim, the crime  is the                                                                    
     same. There's  nothing to  distinguish one  victim from                                                                    
     another except  some value specific  thing that  we put                                                                    
     on.  There's  nothing  that   makes  that  victim  more                                                                    
     morally  subject  to  protection  than  another  victim                                                                    
     usually.  Now, saying  that,  we  can then  distinguish                                                                    
     down the road after we've  decided this is a particular                                                                    
     crime, that this person has  a particular mental state.                                                                    
     You  then  decide  well, if  someone  acted  with  this                                                                    
     particular motivation, for example  if there's a murder                                                                    
     for hire or  something like that, a lot  of states will                                                                    
     penalize murders for hire at  a higher level than other                                                                    
     murders.  We will  penalize  hate crimes  as  we do  in                                                                    
     Alaska law  as we  do with  our aggravating  factor for                                                                    
     felonies. We  allow for  increases in  punishment based                                                                    
     upon that.                                                                                                                 
                                                                                                                                
     That  doesn't  deal  with the  specific  issue  Senator                                                                    
     Lincoln  has in  regards  to  the misdemeanor  offenses                                                                    
     because   we  don't   have   aggravating  factors   for                                                                    
     misdemeanor offenses  and that has been  a problem with                                                                    
     the two  instances up  in Anchorage  in the  last three                                                                    
     years or four years  where the offenses were classified                                                                    
     as misdemeanors and, in some  cases, the juveniles were                                                                    
     dealt with  in the juvenile  system in a way  that most                                                                    
     folks found unacceptable.                                                                                                  
                                                                                                                                
     But there  are other  ways to deal  with that.  Some of                                                                    
     those issues involve things  like requiring, if certain                                                                    
     aggravating  factors  are  found,  you  can  require  a                                                                    
     certain  increase in  sentence.  You  can require  what                                                                    
     we've done in the  misdemeanor context - we've required                                                                    
     minimum  jail  terms.  And  also,   to  deal  with  the                                                                    
     juvenile  situation,  is  you  can  require  that  that                                                                    
     juvenile not  be dealt with  in a juvenile  system. The                                                                    
     legislature has  done that in  a number of  cases where                                                                    
     the legislature has found the  response of the juvenile                                                                    
     to different crimes as unacceptable.                                                                                       
                                                                                                                                
SENATOR FRENCH  said SB 246  has had  two hearings in  the Senate                                                               
Judiciary  Committee   and  the   police  chiefs   of  Anchorage,                                                               
Fairbanks and  Juneau are in favor  of it so it  strikes him that                                                               
the bill is ready to move on.                                                                                                   
                                                                                                                                
CHAIR SEEKINS said he has not come to the same conclusion yet.                                                                  
                                                                                                                                
SENATOR FRENCH moved SB 246 to  the next committee of referral to                                                               
allow the next  committee to deal with it. He  stated that SB 246                                                               
has  been well  presented, documented  and backed  up by  Senator                                                               
Lincoln.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS said, "I will tell  you that the motion isn't ready                                                               
but I'll let you make the  motion because I don't believe so." He                                                               
asked for a roll call vote.                                                                                                     
                                                                                                                                
SENATORS FRENCH  and ELLIS  voted in favor  of the  motion; CHAIR                                                               
SEEKINS was opposed.                                                                                                            
                                                                                                                                
CHAIR SEEKINS announced that the  motion failed and that he would                                                               
carry the  bill over  to another hearing.  He explained  that the                                                               
bill needed three votes in favor to pass out of committee.                                                                      
                                                                                                                                
SENATOR ELLIS disagreed.                                                                                                        
                                                                                                                                
CHAIR  SEEKINS  upheld  his  decision.  There  being  no  further                                                               
discussion, the meeting ended at 10:11 a.m.                                                                                     

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