Legislature(2003 - 2004)

03/05/2004 08:05 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               SB 336-CORRECTIONS: FEES/SURCHARGE                                                                           
                                                                                                                                
CHAIR SEEKINS announced that SB 336 was before the committee.                                                                   
                                                                                                                                
SENATOR  OGAN  questioned  why  the   charge  is  only  $100  for                                                               
violating probation. He felt that  amount will not provide enough                                                               
incentive.                                                                                                                      
                                                                                                                                
MS.  PORTIA  PARKER, Deputy  Commissioner  of  the Department  of                                                               
Corrections  (DOC),   told  members   that  SB  336   requests  a                                                               
correctional  facility  surcharge  for offenders  who  have  been                                                               
convicted  of  felony  and misdemeanor  charges.  DOC  researched                                                               
other states'  fees, and found  they charge a variety  of booking                                                               
fees, administrative surcharges and  other fees. Those fees range                                                               
from $20 to  $250, depending on the state and  whether the fee is                                                               
issued  by  an  intake  facility, jail,  or  long-term  facility.                                                               
Because the State  of Alaska has a  unified [corrections] system,                                                               
the  state operates  all  jails and  prisons.  Other states  have                                                               
county  and city  facilities. Most  of the  fees in  other states                                                               
were  challenged and  upheld in  different  jurisdictions if  the                                                               
fees were uniform and treated  people equally. She noted that DOC                                                               
believes that  charging a  fee for  a conviction  as part  of the                                                               
court  judgment would  be the  safest  and easiest  way to  avoid                                                               
challenge, rather  than charging a  booking or intake  fee, which                                                               
is problematic  when charges are  dropped or the offender  is not                                                               
convicted.  DOC decided  on  the  $100 amount  based  on what  it                                                               
believes can be collected from this population.                                                                                 
                                                                                                                                
DEPUTY COMMISSIONER  PARKER explained the  second part of  SB 336                                                               
pertains to  a $100  application fee  for an  interstate transfer                                                               
for  those  on probation  or  parole.  Most  states have  such  a                                                               
transfer fee.  The applicant  will also  have to  file cash  or a                                                               
bond  because DOC  often has  to  go out-of-state  to return  the                                                               
offender to Alaska if the offender commits a crime.                                                                             
                                                                                                                                
SENATOR OGAN noted  that SB 336 does not  address indigent people                                                               
who cannot  pay and he suspects  a number of offenders  will fall                                                               
in that category.                                                                                                               
                                                                                                                                
DEPUTY COMMISSIONER PARKER deferred to  the Department of Law for                                                               
an explanation  of the collections  process but pointed  out that                                                               
permanent fund dividends  can be garnished, as well  as any wages                                                               
earned while incarcerated.                                                                                                      
                                                                                                                                
SENATOR  OGAN   questioned  whether   felons  are   eligible  for                                                               
permanent fund dividends.                                                                                                       
                                                                                                                                
DEPUTY COMMISSIONER PARKER deferred to  the Department of Law for                                                               
an answer.                                                                                                                      
                                                                                                                                
SENATOR OGAN said he would be  willing to propose an amendment to                                                               
increase  the  $100   fee  for  parolee  release   to  provide  a                                                               
disincentive to violating parole.                                                                                               
                                                                                                                                
CHAIR  SEEKINS  asked if  the  $100  would  be collected  when  a                                                               
prisoner is released  on parole or whether it  would be collected                                                               
if the person ends up back in jail.                                                                                             
                                                                                                                                
DEPUTY COMMISSIONER  PARKER said the $100  surcharge on probation                                                               
and parole is suspended so it does  not have to be paid unless an                                                               
offender  violates the  conditions  of probation  or parole.  She                                                               
explained that a felon who is  incarcerated would have to pay the                                                               
$100 correctional  facility fee and  then an additional  $100 fee                                                               
if that  felon is  released on parole  or probation  and violates                                                               
the  conditions. She  further explained  that a  small number  of                                                               
offenders who want an interstate  transfer will also have to post                                                               
cash or  a bond  and that  is only paid  if DOC  has to  pick the                                                               
person up out-of-state for a violation.                                                                                         
                                                                                                                                
MR. MARC ANTRIM, Commissioner of  DOC, clarified that SB 336 does                                                               
not address parole. Probation is  a function of the court; parole                                                               
is the function of an  independent board. There is no interaction                                                               
between the court system and the  parole board so SB 336 does not                                                               
have a fee collection process attached to it.                                                                                   
                                                                                                                                
CHAIR SEEKINS indicated  that SB 336 is basically  a revenue bill                                                               
that attempts to recover some of DOC's costs.                                                                                   
                                                                                                                                
COMMISSIONER ANTRIM said that is correct.                                                                                       
                                                                                                                                
CHAIR  SEEKINS asked  how  much  DOC expects  to  recover at  100                                                               
percent.                                                                                                                        
                                                                                                                                
COMMISSIONER  ANTRIM said  about  30,000 bookings  are made  each                                                               
year but not all of those folks are convicted.                                                                                  
                                                                                                                                
DEPUTY COMMISSIONER  PARKER added that  the DOL's fiscal  note is                                                               
based on  what DOL believes  it can  collect, not on  100 percent                                                               
collection.                                                                                                                     
                                                                                                                                
MS. KATHRYN  DAUGHHETEE, Director of the  Administrative Services                                                               
Division, DOL, answered  the amount would be $1.3  million if 100                                                               
percent was collected.                                                                                                          
                                                                                                                                
CHAIR SEEKINS  said he watches  the judicial system on  a routine                                                               
basis and  often questions, when  he sees  a DUI reported  in the                                                               
newspaper, how  a $1,000 mandatory  fine can be reduced  to $300.                                                               
He believes the  court's rationalization is that it  is better to                                                               
collect some amount  from people who cannot pay  the full amount.                                                               
He questioned  whether the courts  will further reduce  the fines                                                               
if offenders must pay these other fines.                                                                                        
                                                                                                                                
COMMISSIONER ANTRIM  believed the  court's intent is  to suspend,                                                               
not  reduce,  the fine  to  exercise  a  hammer on  a  subsequent                                                               
offense. He noted  that in a typical DUI case,  an offender might                                                               
be fined $1000 with $250 suspended  and the jail time would be 10                                                               
days  with 7  suspended. However,  if that  person gets  a second                                                               
DUI, the $250 fine and 7 days in  jail would be added to the next                                                               
sentence.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS said  he has no problem with trying  to collect the                                                               
fines when possible because incarceration is expensive.                                                                         
                                                                                                                                
SENATOR OGAN jested  that the state could  probably contract with                                                               
the  Hilton Hotel  to house  prisoners for  a lesser  amount than                                                               
prison cells.                                                                                                                   
                                                                                                                                
CHAIR SEEKINS took public testimony.                                                                                            
                                                                                                                                
MS. BARBARA BRINK, public defender  for the State of Alaska, told                                                               
members  that  she fears  that  as  the  state continues  to  add                                                               
surcharges and fees, it might  be imposing burdens on people that                                                               
are impossible  to meet.  Those people  who are  getting released                                                               
from  custody have  families  to  support and  bills  to pay.  In                                                               
criminal  cases,  their  most  pressing   obligation  is  to  pay                                                               
restitution. In  addition, most of these  people are disqualified                                                               
from receiving a  permanent fund dividend.  She  pointed out that                                                               
according  to  a recent  Alaska  Judicial  Council study,  public                                                               
attorneys  handle 80  percent of  all criminal  cases. Collecting                                                               
fees from 80  percent of that population will  be very difficult.                                                               
Many  of these  people  have already  been  fined: the  mandatory                                                               
minimum  fine for  DUI penalties  ranges from  $1500 to  $10,000.                                                               
Essentially, the state already charges  a conviction surcharge of                                                               
$100 for  a felony,  $50 for  a misdemeanor, and  $75 for  a DUI.                                                               
Those fees  are used for  public safety training.  Defendants who                                                               
need  treatment are  referred to  the Alcohol  and Safety  Action                                                               
Program,  and those  defendants pay  a  $100 fee,  half in  cash,                                                               
before they are even accepted  to the program. And people serving                                                               
sentences for  DUIs must  pay their  cost of  imprisonment. Those                                                               
costs  range from  $236  to $2,000.  On top  of  that, the  state                                                               
imposes Rule  39 costs, which  requires offenders to pay  $250 to                                                               
$5000 for their [court-appointed] lawyer.                                                                                       
                                                                                                                                
MS.  BRINK  cautioned  that  because  of the  way  this  fine  is                                                               
imposed, when an  offender is brought to jail,  whether booked or                                                               
not, it  provides a  lot of  opportunity for  unfair application.                                                               
The fine  will be based solely  on whether the police  officer or                                                               
district  attorney  chooses  to  issue a  summons  or  to  arrest                                                               
someone. She feels it is particularly  onerous to impose a fee of                                                               
$100 and  a bond requirement for  those who would like  to get an                                                               
interstate transfer. It  seems the state would  want to encourage                                                               
people to be  with families and support networks  in other states                                                               
while on  probation rather  than to stay  in Alaska  because they                                                               
cannot pay the fee.                                                                                                             
                                                                                                                                
SENATOR OGAN asked Ms. Brink if  the statistic she cited about 80                                                               
percent  of  criminal  defendants  being  represented  by  public                                                               
defenders includes people who are on public assistance.                                                                         
                                                                                                                                
MS.  BRINK  said  it  does.  A person  on  public  assistance  is                                                               
presumed to  be indigent  and is entitled  to public  counsel. Of                                                               
the 80  percent, 63 percent  are appointed a public  defender and                                                               
17 percent are appointed to the Office of Public Assistance.                                                                    
                                                                                                                                
SENATOR  OGAN   said  his  knee-jerk  reaction   is  that  public                                                               
assistance should be cut off for repeat felons.                                                                                 
                                                                                                                                
CHAIR  SEEKINS asked  if  a booking  facility  is a  correctional                                                               
facility.                                                                                                                       
                                                                                                                                
COMMISSIONER ANTRIM said it is.                                                                                                 
                                                                                                                                
CHAIR SEEKINS asked if any person  who is convicted would pay for                                                               
the booking, even if that person does not spend a day in jail.                                                                  
                                                                                                                                
COMMISSIONER ANTRIM  said that  is correct.  He then  agreed with                                                               
Ms. Brink that  a lot of fees already exist  but some people keep                                                               
re-offending  and find  money to  buy drugs  and alcohol  and pay                                                               
impound fees  for their cars.  He does not believe  an additional                                                               
$100 will  slow them down. He  noted the bond for  the Interstate                                                               
Compact is designed  to recoup some of DOC's costs.  DOC must fly                                                               
a state  trooper to another  state and usually house  that person                                                               
for a night so DOC must buy  three plane tickets and pay per diem                                                               
plus the personnel costs.                                                                                                       
                                                                                                                                
CHAIR SEEKINS informed members that  an amendment proposed by DOC                                                               
had been distributed.                                                                                                           
                                                                                                                                
DEPUTY COMMISSIONER PARKER told members  that DOC worked with the                                                               
court  system  and  DOL  on   the  amendment,  which  makes  some                                                               
technical   changes   to   improve  the   collection   procedure,                                                               
particularly as it relates to the probation fee.                                                                                
                                                                                                                                
SENATOR  THERRIAULT   moved  to  adopt  the   proposed  amendment                                                               
[Amendment 1], which reads as follows.                                                                                          
                                                                                                                                
                      A M E N D M E N T  1                                                                                  
                                                                                                                                
OFFERED IN THE SENATE TO SB 336:                                                                                                
                                                                                                                                
Page 2, lines 5 and 6:                                                                                                          
                                                                                                                                
     Delete: ", as a condition of probation,"                                                                                   
                                                                                                                                
Page 2, line 14:                                                                                                                
                                                                                                                                
     Between "under" and "this" insert: "(a) of"                                                                                
                                                                                                                                
Page 2, line 15:                                                                                                                
                                                                                                                                
     After "conviction." Insert: "The court shall include the                                                                   
imposition of a surcharge under (c)  of this section in the order                                                               
revoking probation."                                                                                                            
                                                                                                                                
Page 2, line 20:                                                                                                                
                                                                                                                                
     After "28.30.032(o)." insert, "The state may enforce                                                                       
payment of  a surcharge under this  section under AS 09.38  as if                                                               
it  were   a  civil  judgment  enforceable   by  execution.  This                                                               
subsection does not  limit the authority of the  court to enforce                                                               
fines."                                                                                                                         
                                                                                                                                
SENATOR OGAN objected for the  purpose of discussion. He asked if                                                               
the intent of  the amendment is to allow a  person who cannot pay                                                               
to be put on probation.                                                                                                         
                                                                                                                                
DEPUTY COMMISSIONER PARKER  said if a person is  on probation and                                                               
their  provision is  revoked, that  person will  have to  pay the                                                               
$100 fee.  That language  was rewritten  so that  the fee  is not                                                               
listed as  a condition of probation  because there was no  way to                                                               
make that work. The fee would be imposed once revocation occurs.                                                                
                                                                                                                                
SENATOR OGAN  asked for  a description of  the second  change the                                                               
amendment will make.                                                                                                            
                                                                                                                                
DEPUTY COMMISSIONER PARKER deferred to DOL.                                                                                     
                                                                                                                                
TAPE 04-16, SIDE A                                                                                                            
                                                                                                                                
MS. ANNE  CARPENETI, representing  the Criminal Division  of DOL,                                                               
told  members that  the amendment  was suggested  by a  judge who                                                               
reviewed  the bill  and was  concerned about  the possibility  of                                                               
collecting the surcharge for revocation  of probation. DOL agreed                                                               
with the  judge's assessment  and made  minor amendments  to make                                                               
the collection of  that surcharge similar to the  process used to                                                               
collect the facilities fee.                                                                                                     
                                                                                                                                
SENATOR OGAN referred  to the language on page 20  and asked what                                                               
"a civil judgment enforceable by execution" means.                                                                              
                                                                                                                                
MS. DIANE WENDTLANDT, Assistant  Attorney General, DOL, explained                                                               
it means  that DOL can  garnish permanent fund  dividends, wages,                                                               
or bank accounts.  In general, DOL would not do  that for amounts                                                               
as  small as  $100.  DOL handles  a  large volume  so  it is  not                                                               
economically feasible to  do more than attach  the permanent fund                                                               
dividend. Without  the amendment,  DOL would be  unable to  get a                                                               
writ  of  execution, meaning  it  could  not do  any  involuntary                                                               
collection.  DOL  could  only accept  voluntary  payments,  which                                                               
would be fairly low.                                                                                                            
                                                                                                                                
SENATOR OGAN referred  to the fiscal note and asked  if the state                                                               
will collect more money than the collection costs.                                                                              
                                                                                                                                
CHAIR SEEKINS said that depends on how much can be collected.                                                                   
                                                                                                                                
SENATOR OGAN removed his objection to adopting Amendment 1,                                                                     
therefore it was adopted.                                                                                                       
                                                                                                                                
CHAIR SEEKINS closed public testimony.                                                                                          
                                                                                                                                
SENATOR OGAN moved CSSB 336(JUD) from committee with individual                                                                 
recommendations and attached fiscal notes.                                                                                      
                                                                                                                                
CHAIR SEEKINS announced that without objection, the motion                                                                      
carried. He then adjourned the meeting at 9:55 a.m.                                                                             

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