Legislature(2003 - 2004)
01/30/2004 01:10 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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HB 357 - RESTITUTION Number 1847 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 357, "An Act relating to restitution; and providing for an effective date." House Bill 357 has four prime sponsors: Representatives Stoltze, Dahlstrom, Samuels, and McGuire. [Before the committee was the proposed committee substitute (CS) for HB 357, Version 23-LS1384\D, Luckhaupt, 1/20/04, which was adopted as a work draft on 1/26/04.] Number 1853 REPRESENTATIVE SAMUELS moved adopt the proposed CS for HB 357, labeled 23-LS1384\H, Luckhaupt, 1/29/04 as the work draft. There being no objection Version H was before the committee. Number 1860 SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska State Legislature, spoke on behalf of Representative Samuels, one of the prime sponsors of HB 357, regarding the changes incorporated into the CS. She explained that Section 5 of Version D was totally removed. This was the section that clarified that a minor should remain [accountable] for restitution past age 19. Because this is already the law, she remarked, Section 5 of Version D seemed to complicate the issue rather than clarify it, and so the language was removed. MS. NIELSEN turned attention to page 1, line 4, and page 1, line 10, which now contain the language "unless the victim or other person expressly declines restitution"; this language is intended to address a scenario in which a victim simply doesn't want restitution for whatever reason, for example, if the victim would rather have the offender go to alcohol treatment instead of paying restitution. She turned attention to page 2, lines 15-19, and said this new Section 4 was added so that a defendant would be able to come forward at any time and pay his/her restitution. Thus, if that person had been ordered to pay restitution but was making a payment that was not part of the payment schedule, the court should still accept the money. MS. NIELSEN turned attention to the fourth change, page 2, line 31 [through page 3, line 1], and she said the following language was added: "The court may not reduce an order of restitution but may change the payment schedule." She said this is sort of a compromise to earlier versions' repeal of AS 12.55.045(f). She noted that Representative Gruenberg was concerned that the court wasn't taking into consideration the ability to pay; this additional language simply gives a defendant [who is experiencing financial difficulties the opportunity to pay restitution at a later time]. MS. NIELSEN turned attention to page 3, lines 2-7, the delinquent minor section, which [mirrors] what was done in the adult section to allow the court to accept [a restitution] payment at anytime. Number 1970 REPRESENTATIVE GRUENBERG said he supports the language on page 2, line 31, through page 3, line 1, which proposes to change Title 12. He pondered whether that kind of language could also be put in Title 47 regarding delinquency. He said the committee allowed the court to do a payment schedule for adults but it had not done that for juvenile delinquents. Representative Gruenberg said the two statutes track each other, one is for the adults and the other is for the delinquents, and there may be something already in the delinquency statute, but he wanted that to be investigated and, if appropriate, add that sentence. REPRESENTATIVE SAMUELS turned attention to page 3, line 1, and suggested adding the words, "unless specifically requested by the victim" to address situations in which a victim requests that a restitution order be dropped. REPRESENTATIVE GRUENBERG warned Representative Samuels to be careful that such language is properly drafted. MS. NIELSEN, on the question of whether HB 357 could be challenged on a constitutional basis, said she had checked with the Department of Law (DOL), which relayed that there shouldn't be any such challenges]. Number 2115 REPRESENTATIVE SAMUELS moved to adopt [Amendment 1], which he said would stipulate that if the victim chooses, he/she would be able to drop the order of restitution. Number 2125 REPRESENTATIVE GRUENBERG objected for purposes of discussion. He asked that Amendment 1 be clarified. REPRESENTATIVE SAMUELS explained that Amendment 1 would be: Page 2, line 31, after "restitution" Insert ", unless specifically requested by the victim," REPRESENTATIVE GRUENBERG removed his objection. REPRESENTATIVE SAMUELS asked if it is possible for a victim to be threatened or coerced into dropping a restitution order against his/her will. Number 2174 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that she had never seen that situation arise, but could certainly imagine that scenario if a [defendant] is under a lot of stress with a high restitution payment and tries to put pressure on the victim. REPRESENTATIVE GRUENBERG said that in domestic violence situations, a lot of times [an offender] will pressure the victim to drop the charge. He offered a hypothetical situation in which a victim is given the choice by her abusive ex-husband of either dropping the restitution order against him or having to fight him for custody of their child. Number 2240 REPRESENTATIVE SAMUELS withdrew Amendment 1. REPRESENTATIVE GRUENBERG asked if there is other language in the bill similar to that in Amendment 1. REPRESENTATIVE SAMUELS indicated that there is. REPRESENTATIVE GRUENBERG asked Representative Samuels if he wanted to remove such language from the bill. REPRESENTATIVE SAMUELS said no, because there might be situations in which the victim does not want restitution. CHAIR McGUIRE, one of the prime sponsors of HB 357, indicated that if the language is removed it might [create unintended consequences. REPRESENTATIVE GARA said it can be very expensive and time consuming to prove restitution. He said sometimes there are victims who do not want to be involved in the court process, so there will be certainly be cases in which the court, prosecutor, and defense attorney spend time calculating and ordering a full restitution amount when the victim really doesn't care. He explained that [language] on page 1 requires restitution to be ordered unless the victim expressly declines. However, he said it doesn't address the circumstance in which the case doesn't go to trial, the victim never shows up, and the victim never expresses whether he/she wants restitution, but the bill is requiring a full hearing and litigation over the restitution amount. He said maybe it is not a bad thing that a victim get restitution even if he/she doesn't want it or care, but he expressed concern about spending the money to require the scarce resources of the judicial system to create the restitution order if the victim doesn't care. REPRESENTATIVE SAMUELS said he would assume that if there is money involved, then most victims are going to want it if they've suffered a financial loss. He acknowledged, though, that there may be a small number of victims that aren't going to follow through at least a little bit on the issue of restitution. He offered the scenario in which a kid goes through a neighborhood and shoots out 40 car windows, and said that even if the [victim] doesn't want to go to court, all it takes is a phone call from the district attorney to tell that victim that he/she has restitution coming. He opined that even though the victim might not have cared, he/she would still take the restitution. Representative Samuels said that to him it is about fairness, and that is the [purpose] of the bill - to try to make people responsible for their actions. TAPE 04-7, SIDE B Number 2394 MS. CARPENETI relayed that victims are contacted and asked for evidence of restitution. REPRESENTATIVE GARA asked whether, if there was a court order that asked the victim for receipts, but the victim hadn't handed them in or told what the damages are, the bill says a full restitution hearing must be made even without evidence of restitution. He asked if the court is obligated to figure out the restitution without the victim's help. MS. CARPENETI said that practically, that's not how it would work. She surmised that there would be a restitution hearing and the court would ask for evidence of restitution, but if there isn't evidence, the court would say the victim has a right to restitution, but does not have to exercise that right. REPRESENTATIVE GARA pointed out, however, that [proposed AS 12.55.045(a)(1)] says the court shall, unless the victim expressly says no, order restitution. He said the court would be in violation of the law if it ignored the language in the bill. MS. CARPENETI speculated that the court would simply say that the restitution had been expressly declined. REPRESENTATIVE GARA suggested changing the wording of [proposed AS 12.55.045(a)(1), lines 4-5, to read, "The court shall, if presented with competent evidence, order restitution". REPRESENTATIVE SAMUELS gave an example of a broken windshield, and asked whether, if there is no receipt given, there is no restitution. Number 2301 MS. CARPENETI agreed that if there are no claims or receipts presented by the victim, then there is no restitution ordered. REPRESENTATIVE SAMUELS objected [to the suggested change]. REPRESENTATIVE GARA said he disagrees with Representative Samuels and Ms. Carpeneti, opining that if the law says the court has to order restitution, then the court has to order restitution, whether it is practical or not. CHAIR McGUIRE said she did not like the word, "competent," but agreed with the rest of the wording of the amendment. REPRESENTATIVE SAMUELS said he did not want to put a further burden on the victim by using the term, "competent evidence." REPRESENTATIVE GRUENBERG suggested using, "If presented with sufficient evidence." CHAIR McGUIRE suggested just using "evidence", not "sufficient" or "competent." MS. CARPENETI said she thought that using just "evidence" would be fine. Number 2196 CHAIR McGUIRE moved to adopt Conceptual Amendment 2, as follows: Page 1, line 4 After shall Insert "when presented with evidence" CHAIR McGUIRE noted that there are other areas of the bill that would need conforming amendments; for example, page 1, line 9. She indicated that the intent of Conceptual Amendment 2 is to allow the drafter to make the necessary conforming changes. Number 2163 CHAIR McGUIRE asked whether there were any objections to Conceptual Amendment 2. There being none, Conceptual Amendment 2 was adopted. Number 2150 REPRESENTATIVE SAMUELS spoke about Conceptual Amendment 3 which reads [original punctuation provided]: Sec. 47.12.120 Judgments and orders (4) order the minor and minor's parent to make suitable restitution in lieu of or in addition to the court's order under (1), (2) or (3) of this subsection; under this paragraph, (A) except as provided in (B) of this paragraph, the court may not refuse to make an order of restitution to benefit the victim of the act of the minor that is the basis of the delinquency adjudication;... New section: The court may take into consideration the delinquent minor's ability to pay past age 19, or the age in which the court retains jurisdiction over the minor, when determining the amount of the order of restitution. REPRESENTATIVE SAMUELS explained Conceptual Amendment 3 would allow the court to take into consideration [the dependant's] ability to pay when between the ages of 17 and 19. It states that the court may look at [a minor's] ability to pay [restitution] later on in life. He emphasized that Conceptual Amendment 3 contains the word "may", thus the court would not be mandated to [consider this point]. Number 2082 REPRESENTATIVE SAMUELS moved to adopt Conceptual Amendment 3. Number 2078 REPRESENTATIVE GRUENBERG objected for discussion purposes. He said he does not want to limit the age to 19. Rather, he wants to give the court the discretion to spread the payments out, regardless of the age of the juvenile. REPRESENTATIVE SAMUELS said his intent is to get rid of the artificial barrier of age, and referred the language labeled "New Section", which says, "past age 19." He said sometimes the jurisdiction of the court goes to age 21, and agreed that there should be a payment schedule. REPRESENTATIVE GRUENBERG said he supported the idea [of removing age restrictions], but gave an example of a 13 year-old who has caused $1,000 worth of damage. The court may say to make payments which might end before the minor is 19. He said he would like to see that situation addressed as well. REPRESENTATIVE SAMUELS said if the payment schedule was included, the problem would be addressed. The reason it says, "may" is for just such cases involving younger kids. REPRESENTATIVE GRUENBERG said he understood the meaning to be, "it can be a series of payments, and it can extend past the age of majority." He indicated that he wanted to see the bill with the inclusion of Conceptual Amendment 3 before moving it from committee. He then withdrew his objection. Number 1987 CHAIR McGUIRE asked if there were any further objections to Conceptual Amendment 3. There being none, Conceptual Amendment 3 was adopted. REPRESENTATIVE GARA requested Ms. Carpeneti respond to constitutional issues. He said he wants see that the bill orders as much restitution as possible, without being unconstitutional. He asked if a violation of a restitution order counted as a violation of probation. MS. CARPENETI replied that it did. REPRESENTATIVE GARA stated that if probation is violated, [the defendant] can be put in jail for the remainder of the original sentence. He asked if that statement is correct. MS. CARPENETI replied that it is. REPRESENTATIVE GARA said, then, that there could be a circumstance where a person was recklessly driving, had no insurance, and injured a family causing $1,000,000 worth of damages. He said there is no likelihood that the defendant could come up with that amount. Therefore, if restitution of the full amount is ordered by the court, and the defendant gets out of jail and is unable to make all of the payments, he/she will be thrown in jail because of a violation of the restitution order. He asked if there was a possible due process problem in that situation. MS. CARPENETI replied that there is no debtor's prison in the U.S., but noted that AS 12.55.051(a) specifically addresses the problem. If a probation violation is only because of a lack of payment of restitution and the defendant shows that he/she cannot pay, they cannot be imprisoned. Number 1872 REPRESENTATIVE GARA said he was comforted by [the statute] but wanted to make sure that HB 357 would not conflict with it. MS. CARPENETI asked if he is worried about the language, "shall pay restitution." REPRESENTATIVE GARA said he is worried that if [the bill] were passed, that it would conflict with [a statute] on the books. MS. CARPENETI said she did not see a conflict because the constitution says a victim has the right to restitution and this bill says [the victim] has the right to the order of restitution. REPRESENTATIVE GARA mentioned Southerland Statutory Construction, which he described as a legal treatise that deals with conflicting statutes. He cautioned that the committee stay within this treatise's rules, adding that sometimes when there are two conflicting statutes, the later one supercedes the earlier one, which is invalidated. He surmised that such is not the bill's intention, and suggested that this idea should be stated somewhere [in the bill], and asked Ms. Carpeneti whether she agreed. MS. CARPENETI replied that stating the intent in this public hearing, which is being recorded, is probably [sufficient]. REPRESENTATIVE GARA said he didn't think that people would rely on what is said in this hearing. MS. CARPENETI stated again that she did not see a problem. She said she thought it was clear [in the bill] that a procedure needed to be followed; whatever is ordered. REPRESENTATIVE SAMUELS pointed out that the victim has the constitutional right to restitution. Number 1718 REPRESENTATIVE GRUENBERG said that when the legislature passes a law and doesn't specifically affect other statutes, the court will construe them harmoniously and will find that the prior statute survives. He said he agrees with Ms. Carpeneti's interpretation. CHAIR McGUIRE opined that there has been sufficient discussion on the record regarding this issue to show that this bill does not mean to supercede AS 12.55.501(a). She pointed out that Representative Samuels is correct [regarding the right to restitution]; Article I, Section 24, of the Alaska State Constitution says that crime victims have the right to restitution from the accused. REPRESENTATIVE GRUENBERG turned to Section 3, page 2, lines 12- 14, and noted that the court may order a payment schedule. He asked if it is correct that in considering the payment schedule, the court could consider the defendant's ability to pay. REPRESENTATIVE SAMUELS said that is the intent. REPRESENTATIVE GRUENBERG said that with that clarification he would decline to offer an amendment. REPRESENTATIVE GARA said he was going to vote for the bill, but added that most attorneys do not look up legislative history, especially in criminal cases. Number 1587 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), thanked the sponsors of the bill for the changes to it. She then suggested additional wording, "at the request of the victim," to show that the victims are exercising their right to the restitution. She said she really appreciates the removal of the section that applied to juvenile court jurisdiction. She explained that when a petition to revoke probation is filed, and the person comes into court and demonstrates that the inability to pay was not wilful because he/she could not make the payments, then they get put back on probation and are put on a more doable payment schedule.. Her point, however, is that a whole new hearing has to be scheduled because of not considering in the first place the defendant's ability to pay. In conclusion, she opined that the amendments have been a big improvement to the bill. REPRESENTATIVE GRUENBERG asked if Ms. Wilson had any other changes to suggest that hadn't been discussed yet. MS. WILSON suggested that on page 1, line 4, instead of saying, "unless the victim or other person expressly declines restitution," replace it with, "shall at the request of the victim,". REPRESENTATIVE SAMUELS said he was not in favor of that [change] because of the burden it puts on the victim to appear in court. REPRESENTATIVE GRUENBERG said he wasn't suggesting that the victim go to court, but rather that he/she simply signs a piece of paper. REPRESENTATIVE SAMUELS indicated that he still objects to the suggested change. CHAIR McGUIRE asked whether there was further discussion on the bill. Hearing none, she asked for a motion. Number 1343 REPRESENTATIVE GRUENBERG moved [to adopt the proposed committee substitute (CS) for HB 357, Version 23-LS1384\H, Luckhaupt, 1/29/04, as amended, from committee with individual recommendations and the accompanying fiscal notes]. There being no objection, CSHB 357(JUD) was reported from the House Judiciary Standing Committee.
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