Legislature(2001 - 2002)
02/14/2001 01:13 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 52 - COMPACT FOR ADULT OFFENDER SUPERVISION Number 1291 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 52, "An Act relating to the Interstate Compact for Adult Offender Supervision and the State Council for Interstate Adult Offender Supervision; amending Rules 4 and 24, Alaska Rules of Civil Procedure; and providing for an effective date." Number 1312 CANDACE BROWER, Program Coordinator, Office of the Commissioner - Juneau, Department of Corrections, presented HB 52. She explained that HB 52 was an effort to repeal the current interstate compact [Interstate Compact for the Supervision of Parolees and Probationers (ICSPP)] that was enacted in 1937 and replace it with the new Interstate Compact for Adult Offender Supervision (ICAOS). The ICSPP governed the state-to-state transfer and supervision of parolees and probationers. It was a reciprocal agreement between states to exchange parolees and probationers, and to continue their needed supervision. The current compact is outdated. In addition, nationally, there were now approximately 250,000 probationers and parolees crossing state borders. Thus, this outdated system had become overwhelmed. MS. BROWER informed the committee that the Council of State Governments (CSG) and the National Institute of Corrections (NIC) had made an effort to update the current ICSPP; however, they determined that was not feasible because it was just too far out of date. Instead, the new ICAOS was created, and to date, nine states had enacted legislation to adopt it. In order for the ICAOS to take effect, it would have to be adopted by 35 states. She noted that an advantage to being amongst the first states to adopt the ICAOS would be the opportunity to help set the national regulations regarding how the ICAOS operated. Number 1406 MS. BROWER expressed concern that there should be enforceable regulations regarding the transfer and supervision of parolees and probationers, but the current ICSPP was basically a gentlemen's agreement that allowed offenders to fall between the cracks. The adoption of the new ICAOS would establish a mechanism for all states, and offenders, to be held accountable through monitoring, data tracking systems, and increased required victim notification. Under the current ICSPP, there were times when states didn't come to an agreement on supervision of a released offender, yet the offender was released and sent to the other state anyway, without any accountability. The adoption of the new ICAOS would ensure that the sending state and the receiving state came to an agreement before the offender was released. In addition, the new ICAOS provided for the formation of an Interstate Commission (IC) that would resolve disputes between states. MS. BROWER mentioned that because Alaska exported more offenders than it imported, it would benefit a great deal from the adoption of the new ICAOS. She gave an example of someone who had served his or her sentence after committing a crime in Alaska, and was eligible for supervised release. If that person felt his or her chances and opportunity of success were greater in another state because family and friends resided there, that person could apply to be supervised by officials in another state. In order to do that, that person would first apply to Alaska's interstate compact office. The application would then be reviewed by the receiving state and sent to the area where the offender planned to go. That area's supervising office would investigate the application and ensure that the offender had a job and family or suitable placement. If approved, the offender would also be responsible for abiding by conditions set by both the sending state and receiving state. Number 1600 MS. BROWER, in response to questions by Representative Berkowitz, estimated that Alaska had sent approximately 400 probationers out of state. She did not anticipate the number going up under the new ICAOS, but she believed it would provide for better supervision and enforcement of Alaska's offenders in other states. And under the new ICAOS, extradition would become easier. Number 1653 MICHAEL J. STARK, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, added that there might be a receiving state that unreasonably denied a request to transfer interstate supervision. The new ICAOS would be enacting rules that would allow the sending state to enforce the compact and require the receiving state to take the person if he or she met the criteria. The new ICAOS would also prevent one state from "dumping" an offender in another state when there was a legitimate reason to refuse the request to transfer interstate supervision. In instances where an offender was transferred without permission from the receiving state, which has happened under the current ICSPP, that person did not receive supervision from either the sending or receiving state. The new ICAOS would provide for revenues to deal with enforcing supervision and, where needed, to enforce the sending state to take the offender back and continue supervision. The new ICAOS provided for accountability of all people that moved between states, which did not adequately exist under the current ICSPP. REPRESENTATIVE COGHILL asked if the state would have a part in the IC, or would the state establish a member body in Alaska that would interact with the IC. MR. STARK clarified that the ICAOS would be adopted as is. The ICAOS could not be modified because it was a contract with other states. What the ICAOS provided for was an IC, and all compacting states would have a voting member in the IC. That voting member would become the compact administrator for the state. Most states have independent county probation departments, so those states would have a number of compact administrators and must select one of them to represent their state on the IC. In Alaska, which had only one Department of Corrections, there would be only one compact administrator. That person would sit on Alaska's state council and would also represent Alaska on the IC. The state council would be a body of seven persons with five voting members, one nonvoting member from the legislature, and one nonvoting member from the judiciary; the compact requires that all three branches of government be represented on the state council. The state council would advise the legislature, make recommendations, and implement the provisions of the compact in so far as ensuring compliance with rules the IC adopted. Number 1839 MS. BROWER verified for Representative Coghill that the fiscal note reflected travel costs for members of the state council, as well as for the person who would represent Alaska in the IC. MR. STARK clarified for Representative Coghill that language in Article III of the ICAOS created the IC and spoke about the state council, and that language regarding the powers and duties of the IC was found in Article IV. He explained that the state council was created outside of the ICAOS, through Section 3 of HB 52, which set out the membership and responsibilities of the state council. REPRESENTATIVE BERKOWITZ asked, with regard to the nonvoting member from the judiciary on the state council, if [the language] had been vetted through the defense bar. Number 1990 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference. He answered Representative Berkowitz's questions by saying that [the Public Defender Agency] had not asked to be on a council like this because of potential conflict of interest, for example, if the council made regulations that denied somebody the chance to go out of state, and [the Public Defender Agency] was representing that person. He said, however, that [the Public Defender Agency] hoped to have input if they had particular concerns. Number 2058 MR. STARK, in response to Representative Rokeberg, said that though the ICAOS required all three branches of government to be involved in the state council, Section 3 of HB 52 was drafted to ensure separation of powers; thus the members from the legislature and judiciary were nonvoting members. He emphasized that all branches of government needed to stay involved because of the pervasive problems associated with having so many offenders crossing state lines. He said concerns about such things as Megan's Law and sex offender registration were taking [the country] in the direction of national data systems that would keep track of offenders wherever they were. He added that the ICAOS required that the IC file an annual report that would keep all the state legislatures and governors apprised of the business of the ICAOS. He did not anticipate adversarial issues arising in the state council. REPRESENTATIVE ROKEBERG asked Ms. Brower to provide a short narrative analysis of what the existing circumstances were, and what the new ICAOS would do for the state. The analysis should show why the State of Alaska should enter into a compact with other states. He also asked what is done now in terms of interstate intercourse with other jurisdictions, and how the state currently speaks to those jurisdictions. MS. BROWER answered that currently there was an interstate office that had a compact administrator who processed all applications. MR. STARK clarified that the position of compact administrator already existed; HB 52 would simply repeal the existing ICSPP and replace it with the new ICAOS. Number 2186 REPRESENTATIVE KOOKESH commented that he saw they had two choices: to join the new ICAOS or stay with the old 1937 ICSPP. He said he felt that if every other state adopted the new ICAOS and Alaska maintained the old ICSPP, then Alaska would look pretty ridiculous. He also said that they must recognize that [Alaska] had to join modern society, and they should just go forward with [the adoption of the ICAOS]. Number 2225 MR. STARK explained for Representative Ogan that the ICAOS was drafted so that 35 states must enact the ICAOS before it becomes effective. He supposed it was a somewhat arbitrary number - it was simply the number chosen by the body that drafted the ICAOS. He said that currently there are 9 or 10 states that have enacted the ICAOS, and many other states have similar legislation before them. He confirmed that it is federal authority that allows for the compact, as well as for states to enter into interstate compacts. REPRESENTATIVE BERKOWITZ pointed out that the ICAOS was an agreement between the states, not an agreement mandated by the federal government and then imposed on the states. Also, this is considered normal commerce between states. CHAIR ROKEBERG added that the action of a compact is provided for in the United States Constitution. REPRESENTATIVE OGAN voiced concern over language he felt gave the ICAOS the ability to pass laws that the state must abide by. REPRESENTATIVE BERKOWITZ noted that the ICAOS had the force of law only because it was essentially a contract that the state entered into. Number 2384 MR. STARK added that also, should the legislature adopt the ICAOS, it would become part of state statute, and thereby require Alaska to follow any rules adopted by the IC. He pointed out that this was one of the enforcement mechanisms that dealt with states when they did not follow the rules. The IC could go into court and get a court order that forces a state to abide by the rules the IC set. He pointed out that the language regarding the binding effects of the ICAOS is found on page 19, Article XIII. He added that the ICAOS did provide for states to ask for legal interpretations from the IC. In an effort to allay Representative Ogan's concerns, Mr. Stark referred to language on page 20 that allowed a state to disregard any provision of the ICAOS, should it exceed that state's constitutional limits. Further, should the state find it untenable to abide by a rule adopted by the IC, the state could simply withdraw from the ICAOS. REPRESENTATIVE OGAN wanted clarification that under the ICAOS, the legislature would delegate its legislative power to an interstate compact that had the ability to [make rules that] had the force of law in Alaska. Number 2450 MR. STARK countered that the legislature would only delegate rule-making authority to the IC. The IC would then adopt rules through the federal Administrative Procedure Act, which included public notice and an opportunity for public input. In addition, Alaska would have a member on the IC while it adopted rules. REPRESENTATIVE BERKOWITZ suggested that this was akin to, but not just like, executive branch regulation authority. CHAIR ROKEBERG added that the ability of the various states to enter into compacts, and to create rules between them, was what in large part kept the federal government out of the issue. TAPE 01-18, SIDE B Number 2510 MR. STARK noted that the ICAOS would not have any federal government representation on it. REPRESENTATIVE MEYER asked what would happen if the minimum of 35 states enacting the ICAOS was not reached. MR. STARK reiterated that the ICAOS would not take effect unless a minimum of 35 states ratified it. He directed attention to page 22, Section 9, which had the language pertaining to the effective date. If this minimum was never reached, or until it was reached, the existing ICSPP would still be in effect. However, he fully expected all the states to adopt the ICAOS at some point. As Ms. Brower noted before, Mr. Stark felt it was very important to be amongst the first of the 35 states because, after the first 12 months of reaching the minimum number of states, the initial rules of the IC would be adopted. His concern was that with Alaska being a small rural state, some of the more populous states might adopt rules that would adversely impact Alaska. He wanted to ensure that Alaska would have input as the IC was adopting the initial rules. He also clarified for Representative Meyer that the costs outlined in the fiscal note might be lessened after the first year if the IC adopted a rule permitting participation of members via teleconference. Number 2427 MS. BROWER commented that the fiscal note also reflected a fee, based on offender population, that the ICAOS assessed member states. She did not anticipate any further costs. MR. STARK outlined some of the criteria used in the formulation of the fee, and noted that Alaska was in a group of states that were being assessed the lowest amount. He also emphasized that ICAOS only applied to persons under supervision for criminal convictions, not civil convictions. In response to questions by Representative Coghill, Mr. Stark said that under the existing ICSPP, there was already an organization of compact administrators that met annually and, because they felt they lacked enforcement mechanisms, were the driving force behind the creation of the new ICAOS. He also noted that many of the rules under the current ICSPP would be readopted under the new ICAOS, and that the primary changes would be with the enforcement provisions of those rules. He did anticipate increased accountability and tracking. On the point of being amongst the first 35 states, he expressed a concern that Alaska needed to initially address a provision that would allow states that don't have their own misdemeanant supervision to refrain from supervising another state's transferred misdemeanants. For example, under the new ICAOS, Alaska would be forced to supervise transferred misdemeanants if the sending state normally supervises them, even though Alaska doesn't supervise its own misdemeanants under formal probation. Number 2163 MR. STARK expanded on transfer procedures by saying that currently the sending state sets its own probation conditions for its offender, who then comes to our state to be supervised. The receiving state can also impose additional conditions, which must be reasonable, and the offender must comply with both sets of conditions. He clarified that in cases of conflict, the compact administrators resolve the differences. In any case, the offender and both states are notified of all conditions that the offender must comply with. REPRESENTATIVE ROKEBERG directed attention to page 5, lines 20- 23. He felt that the language in the ICAOS regarding the appointment of the compact administrator was ambiguous. Number 2042 MR. STARK explained that that language was meant to give states the option of appointing the compact administrator through either the state council or the governor in consultation with the legislature and the judiciary. He referred to page 20, line 9, which contained language specific to Alaska, whereby the governor in consultation with the legislature and the judiciary shall make the appointment. He noted this was not a confirmation process; instead, the governor would notify the legislature and the judiciary of his choice and solicit comments before finalizing the appointment. He clarified that the compact administrator was not in a political position; that person simply enforced interstate supervision rather than made policy. MR. STARK defined for Representative Coghill the court rule language located on page 22. He said it meant that if there was any litigation anywhere in the country in which the powers and responsibilities of the IC were raised, the IC had the right to be served with process and be part of that lawsuit. Number 1930 MR. McCUNE added that [the Public Defender Agency] saw HB 52 as an improvement over the present situation. He believed that the National Institute of Corrections in Washington, D.C., had done a lot of research and work on this issue. [The Public Defender Agency] supported HB 52. Number 1752 CHAIR ROKEBERG advised members that the committee would hold HB 52 over and take it up again as soon as possible. He noted that Representative Ogan wished to further investigate the constitutional issues of HB 52. [HB 52 was held over.]
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