Legislature(2017 - 2018)GRUENBERG 120
03/07/2017 03:00 PM STATE AFFAIRS
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HB 127-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD 3:04:48 PM CHAIR KREISS-TOMKINS announced that the first order of business would be HOUSE BILL NO. 127, "An Act relating to a permanent fund dividend for an individual whose conviction has been vacated, reversed, or dismissed; and relating to the calculation of the value of the permanent fund dividend by including payment to individuals eligible for a permanent fund dividend because of a conviction that has been vacated, reversed, or dismissed." CHAIR KREISS-TOMKINS opened public testimony on HB 127. 3:05:31 PM FRANK TURNEY testified that he supports HB 127. He stated that there are a number of criminal convictions overturned due to newly discovered facts, suggesting a miscarriage of justice. He said that those wrongly convicted have suffered punishment as a result. He asserted that "the Fairbanks Four" should be compensated with the permanent fund dividend (PFD) payments for the 18 years of incarceration as should others whose convictions have been overturned. He offered that wrongly convicted people face many hurdles when re-entering society, such as finding employment and housing, and needing psychological counseling. He opined that compensating these people would not remove the long years of incarceration but would help them "get back on their feet" and have a normal life. He mentioned that other states have set forth compensations for those who have been wrongly convicted and whose convictions have been overturned. He said that he spent nine years incarcerated in Oregon, after which he worked on a governor's task force and on a county community corrections advisory committee. 3:07:59 PM MARVIN ROBERTS stated that he is from Canton, Alaska, and is one of the Fairbanks Four. He relayed that in 1997, he and three others were wrongly arrested and subsequently wrongly convicted for crimes that they did not commit. He said that "after 18 years, we were finally given back our lives," but were not given any compensation and are starting out with nothing. He said that they find themselves struggling without job experience, education, or money for professional counseling. He mentioned that he is working two jobs, which limits time with his family. He maintained that they were not allowed to file for PFDs in prison during the 18 years. He attested that he would have remained in Alaska during those 18 years and would have filed for all his dividends. He stated that the money would benefit the four of them immensely. 3:10:10 PM REPRESENTATIVE TUCK thanked Mr. Roberts for his letter to the committee [included in the committee packet] and for his testimony. CHAIR KREISS-TOMKINS wished Mr. Roberts the best as he transitions back into society. 3:10:33 PM REPRESENTATIVE WOOL asked Mr. Roberts if he was ever offered a PFD application during his years of incarceration. MR. ROBERTS replied that he was not offered a PFD application. 3:11:19 PM NATASHA SINGH, General Council, Tanana Chiefs Conference (TCC), stated that 14 months ago TCC celebrated the release from incarceration of the four men known as the Fairbanks Four - Marvin Roberts, George Frese, Eugene Vent, and Kevin Pease. She relayed that these men maintained their innocence for 19 years and were vindicated after a five-week [hearing]. She said that they were released in exchange for signing an agreement releasing the State of Alaska from any civil liability related to the prosecution or investigation of their cases; therefore, they cannot seek compensation through the court processes available to most people. MS. SINGH mentioned that the Fairbanks Four literally left prison with the shirts on their backs, and the state did not provide these men with assistance in transitioning back into the "real world." She added that despite one's proven innocence, re-entry into society is profoundly difficult for the wrongfully convicted. She maintained that the failure to compensate them adds insult to injury and opined that society has an obligation to compensate the wrongfully convicted. MS. SINGH offered that for Alaska to guarantee true justice to innocent Alaskan men and women who are falsely incriminated, wrongfully convicted, or victimized by the Alaska criminal justice system, many areas of that system must be examined and rehabilitated. She mentioned that there are charging and sentencing disparities regarding both rural and urban Alaska Natives and to all Alaskans. She stated that prosecutorial misconduct and the mechanism for accountability of state officials need to be codified with real and meaningful sanctions available. She added that TCC will be seeking criminal justice reforms and statutory changes. She mentioned eye witness identification and access to post conviction deoxyribonucleic acid (DNA) testing as two areas in need of reform. MS. SINGH relayed that she has personally witnessed Marvin, George, Eugene, and Kevin re-integrate themselves into the community of Fairbanks and try to make something of themselves. She maintained that they truly are doing it on their own. She expressed her belief that they are heroes who have her respect and the respect of the executive board of TCC. 3:15:41 PM BILL OBERLY, Executive Director, Alaska Innocence Project, stated that the proposed legislation would correct an error made by the court and subsequently by the Permanent Fund Dividend Division (PFDD). He asserted that the men and women whose convictions have been vacated deserve the proposed statute. He proclaimed, "The money is there, and it is the right thing to do to give it to them. It is their money, in fact, wrongfully taken from them." He contended that it is the right thing to do morally, as they already have had years taken from their lives, and it is the right thing to do legally, since they should not have been in prison, and the PFD should not have been denied them. He asserted that HB 127 would correct that error. He added that this money could not be put to a better use. A person released after wrongful incarceration receives no help for his/her transition and no help to return to society. He urged the committee to pass HB 127 out of committee. He reiterated that these four men are truly heroes in that despite being wronged terribly, they approach each day with a positive attitude and continue to struggle each day in the face of many barriers. 3:18:06 PM REPRESENTATIVE KNOPP asked if HB 127 is the right vehicle for compensation. He asked why someone, who knew his/her conviction was going to be overturned, would give up his/her right to civil litigation. He offered that the PFD money represents such a small component of the compensation truly due them because of wrongful conviction. MR. OBERLY replied that he would attempt to explain the situation by relating what the presiding judge said after completion of the [five-week] hearing: The judge shared that he had not listened to any testimony from the first three trials or reviewed the two dozen motions and additional testimony submitted during reconsideration of the case. He said that it would take about six months to hear all the testimony and rule on all the motions. He stated that he would be allowed six months to decide on the case, but that six-month period would not start until the review of evidence was completed. He relayed that if he has not made a decision by the end of the six-month period, he would no longer be compensated for his work, but he stated that he would not be rushed into a decision and had no problem working without pay. Through his statements, the judge relayed to the men and those in the courtroom that it could be a year or more before his decision. MR. OBERLY said that at that time, three of the men had been wrongfully imprisoned for 18 years - Mr. Roberts was out on parole. He said they were told they could "get out tomorrow and spend their first Christmas with their family in 18 years." He attested that it was a difficult decision but said that if it were him, he would not want to spend another day in prison. MR. OBERLY emphasized that HB 127 is totally independent of the larger issue of compensation. The proposed legislation would give them money that was wrongfully taken from them because they were wrongfully imprisoned. He contended that it is their money; they are entitled to it; and it should never have been taken from them. 3:23:01 PM CHAIR KREISS-TOMKINS closed public testimony on HB 127. 3:23:38 PM REPRESENTATIVE KNOPP asked how much of the PFD money [for the Fairbanks Four] was received by the Department of Corrections (DOC) and if it would be more appropriate to repay it from DOC's budget rather than PFDD. 3:24:08 PM REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, as prime sponsor of HB 127, explained that PFD criminal funds - funds that are withheld from someone incarcerated or having a felony conviction - are paid predominately to DOC and to a lesser extent to the Violent Crimes Compensation Board (VCCB), the Alaska Council of Domestic Violence and Sexual Assault (CDVSA), the Office of Victims' Rights (OVR), and non-profit victims' rights organizations. REPRESENTATIVE KNOPP asked if it would be more appropriate to repay the funds from the DOC budget or the Alaska Court System budget, since otherwise PFDD would be paying the amount twice. REPRESENTATIVE KAWASAKI replied that under HB 127, the source of funding would be the Reserve for Prior Year Dividend Liabilities - a fund reserved for PFDs denied in error and subsequently awarded. He said the fund currently has $233,000. 3:25:51 PM REPRESENTATIVE JOHNSON asked how the money would be paid to the four men and if there is enough money in the fund to do so. REPRESENTATIVE KAWASAKI reiterated that the balance in the reserve is about $233,000, and if the Fairbanks Four applied under the proposed legislation, they could receive up to $103,000 for the 18 years. He maintained that it is very difficult to predict the number of cases that would be applicable under HB 127, but staff has estimated the following: two in 2011; two in 2012; zero in 2013; two in 2014; and 13 in 2015, which includes the Fairbanks Four. He mentioned that prior to 2011, there were about two to three cases per year that could potentially take advantage of HB 127 if passed. 3:28:52 PM REPRESENTATIVE JOHNSON expressed her concern that there would not be enough money in the reserve fund for all the potential cases. She stated that another concern is whether the state has a responsibility to solicit potential applicants under HB 127. REPRESENTATIVE KAWASAKI answered that Department of Law (DOL) staff informed him that if HB 127 passes, ignorance is not a valid argument for neglecting to apply for the PFDs, and the state has no responsibility to solicit applications. REPRESENTATIVE JOHNSON stated her belief that there should be a fiscal note attached to HB 127. REPRESENTATIVE KAWASAKI commented that the proposed legislation is scheduled for the House Finance Standing Committee, and the fiscal note will be reviewed in that committee. 3:31:30 PM CHAIR KREISS-TOMKINS asked for more information regarding the sufficiency of funds in the PFDD reserve fund for payouts, if HB 127 passes. 3:31:50 PM SARAH RACE, Director, Permanent Fund Dividend Division (PFDD), Department of Revenue (DOR), stated that the amount set aside for the reserve account is calculated every year based on the available amount for calculating the per individual dividend. She explained that PFDD does an analysis that considers not only prior year liabilities but the potential number of individuals turning 18 for whom their parents or sponsors did not apply. She said that regarding the proposed legislation, PFDD may either create another reserve account or may increase the amount available in the Reserve for Prior Year Dividend Liabilities. 3:32:59 PM REPRESENTATIVE LEDOUX asked how the 120-day filing period in the proposed legislation was derived. She opined that it is a very short window. REPRESENTATIVE KAWASAKI suggested that the longer the filing period, the larger the potential payout. REPRESENTATIVE LEDOUX agreed that with a longer filing period, more people who are entitled to the payout would know that they are entitled to it. She expressed her concern that with the 120-day filing period, the Fairbanks Four may be the only people who would apply for the payment under the proposed legislation. REPRESENTATIVE KAWASAKI said he is not sure if there are other people following the progress of HB 127 as closely as the Fairbanks Four. 3:34:41 PM REPRESENTATIVE BIRCH asked if there are any conditions or provisions of the settlement agreement [signed by the Fairbanks Four] that would preclude payment under the proposed legislation. REPRESENTATIVE KAWASAKI referred to the Alaska Superior Court settlement document, which lists eight stipulations of the agreement. He said that with the [signed] document, they agreed not to sue the state. REPRESENTATIVE BIRCH referred to the sponsor statement and asked Representative Kawasaki if he truly believes the PFD is a defining characteristic of what it means to be an Alaskan. REPRESENTATIVE KAWASAKI conceded that the language in the sponsor statement might have been "a little bit over the top." He said he didn't think the PFD was the defining characteristic of being an Alaskan. 3:36:32 PM REPRESENTATIVE KNOPP asked if everyone who has had his/her conviction overturned or dismissed since the first payment year of 1982 would be eligible to apply for their PFDs under HB 127. MS. RACE responded, "That is correct." REPRESENTATIVE KNOPP suggested that the state has no idea of the number of people who would be affected by HB 127 or the length of incarceration per person, and he asked, "What happens when this fund runs dry?" He asked how the annual recalculation of the reserve was performed. He also asked for an explanation of payments reserved for those who did not receive their PFDs as juveniles because their parent didn't apply. MS. RACE answered that every year PFDD calculates the amount of money to be put into the reserve account. That amount is deducted from the money that becomes available for paying dividends, thus reducing the individual dividend amount. She said that after the first year under HB 127, PFDD would have a better idea of the amount that should be put into the reserve. MS. RACE, responding to Representative Knopp's second question, said that individuals turning 18 may apply up until their twenty-first birthday for any PFDs that may have been missed on their behalf. For these individuals, eligibility must be determined for the years of application. 3:38:53 PM REPRESENTATIVE WOOL, paraphrasing the testimony of Deputy Commissioner Jerry Burnett, Department of Revenue, during the House State Affairs Standing Committee meeting of 2/28/17, said that if an incarcerated person applied for his/her PFD every year, then was released because of an overturned conviction, he/she could appeal previous PFD denials. Representative Wool asked Ms. Race if many prisoners apply for PFDs. He asked if they are given the opportunity and access to a computer. MS. RACE replied that PFDD does receive applications from incarcerated individuals, and correctional facilities do request applications for prisoners. REPRESENTATIVE WOOL expressed his understanding that those who are incarcerated are not eligible for a PFD. He asked why an incarcerated person would receive an application if ineligible, and if some get applications, why wouldn't all of them be given applications. MS. RACE responded that many ineligible people apply for PFDs, and PFDD encourages these applications, because that gives PFDD the opportunity to determine eligibility. REPRESENTATIVE WOOL suggested that he may be mistaken in his assumption that anyone in a long-term correctional facility is ineligible for a PFD. MS. RACE said eligibility, regarding incarcerated individuals, depends on timing. She stated that one criterion of ineligibility is that during the qualifying year, an individual has been sentenced because of a conviction of a felony. If a person is both sentenced and incarcerated in the same year, he/she may be ineligible for that year's PFD. If incarcerated for more years, then the ineligibility would be extended for those years. 3:42:43 PM CHAIR KREISS-TOMKINS relayed that if someone was incarcerated for a felony but knew he/she was innocent, it would be in that person's best interest to apply every year until evidence might vindicate him/her. This would allow retroactive eligibility upon appeal of PFD denials and subsequent payments. MS. RACE responded, "That is correct." She said that in this scenario, the applicant would have received a denial letter for every year of application, and the denial letter would have explained the reasons for denial. She confirmed that at the time the conviction was overturned, the person could appeal each year of PFD denial. 3:43:43 PM REPRESENTATIVE JOHNSON asked if anyone eligible for the PFD under HB 127 would be paid a PFD for any period spent out of state. MS. RACE answered that in that situation, the inmate would still be in the state's custody. REPRESENTATIVE LEDOUX asked for clarification regarding the scenario of someone in prison filing a PFD application every year believing that he/she will ultimately be exonerated, and the applications are denied. She asked if there is a time limit to appeal a PFD denial. She suggested that either the appeals would be denied because the person is still incarcerated, or the time would have expired for most of the years by the time the person has been exonerated. She offered that in that case, applying for a PFD for all those years would not put the person at any advantage. MS. RACE confirmed that an individual has 30 days from the date of receipt of a PFD denial letter to start the appeal process. She added, however, that an additional regulation gives an individual, who is in the situation described by Representative LeDoux, 60 days from the time of an overturned conviction to begin the PFD appeal process. REPRESENTATIVE LEDOUX asked if any of the 21 potential recipients of PFDs under HB 127 might have already appealed under the regulation cited by Ms. Race. REPRESENTATIVE KAWASAKI responded that he did not know the answer. REPRESENTATIVE LEDOUX asked how many people have taken advantage of the regulation - that is, were exonerated and then re- appealed their PFD denials. 3:48:58 PM MS. RACE replied that she didn't have that number but could try to find out from the Dividend Enforcement, Review and Appeals Unit. REPRESENTATIVE LEDOUX asked the sponsor to reconsider the 120- day period for PFD application under HB 127. She questioned whether that was an appropriate amount of time considering minors are given three years to apply after turning 18, if applications were not filed in their behalf. CHAIR KREISS-TOMKINS asked if anyone has been reimbursed for PFDs after being exonerated. MS. RACE responded that she is not aware of any such occurrence but could research the question. 3:50:27 PM REPRESENTATIVE WOOL said that he fully appreciates the unreasonable expectation for someone in prison taking on the responsibility of requesting and completing a PFD application year after year, only to be denied. He offered that with the individual's involvement in all the legal processes necessary for having his/her conviction overturned and the many issues flooding his/her life after exoneration and release, finding the PFD denial letters and pursuing the PFD appeal process understandably might be delayed. He opined that the proposed legislation is needed, and he agreed that the 120-day period is too short. 3:52:05 PM REPRESENTATIVE BIRCH said, "Somebody that isn't here is the person who ... started it all, and that's the deceased person." He cited one stipulation of the settlement agreement [signed by the Fairbanks Four] and said, "The petitioners stipulate and agree that the original jury verdicts and the judgements of conviction were properly and validly entered based on the proof beyond reasonable doubt." He agreed with Representative Wool's assessment of the difficulty of filing for PFDs while in prison, and he stated that HB 127 would be an appropriate remedy [regarding the wrongfully convicted]. He reiterated, "We shouldn't lose sight of the fact that ... there is somebody that's not here ... a young man that was lost in some crime, some time ago in the past." 3:53:57 PM REPRESENTATIVE TUCK moved to report HB 127 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 127 was reported out of the House State Affairs Standing Committee.