Legislature(1993 - 1994)
03/19/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 137: PAROLE OF TERMINALLY ILL PRISONERS Number 315 MS. HORETSKI called members' attention to a draft committee substitute for the bill, dated March 19, 1993 (CSHB 137 (JUD)). Number 326 REPRESENTATIVE ELDON MULDER, PRIME SPONSOR of HB 137, said that the bill was an outgrowth of the Alaska Sentencing Commission's recommendations. He commented that within the criminal justice system, there was always a trade-off between protecting the community and the cost that society was willing to pay. He was of the opinion that HB 137 would diminish cost, while at the same time not pose a threat to the safety of the community. Number 346 REPRESENTATIVE MULDER said that HB 137 would give the Parole Board the ability to give special medical parole to terminally ill prisoners. He did not envision that this special medical parole would be used often, nor would it be used if a prisoner was thought to be a threat to society. He noted that the intention of the bill was to give the Parole Board some discretion. REPRESENTATIVE MULDER stated that giving a terminally ill prisoner special medical parole would result in the financial obligation of that prisoner's medical care being transferred from the Department of Corrections (DOC) to Medicaid or Medicare. He cited one prisoner who had already cost the state thousands of dollars in medical costs. He said that, in the long term, HB 137 would have an impact on HIV-positive prisoners who developed full-blown cases of AIDS later. Number 379 REPRESENTATIVE GREEN asked the sponsor at what point a prisoner would be considered to no longer be a threat to society. Number 390 REPRESENTATIVE MULDER responded that CSHB 113 (JUD) sought to more clearly and narrowly define who was a terminally ill prisoner. He commented that the Parole Board was by nature very cautious, and reluctant to issue parole. He said that the board would not issue parole to a prisoner who was deemed a threat to society. REPRESENTATIVE GREEN said that a prisoner who had cancer could still be capable of committing many crimes. Number 428 REPRESENTATIVE MULDER reiterated his belief that the Parole Board would make use of the special medical parole for terminally ill prisoners in very rare circumstances, often when a prisoner was on his or her deathbed. Number 433 REPRESENTATIVE JIM NORDLUND asked the sponsor how terminally ill prisoners were currently cared for. REPRESENTATIVE MULDER understood that the state currently bore the cost of providing medical care to terminally ill prisoners, even if that care had to be provided outside of the correctional facility. Number 447 CHAIRMAN PORTER indicated that a representative from the DOC was present. He commented that any situation that required hospitalization for a prisoner resulted in not only medical costs to the state, but also the cost of a guard to accompany that prisoner. Number 461 REPRESENTATIVE NORDLUND asked if there were ever situations in which terminally ill prisoners resided in hospitals, under guard. Number 466 DANA LATOUR, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS, cited the case of one prisoner, who had cost the state over $500,000 in medical costs over the last 18 months. That prisoner had had triple bypass surgery, she said. Number 476 RICH COLLUM, DIRECTOR OF THE PAROLE BOARD, commented that that particular prisoner was eligible for parole; however, the prisoner's attorney would not agree to apply for parole. He noted that not many people would be affected by HB 137, but that even reaching a few prisoners could save the state a great deal of money. Number 483 REPRESENTATIVE NORDLUND asked why a person could not collect Medicaid or Medicare while in prison. Number 497 JAN HANSEN, DIRECTOR, DEPARTMENT OF HEALTH AND SOCIAL SERVICES (DHSS), DIVISION OF PUBLIC ASSISTANCE (DPA), indicated her understanding that persons in correctional facilities were not eligible for Medicaid. Number 504 REPRESENTATIVE PHILLIPS asked if the federal government, through Medicaid or Medicare, would allow the state to abrogate its responsibility toward prisoners. Number 512 MS. HANSEN replied that she could only speak to the mechanism by which a person would qualify for Medicaid or Medicare. She commented that a terminally ill released prisoner could very likely meet the guidelines for aid to the disabled. Number 529 REPRESENTATIVE PHILLIPS asked about a situation in which a terminally ill prisoner, from a wealthy family, was released from prison on special medical parole. "Could that person or his or her family sue the state for not continuing to pay the cost of that person's medical care?" she asked. Number 542 MR. COLLUM replied that parole had to be accepted by a prisoner, under conditions specified, which could include that he or she take care of financial responsibilities. Number 546 REPRESENTATIVE PHILLIPS questioned whether or not a person could be paroled without his or her consent. Number 550 MR. COLLUM replied that a prisoner could not be paroled without his or her consent. Number 554 MR. COLLUM thanked Representative Mulder for being open to the suggestions of the Parole Board. He felt that CSHB 137 (JUD) was a greatly improved version of the original bill. He was still somewhat concerned about the bill's treatment of the term "terminally ill." He said that the bill now stated that the DOC would develop regulations regarding the definition of "terminally ill," and suggested that the committee give the DOC some guidelines for creating that definition. MR. COLLUM believed that HB 137 was primarily directed at HIV-positive prisoners. He said that it was known most people who tested positive for HIV eventually died of AIDS or related complications, but sometimes not for years after they were found to carry HIV. He said that the parole board would feel more comfortable with granting special medical parole if specific conditions could be attached to that parole, including cooperation with public health officials, a prohibition against selling blood, and informing sexual partners and household members of the illness. MR. COLLUM said that the Parole Board had been told by both the state's epidemiologist and the DOC's attorney that they could not treat people differently because of some medical problem. He noted that the board wanted to be able to set conditions of parole for prisoners released due to terminal illness. He commented that dealing with terminally ill prisoners was not new to the DOC or the state. He said that the governor occasionally granted a pardon to a terminally ill prisoner. Number 603 REPRESENTATIVE PHILLIPS asked how the state could sufficiently control a paroled AIDS patient, so as to guarantee that that person did not pass his or her infection on to others. Number 612 MR. COLLUM noted his similar concerns. He said that some of the definitions of "terminally ill" that he had heard related to bedridden individuals who were incapable of hurting anyone. Number 620 REPRESENTATIVE PHILLIPS stated that a person who only recently contracted AIDS was terminally ill, because he or she would not recover. Yet, she said, that person might be in the same physical condition as any healthy person. She asked Mr. Collum if he wanted the legislature to define "terminally ill." Number 627 MR. COLLUM commented that the legislature had to be comfortable with the definition of "terminally ill." He stated that there were two types of parole: mandatory and discretionary. He said that mandatory parole was granted to those prisoners who earned "good time" prior to their release. That type of parole was not consensual, he noted. He said that some of the prisoners released on mandatory parole might have AIDS, but noted that their supervising parole officers were not aware of that. He expressed a desire for the legislature to develop better supervisory conditions for paroled prisoners. Number 646 REPRESENTATIVE PHILLIPS asked Mr. Collum what the Parole Board's definition of "terminally ill" was. Number 650 MR. COLLUM replied that the Parole Board currently experienced no situations in which they applied a definition of "terminally ill." He had spoken with the DOC's doctor, who stated that three doctors would be involved in any decision about whether or not a prisoner was terminally ill. Beyond that, he said that it was not clear to him what the definition of "terminally ill" would be. He had heard people say that the definition referred to a person who was bedridden to the point that doctors felt he or she was unable to commit another crime. Number 660 REPRESENTATIVE GREEN called Mr. Collum's attention to page 5, line 13 of CSHB 137 (JUD), subsection (17), in which a condition of special medical parole could be that a released prisoner refrain from participating in an activity that may endanger the public. He asked if the Parole Board could use that provision to require that a released prisoner not engage in activities that could result in transmission of the AIDS virus. He further asked if that provision would relieve the legislature's anxiety about the Parole Board granting special medical parole to a person infected with the AIDS virus. Number 696 MR. COLLUM commented that criteria now used by the Parole Board in granting discretionary parole, and that same criteria which was contained in HB 137, included that a prisoner would not pose a threat to the public if she or he were placed on parole. He noted that Representative Green was not referring to criteria used for granting parole, but rather conditions for supervision once a prisoner had been released on parole. Number 705 REPRESENTATIVE GREEN asked Mr. Collum if, as a condition of release on parole, an AIDS patient would have to be bedridden, in order to not be considered a threat to the public. Number 711 MR. COLLUM was of the opinion that the condition set out in subsection (17) would have nothing to do with a determination about the definition of "terminal illness." He called Representative Green's attention to page 5, lines 22-24, which contained a definition of "special medical parole." He noted that definition appeared to be the only definition of who would be eligible for that particular type of parole. Number 722 REPRESENTATIVE GREEN commented that the definition of "special medical parole" did not guarantee society that a person suffering from AIDS, who was released on special medical parole, would not be out infecting innocent members of the public. Number 732 MR. COLLUM replied that the wording in proposed AS 33.16.085 could be strengthened to say that a prisoner could not pose a threat of harm to the public. Number 738 REPRESENTATIVE GREEN was concerned that the bill as currently drafted was placing too much trust in the parolee. MR. COLLUM mentioned that prisoners who had been released on mandatory parole could have their parole revoked if they violated the conditions of their parole. Number 754 REPRESENTATIVE JEANNETTE JAMES commented that AIDS patients were already being released on mandatory parole. She noted that the state currently had no control over those parolees, in terms of whether or not they infected others. She was of the opinion that the state might be liable if it prematurely released an AIDS-infected prisoner on parole. REPRESENTATIVE JAMES stated that in addition to the financial aspects, there were other advantages to paroling terminally ill prisoners, including allowing a dying person to spend time with his or her family. She believed that putting the cut-off point for releasing a prisoner on special medical parole at the point at which they became bedridden would probably not result in a large cost-savings for the state. Number 782 MR. COLLUM mentioned the Neokok decision from a number of years back, in which the DOC had paid an out-of-court settlement of approximately $6 million because of its failure to warn the community about a parolee who was dangerous. He said that the Parole Board wanted to be able to treat people released on special medical parole as criminals, rather than as regular members of the community. Number 795 REPRESENTATIVE PHILLIPS liked the idea of special medical parole for terminally ill prisoners, and supported HB 137. However, she said that the committee should amend the bill so as to better define "terminally ill." Number 800 REPRESENTATIVE JAMES commented that HB 137 gave the Parole Board the discretion to determine whether or not releasing a terminally ill prisoner was in the state's best interest. She said that it would be difficult for the legislature to define "terminally ill" in such a way that it would cover situations which the legislature wanted to include, and not cover situations which the legislature did not want to include. Number 805 MR. COLLUM was completely comfortable with the current Parole Board making determinations of that nature. However, he said that he might not be so comfortable with future members of the Parole Board. TAPE 93-37, SIDE B Number 000 MS. HORETSKI discussed changes incorporated into CSHB 137 (JUD), dated March 19, 1993. The first change, she said, appeared on page 2, line 25. New language had been added to allow the DOC's Commissioner to apply for parole on a prisoner's behalf. She said that this was an attempt to solve the problem of a prisoner who might not want to be paroled, preferring instead to have the state pay his or her medical costs. MS. HORETSKI stated that from page 2, line 26, through page 4, line 6, was all new language. She noted that the rest of CSHB 137 (JUD) was the same as the original bill. She mentioned that there already existed in statute standards for releasing prisoners on discretionary parole. With one exception, she noted, those standards were placed in the section on special medical parole. The first standard, regarding terminal illness, however, was not from the other list of standards, she said. MS. HORETSKI noted that one existing standard for release on discretionary parole was dropped. That standard said that a prisoner's rehabilitation and reintegration into society would be furthered by release on parole. She said that the committee could add a requirement that the parolee have some degree of incapacitation to this set of standards. However, she commented that it might be difficult to predict all of the situations in which the bill might apply. She noted that CSHB 137 (JUD) was considerably more restrictive than the original bill. MS. HORETSKI called members' attention to a provision on page 3, line 5, which specifically allowed the Parole Board to rescind or revise an individual's parole. That, she said, could occur if an individual was not abiding by the conditions of his or her parole. She stated that CSHB 137 (JUD) included a provision allowing victims to be notified and to comment when an offender was being considered for release on special medical parole. She said that this language had been lifted from existing provisions of the Alaska Statutes. Number 158 REPRESENTATIVE GREEN commented that the provision on page 3, line 1 of CSHB 137 (JUD) adequately addressed the concerns he expressed earlier. Number 176 CHAIRMAN PORTER said that if the committee were to write a definition of "terminally ill" that covered worst-case scenarios, they would likely negate the intent of the bill. He felt comfortable with the current construction of HB 137. He noted that currently, when mandatory parole was granted, the problem of what would keep a criminal from committing more crimes existed in every case. He recognized the potential for someone with HIV to infect another individual. However, in reality, he said that many prisoners who carried HIV were released simply because their sentences had ended. Number 195 CHAIRMAN PORTER noted that any responsibility that the state had regarding HIV-positive prisoners released on parole already existed. He was comfortable with giving the Parole Board the authority to examine each case on an individual basis. Number 209 REPRESENTATIVE GREEN commented that there was a distinct difference between releasing HIV-positive prisoners at the end of their sentences and releasing prisoners because they had AIDS. Number 218 REPRESENTATIVE PHILLIPS was still uncomfortable with the lack of a definition of "terminally ill" in the bill. She thought that she had heard Mr. Collum state that the legislature should include a definition of "terminally ill" in HB 137. Number 231 MS. LATOUR said that the DOC had considered suggesting that its Medical Advisory Board review and prepare a report to the Parole Board that would determine whether or not a candidate for special medical parole was terminally ill. She said that when the DOC first began working on HB 137, there had been talk about defining a terminally ill person as someone who was likely to live one year or less. She said that later, discussion expanded to include people who might live longer than one year, but who would require ongoing, expensive medical care. MS. LATOUR stated that the Medical Advisory Board currently sometimes prepared reports on prisoners being considered for discretionary parole. Number 264 REPRESENTATIVE MULDER commented that the Alaska Parole Board was very proud of its record of exercising caution when granting prisoners parole. He said that the board needed to be granted a certain amount of flexibility, because it would be difficult for the legislature to envision the scope of all situations to which special medical parole could be applied. He felt very comfortable giving the Parole Board flexibility. Number 301 CHAIRMAN PORTER believed that it would be difficult to adequately define "terminally ill" in HB 137. REPRESENTATIVE PHILLIPS asked Mr. Collum to contact the legislature in the future, if he wished for there to be a statutory definition of "terminally ill." Number 331 REPRESENTATIVE CLIFF DAVIDSON, speaking via teleconference from Kodiak, asked if the legislature was doing itself a disservice by not including strict guidelines in HB 137. He noted that although Representative Mulder might feel comfortable with the current Parole Board, he might feel differently in the future, when the members of the Parole Board changed. Number 357 REPRESENTATIVE MULDER commented that parole was based on an educated guess, and said that there were no guarantees. He applauded the work of the present Parole Board, and expressed his belief that future Parole Boards would have the same judicious nature. REPRESENTATIVE DAVIDSON cited the vengeance factor of some prisoners. He noted that his comfort level was not as high as that of Representative Mulder. Number 393 REPRESENTATIVE JAMES asked if the committee needed to add language to HB 137 regarding the DOC's Medical Advisory Board. Number 399 MR. COLLUM did not know whether or not inclusion of that language was appropriate. Number 410 CHAIRMAN PORTER asked if that could be accomplished through the regulatory process. Number 412 MS. LATOUR replied that HB 137 did not provide the opportunity for the DOC to write regulations. Number 413 MS. HORETSKI expressed her opinion that HB 137 provided the opportunity for the DOC to adopt regulations, through the amendment of an existing statute, located on page 2, line 14 of CSHB 137 (JUD). MS. LATOUR reviewed the language and agreed that the DOC would have the authority to adopt regulations in this area. Number 432 REPRESENTATIVE JAMES made a MOTION to ADOPT CSHB 137 (JUD) dated March 19, 1993. There being no objection, IT WAS SO ORDERED. REPRESENTATIVE JAMES then made a MOTION to MOVE CSHB 137 (JUD) out of committee with individual recommendations and a zero fiscal note. There being no objection, IT WAS SO ORDERED. Number 447 CHAIRMAN PORTER announced that HB 67 was the next item of business before the committee. He mentioned that Representative Nordlund had amendments to offer.
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