Legislature(1995 - 1996)
03/27/1996 01:20 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 232 - PFD NOTICES AND ELIGIBILITY Number 160 TOM WILLIAMS, Staff to Senator Frank came before the committee to present information on SB 232. Senator Frank is the prime sponsor to this legislation. He noted that this legislation has been proposed three times. Two years ago it was introduced and passed the senate, but it did not move through the house. Last year, in a slightly different form as SB 135, this legislation passed both bodies, but was vetoed by the governor. SB 135 had a provision which made some timing changes in regards to when an individual would be denied a PFD and then when the money denied could be reappropriated. These were the sections which the governor objected to in his veto message, so they were deleted from this bill, SB 232. MR. WILLIAMS went on to note that SB 232 expands the pool of criminals who will become ineligible for dividends. It expands the agencies for which these denied dividends can be used. It defines clearly the purposes for which those dividends can be used. It also requires some increased notice of the fact that the state is denying criminal's dividends and using these monies to fund the criminal justice system, it would help to defray costs. SB 232 passed the senate with a vote of 18 to zero. They have addressed several concerns which the administration raised. "One concern that we have not addressed is, there has been some concern that by denying dividends to an expanded pool that, that somehow the attachment, the pool of dividends to be attached by various agencies, especially CSED, declines. While that is true the effect is rather negligible and in addition the debt does not go away, it simply, (indisc. - paper shuffling) debt against the individual who's no longer eligible for a dividend doesn't go away it just delays when they can collect their debt." MR. WILLIAMS estimated that there will be approximately 2,000 additional individuals who would be denied a dividend ultimately. This was a Department of Law estimate. Effectively, they avoid any ex post facto problems by only considering convictions related to misdemeanors and felonies which occur after January 1, 1997. This denies individuals based on prospective actions, rather than retroactively. Additional funds would not be available until the year 2000. Number 425 REPRESENTATIVE CON BUNDE asked that under the misdemeanors convictions which occur after January 1, 1997, would a third misdemeanor have to occur then or would all three have to occur after this time. MR. WILLIAMS stated that all three would have to occur after January 1, 1996. REPRESENTATIVE BUNDE asked about the dividends which are held and then disbursed to the various agencies listed, are there any concerns about dedicated funds in this application. MR. WILLIAMS noted that as a practical matter the individual is denied a dividend and the subsequent year the monies are appropriated from the available dividend fund, so there is no one to one linkage in regards to a dedication. It just says what can be appropriated out of the dividend fund, plus in the Anthony v. State decision which challenged the whole felony issue whether or not there could be a denial, the court relied on the fact that there was a good use of the money for finding it was constitutional to deny felons in the first place. This nexus has been addressed. Number 529 REPRESENTATIVE BUNDE asked in the broadest terms that this is spending the earnings of the permanent fund. MR. WILLIAMS offered that he would not say that, he would say that what it is doing is spending the money which would have otherwise been paid to criminals had they had this provision available. Number 566 REPRESENTATIVE AL VEZEY stated that he looked upon this legislation as a form of garnishment. MR. WILLIAMS stated that this was a reasonable analogy. This was the means set up to take these dividends. Number 580 REPRESENTATIVE GREEN asked what would happen to incarcerates who are sent out of state and because of this they don't qualify. MR. WILLIAMS stated that an individual would have had otherwise been eligible for their dividend to be available for reappropriation to the criminal justice system. If an individual goes out of state and they would have been eligible under the custody of the state, this is an allowable absence. If someone is in the custody of the state they would be eligible. Number 638 REPRESENTATIVE VEZEY noted that he didn't think this bill addressed felons and Alaska only sends felons out of state, correct. MR. WILLIAMS said that this legislation did address felons and misdemeanants. Current law (and in the packet there is a side-by- side comparison of the individuals ineligible) says that if someone is incarcerated for a felony conviction during any part of the qualifying year, the person is ineligible. This is what current law does and this would relate to this (indisc. - paper shuffling) sent out of state. SB 232 retains this provision and adds to it if someone is simply convicted of a felony in the year they were convicted, this makes someone ineligible. If someone was incarcerated for a third misdemeanor, this would also make someone ineligible. In regards to sending someone out of the state, the additional pool doesn't relate to this situation, but it relates to what they are attempting to do right now. Number 712 CHAIRMAN PORTER asked if Mr. Williams could outline what the law would be with this bill and what is now in relation to felons. MR. WILLIAMS stated that in regards to felons under current law the person must have been incarcerated for a felony conviction to be ineligible. Under SB 232 the person must have been incarcerated for a felony conviction or convicted. The person would be ineligible in the year they are convicted. In other words, if the person is convicted of a felony, it doesn't mean they're forever ineligible. Number 768 CHAIRMAN PORTER asked about prospective misdemeanor convictions as provided for being unconstitutional. MR. WILLIAMS noted that in regards to ex post facto issues, the safest approach was to simply count things which happen prospectively as opposed to running a legal challenge. CHAIRMAN PORTER responded that they had just had this discussion at length regarding a bill passed last year on a third time Driving While Intoxicated (DWI) charge. They were convinced in relation to this legislation that prior convictions were eligible for consideration. MR. WILLIAMS deferred to Tam Cook regarding this issue. Number 820 REPRESENTATIVE BUNDE asked Mr. Williams to walk them through the fiscal notes and asked him what the net gain would be. MR. WILLIAMS stated that the Department of Corrections reflects the largest fiscal note with a total of $68,000. This fiscal note pertains to improving their ability to identify individuals who meet the criteria. The way this works now under current law, since only incarcerated felons are recognized, they submit these names to the Permanent Fund Dividend (PFD) Division. If a name of an individual sent to this division is incorrect and the individual is denied a dividend and challenges this denial then the PFD Division and the Department of Corrections try to work this out. The Department of Corrections has advised them that they need to update their computer systems to enhance coordination with the Department of Public Safety and with the Department of Law, as well as, and the courts to improve the reliability of their lists provided. MR. WILLIAMS noted that in regards to timing, no additional monies will be available for appropriation until the fiscal year 2000, simply because of various (indisc.) He referenced a brief schedule which highlights this in the committee member's packets. In regards to a number of 2000 people being ineligible as noted, ultimately at a $1000 a dividend this translates to $2 million starting in fiscal year 2000. He mentioned in current law $2.4 million which is presently available. Number 1005 CHAIRMAN PORTER asked about picking up a new category of felons which were convicted, but not sentenced, why would they not be picking up money next year if this law went into effect. MR. WILLIAMS stated that this was due to a delay from when an individual is denied to when the money can be appropriated. They attempted to move up this lag in last year's legislation and it was dubbed as a "double dip." The governor objected to this. Again, he referenced a document in the packets which outlines this lag period concept. The qualifying year for people who would be ineligible would start in 1997. This means these individuals would be denied their dividends in 1998. This 1998 dividend is paid in fiscal year 1999. The next appropriation cycle for this money is then fiscal year 2000. Number 1075 REPRESENTATIVE VEZEY asked if it was highly unlikely that someone would accumulate three misdemeanant convictions in 1997, hence for these individuals the permanent fund money would be available more likely starting in 2001. MR. WILLIAMS said that this was correct. He also noted that currently the incarcerated felon's dividends are being taken. This new legislation allows for taking dividends from individuals who are convicted, but not incarcerated. Number 1132 REPRESENTATIVE TOOHEY noted that until this money is collected in the year 2000, the state will have spent $320,000 to get the program up and running. She stated that this was a lot of money and she also pointed out that this was just one of the fiscal notes affecting this legislation. Number 1160 TAMARA COOK, Director, Legislative Legal and Research Services, responded to the question posed about a legal prohibition against considering the past convictions of an individual rather than future convictions for a three time misdemeanant. She stated that she was not an expert on criminal law, but it was her opinion that this bill was taking the most conservative approach on this issue. She thought that there would probably be a problem if the third misdemeanor was not committed after the effective date. As far as considering prior convictions, she thought that it was very likely that this would be upheld if this approach is taken. Number 1241 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law stated that Ms. Cook's statement was correct, that retroactively this can be done and this was what they did in the past with the felony DWI legislation which Chairman Porter had referenced. She stated that she'd like to reread this legislation to make sure, but that was her recollection. Quite a few cases have been brought under this felony DWI law and there have not been any problems related to it's retroactivity nature. Number 1300 NANCI JONES, Director, Permanent Fund Dividend Division, Department of Revenue stated that the governor's office does not have any opposition to this bill. There were some concerns which they've worked out with Senator Frank's office, but there remains some concerns about the overall expansion of the pool of the class of ineligibles. The expansion of the recipients to receive these monies and people within specific departments who have been currently funded from this pool have become nervous and anxious thinking that their funds will be reduced, since this legislation would add more people in the pool to receive these funds. A certain amount of this money is already collected for the Department of Law to pay for criminal fines and such. As this pool expands there will be less dividends available to garnish. Since the estimation of individuals that this legislation will affect by the year 2000, she stated that it's hard to put a finger on how much money will be lost. Overall, the governor's office is not opposed to this bill. Number 1387 REPRESENTATIVE BUNDE clarified that this legislation will bring in more money into the pool, but Ms. Jones was saying that money will be lost because it will be disbursed into more pockets. MS. JONES said yes, exactly. Number 1397 REPRESENTATIVE GREEN stated that currently if a felon gives up their right to their PFD once they're incarcerated, he asked what would happen with a felon next year or when this legislation becomes effective, but they are not incarcerated and the PFD is taken through this bill, and then because of other circumstances they do become incarcerated for the next year, does this person stay with this funding under SB 232 or do they switch over to the group as established prior to this legislation. MS. JONES answered that the way this system currently works if someone is incarcerated as a result of a felony conviction within the qualifying year, then this person is not eligible to receive a dividend. This same program would be expanded to persons who are incarcerated, as well as persons who are convicted of a felony within this qualifying year or who commit a third misdemeanor within the qualifying year. This would all come under the same pot. In the next year, if this person was release from jail, they are no longer in this group. REPRESENTATIVE GREEN asked if someone is incarcerated in this next year would they fall under "the felon without this bill right now" or would they follow what this legislation requires. MS. JONES answered that this person would fall under the current program if they are incarcerated. If they were released and they go back to jail they would go back to the same program again, they would be in the same pool. Number 1479 CHAIRMAN PORTER stated that if an individual is convicted this next year and they are given probation, next year they would fall under the new provision. The following year, this same person violates probation and is thrown in jail they would lose their PFD also. MS. JONES said that this was correct. She noted that if this bill passes it changes the playing field. There would only be one avenue for disbursements. This legislation would override the present system. Number 1575 MS. CARPENETI stated that she echoed all of Ms. Jones' comments. The criminal division is concerned about the situation which Mr. Williams mentioned which dealt with people who are victims of crime and wouldn't otherwise be eligible under violent crimes compensation and would lose this source of money to garnish for restitution. This is a concern to them and they've been unable to come up with a solution to this problem that would pass constitutional muster. REPRESENTATIVE BUNDE asked if the convicted misdemeanant doesn't apply for their PFD, the victim wouldn't have an opportunity for compensation anyway. Under this program these individuals would not have to apply. The state will still take the money. MS. CARPENETI said that this was correct. Number 1638 CHAIRMAN PORTER noted that victims are potential taxpayers like anyone and the state is putting money in the general fund. This would offset costs they might have down the road. MS. CARPENETI mentioned a minor point on page 2, line 20 which she brought up out of total excess of caution. She stated that she would remove paragraph 1 after subsection (d), so that when the legislation speaks to the date of conviction, this date would be for AS 43.23.005 (d) (1) and (2). She knew that paragraph 1 applies to people convicted of felonies, but she didn't think it hurt anything to make this apply to all of (d), because under paragraph (2) they were talking about people incarcerated after being convicted. She said that this might be an excess of caution, but she suggested that it might avoid any possible problems resulting from terms used in the bill. MS. CARPENETI noted that this section dealt with the date of conviction as to the time of sentencing and this makes it clear what date would be considered when applying this law for people convicted of a felony. She suggested that they make this apply to both paragraph (1) and (2), although the term conviction isn't used for people incarcerated of a felony or a third misdemeanor. She stated that it wouldn't hurt to have this definition apply to both (d) (1) and (2). MS. CARPENETI responded to Representative Toohey's concern about the victims of violent crime compensation issue discussed previously. She noted that money from these people who are denied a PFD does goes to violent crimes compensation, but this only covers certain offenses under certain circumstances. She added that there doesn't seem to be any solution which would speak to this problem. Number 1845 CHAIRMAN PORTER asked Mr. Williams if they would be adverse to changing the bill to allow for prior misdemeanors to be considered within the three misdemeanor rule allowed in this legislation. MR. WILLIAMS answered that he didn't think Senator Frank would be adverse to this at all. He felt as though the biggest concern was that they wanted to minimize the chance of a legal challenge with this sort of legislation. CHAIRMAN PORTER again added that this was the way in which the felony DWI bill was drafted, that the conviction for which "in this case this bill begins to be a consideration of a felony becomes a consideration of the other one has to be after the fact of the passage of the bill," but if the consideration of previous convictions that are supplemental, these can be before. MR. WILLIAMS acknowledged that this would increase the pool faster and as long as there are no constitutional problems with it he felt as though the senator would not object. Number 1906 REPRESENTATIVE BUNDE made a motion to pass a conceptual amendment to address this issue, to allow in the area of the three misdemeanor convictions two of three to be prior to the passage of the bill, but leaving in place the requirement that the third or subsequent to be after the effective date of the bill. This would amend Section 6 on page 5, beginning with line 15 which currently says, "convictions for offenses committed before January 1, may not be considered in determining a number of prior convictions for the purposes of applying this..." Number 1970 REPRESENTATIVE GREEN asked if this implied that the prior convictions could be convictions from outside the state of Alaska or inside. MR. WILLIAMS said that the bill did not address whether these convictions would be inside or outside of the state. It is silent as to this, but the presumption would be that this legislation would apply to any misdemeanor conviction. CHAIRMAN PORTER stated that he would not be opposed as a friendly amendment to the conceptual amendment as stated, to incorporate language which would make this clear. He noted that this clause shouldn't cause any great burden. Number 2006 CHAIRMAN PORTER again outlined this conceptual amendment to include the precept to allow consideration of out of state convictions for prior convictions and two, to allow prior convictions prior to the effective date for the first two convictions, and that the third or subsequent conviction be after the effective date in the area of misdemeanors as it relates to Section 6. There being no objection to this conceptual amendment, it was so moved. Number 2036 MS. COOK asked for clarification as to the out of state offenses that occur which are to be included in this contraction now, were they talking about offenses that if they were to take place in Alaska the elements of which would constitute a misdemeanor in Alaska. CHAIRMAN PORTER said that yes, exactly, and instructed Ms. Cook to reference the DWI law which he had already mentioned. Number 2066 REPRESENTATIVE GREEN made a motion to move CSSB 232 (JUD) as amended with individual recommendations and attached fiscal notes. There being no objection, it was so moved.
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