Legislature(1995 - 1996)
03/24/1995 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 24, 1995 1:40 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Bettye Davis Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT Representative Al Vezey COMMITTEE CALENDAR HB 219: "An Act authorizing special medical parole for terminally ill prisoners." PASSED OUT OF COMMITTEE HB 25: "An Act revising Rule 16, Alaska Rules of Criminal Procedure, relating to discovery and inspection in criminal proceedings, to adopt the comparable federal rule." PASSED OUT OF COMMITTEE WITNESS REGISTER REPRESENTATIVE ELDON MULDER Alaska State Legislature Alaska State Capitol, Room 411 Juneau, AK 99811-1182 Telephone: (907) 465-2647 POSITION STATEMENT: Sponsor of HB 219 DENNIS DEWITT, Legislative Assistant to Representative Eldon Mulder Alaska State Legislature Capitol Building, Room 411 Juneau, AK 99811-1102 Telephone: (907) 465-2647 POSITION STATEMENT: Spoke on CSHB 219 JERRY SHRINER, Special Assistant Office of the Commissioner Department of Corrections 240 Main Street, Suite 700 Juneau, AK 99801 Telephone: (907) 465-4640 POSITION STATEMENT: Spoke on CSHB 219 RICHARD VITALE, Administrative Assistant to Representative Sean Parnell Alaska State Legislature Capitol Building, Room 515 Juneau, AK 99811 Telephone: (907) 465-2995 POSITION STATEMENT: Gave sponsor statement for HB 25 DEAN GUANELI, Chief Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 25 PREVIOUS ACTION BILL: HB 219 SHORT TITLE: PAROLE OF TERMINALLY ILL PRISONERS SPONSOR(S): REPRESENTATIVE(S) MULDER, Foster JRN-DATE JRN-PG ACTION 03/01/95 531 (H) READ THE FIRST TIME - REFERRAL(S) 03/01/95 531 (H) JUDICIARY, FINANCE 03/22/95 (H) JUD AT 01:00 PM CAPITOL 120 03/24/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 25 SHORT TITLE: CRIMINAL DISCOVERY RULES SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde JRN-DATE JRN-PG ACTION 01/06/95 27 (H) PREFILE RELEASED 01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 27 (H) JUDICIARY, FINANCE 01/18/95 75 (H) COSPONSOR(S): GREEN 01/19/95 89 (H) COSPONSOR(S): BUNDE 01/27/95 (H) JUD AT 01:00 PM CAPITOL 120 01/27/95 (H) MINUTE(JUD) 01/30/95 (H) JUD AT 01:00 PM CAPITOL 120 01/30/95 (H) MINUTE(JUD) 02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519 02/06/95 (H) JUD AT 01:00 PM CAPITOL 120 02/06/95 (H) MINUTE(JUD) 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 02/08/95 (H) MINUTE(JUD) 02/13/95 (H) JUD AT 01:00 PM CAPITOL 120 02/13/95 (H) MINUTE(JUD) 02/15/95 (H) JUD AT 01:00 PM CAPITOL 120 02/17/95 (H) JUD AT 01:00 PM CAPITOL 120 02/22/95 (H) JUD AT 01:00 PM CAPITOL 120 02/22/95 (H) MINUTE(JUD) 02/27/95 (H) JUD AT 01:00 PM CAPITOL 120 03/10/95 (H) JUD AT 01:00 PM CAPITOL 120 03/10/95 (H) MINUTE(JUD) 03/15/95 (H) JUD AT 01:00 PM CAPITOL 120 03/15/95 (H) MINUTE(JUD) 03/20/95 (H) JUD AT 01:00 PM CAPITOL 120 03/24/95 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 95-35, SIDE A The House Judiciary Standing Committee was called to order at 1:40 p.m. on Friday, March 24, 1995, by CHAIRMAN BRIAN PORTER. A quorum was present. CHAIRMAN PORTER announced HB 219 and HB 25 would be heard. He noted that there were two people on teleconference. HB 219 - PAROLE OF TERMINALLY ILL PRISONERS CHAIRMAN PORTER introduced Representative Eldon Mulder, sponsor of HB 219, and invited him speak about the bill. Number 140 REPRESENTATIVE ELDON MULDER, Prime Sponsor of HB 219, came before the committee to speak on HB 219. He explained HB 219 allows for the transport for terminally ill. He said the issue was looked at last year at which time the bill was smaller, and a little more concise. REPRESENTATIVE MULDER related that special medical parole is a tool which the Sentencing Commission recommended, and the Department of Administration gave support to as well, in relation to taking advantage of paroling individuals to defer medical costs. He stated it is a tool the Parole Board can use to help control some of the spiraling costs incurring in correctional institutions. Representative Mulder also stated that when an inmate is incarcerated and in a medical facility, the state is responsible for 100 percent of their medical costs. If the inmate is released on medical parole, then the individual is eligible for at least half coverage by Medicaid and the state would be able to save some of the cost. REPRESENTATIVE MULDER gave an example of costs incurred. He said last year, there was a case of an AIDS victim who spent the last two months of his life in a hospital. He was an inmate and his care was part of the supplemental budget request, with those two months costing the state $567,000. Representative Mulder stated that had there been this provision, some of the costs could have been awarded. REPRESENTATIVE MULDER went on to say, he felt the changes that occur relate, in part, to added security and definition of terminally ill. He said it is important to note there is no intention to have this ever be a risk to the community at large, as these individuals pose no risk to society. They are simply ready for their time to die. The inclusions of the changes made were to make the bill more constrictive than in the past and is not as flexible. Representative Mulder said this gives the Board of Parole more direction and definition as to what is meant. He called attention to the proposed draft committee substitute (CS) and a proposed amendment to that CS. He said this was a product of consultation with the Department of Law, the Parole Board, the Department of Corrections and his office. CHAIRMAN PORTER stated there were two people on teleconference wanting to testify as well as people in attendance to answer questions. He then called on Representative Finkelstein. Number 140 REPRESENTATIVE DAVID FINKELSTEIN asked for additional information (indisc.). Number 145 REPRESENTATIVE MULDER described the new sections as adding a small change to inmates for medical care, as a way for Corrections to let inmates know that there is a cost for prescription drugs and medical relief. There is a small incremental amount to see a doctor, if necessary. The whole thing is to make certain there is a need for a doctor so they know it costs to see a doctor. Representative Mulder referred to Section 2, where drug testing is discussed and said it requires the prisoner to reimburse the Department of Corrections. He said it is important to note that it is only to the extent that the person can pay. Representative Mulder stated Section 13 makes other insurance coverage available to prisoners, primarily to the Department of Corrections. In other words, if the inmate has any coverage, his coverage is primary and will be charged before the state will pick up some of the costs. He said Section 14 requires the commissioner of the Department of Public Safety to implement a program requiring other coverage to pay for health care provided in community jails. CHAIRMAN PORTER asked if there were questions of Representative Mulder. REPRESENTATIVE CYNTHIA TOOHEY referred to the wording, "special medical or medical referral," and asked if there would be those who are dying? REPRESENTATIVE MULDER answered that this has been a problem in trying to define "terminally ill," and the answer is basically, yes. The restrictions and constraints are very restrictive. He said the Department of Law could speak to that. REPRESENTATIVE TOOHEY then referred to page 5, line 5, and asked if people wouldn't be released dying but are still able to work. REPRESENTATIVE MULDER said that is current statute. REPRESENTATIVE TOOHEY said to spend $500,000 on a terminally ill patient is horrible. She would like to have backup on that so it can be investigated. REPRESENTATIVE MULDER responded that the patient was in the intensive care unit for most of the time, and she is right. It was outlandish. REPRESENTATIVE FINKELSTEIN complimented Representative Mulder for taking on this subject, which is not very appealing or rewarding. He said the emphasis on public condemnation makes it hard to see how it fits into the criteria listed in the bill. He said the criteria relates to cost savings. REPRESENTATIVE PORTER said his understanding is the emphasis is on protecting the public when making this kind of consideration. REPRESENTATIVE FINKELSTEIN feels it is a philosophical consideration as there is a big prison population with various categories of crimes against society. He asked who do we let out early? He said he is not trying to be inhumane about this, but whatever conditions originally applied to the person, the need to protect society, the need to punish them for their violations, still exist. He said there may be less of a threat if they are going to die, but you can have a terminal disease and still be a threat to society. Representative Finkelstein said he feels it is obvious it is not a clear cut thing in that these requirements are being met. Number 320 DENNIS DEWITT, Legislative Assistant to Representative Eldon Mulder, explained that the bill requires that there be a change in the person's status. This bill is trying to get to where someone has come into the system, their status changed, and they no longer present a danger to society. He said this bill does not give anyone a parole by simply meeting the criteria of being terminally ill. The Parole Board still has the discretion to make a determination whether or not they are a danger to society. The purpose of the bill is to give the Parole Board a little more flexibility in areas where not only is it less costly to provide care, but it would be possible to pick up other third party coverage to help pay for the care. He also stated that most prisons are not the appropriate place to provide for the care, so there is some humane economic to it. Number 350 REPRESENTATIVE FINKELSTEIN referred to page 8, lines 27 through 29, regarding having prisoners pay part of, or all of the costs. He said he feels prisoners and money is a big issue, and what they should be paying for. He suggested that something be added that prisoners shall reimburse the department for drug testing. MR. DEWITT said they had looked at health care costs in general and this was somewhat within that rubric. He gave an example of someone who is in a halfway house and earning wages, then it was felt it was a reasonable expectation they help pay for the requirements of being back in society. Mr. DeWitt said he feels it is a reasonable way to possibly recapture some costs for the department as they are driven by the activity of the individual. REPRESENTATIVE MULDER responded there are numerous instances where friends or cohorts of the inmates smuggle contraband into the institutions such as injecting a tennis ball with whatever, throw it over the fence and it is picked up by the cohort on the inside. He stated this effort is modeled by some other states to try and recoup some of the medical costs being experienced here. Number 400 REPRESENTATIVE CON BUNDE asked what the practical cost was. He stated he wouldn't look at it to really recapture much money, and the net result might be by the time the paperwork is done, there is no money return. He asked what will the net gain be in charging these fees? REPRESENTATIVE MULDER replied that there was no definite price established and he doubts the Department of Corrections could give a range. He said he realizes it will not defray the entire cost of the program, but every little bit helps. This is one of those areas where they are trying to do a little bit of cost prevention. Number 440 REPRESENTATIVE TOOHEY felt drug testing would be a good way to start, to see if it will help. REPRESENTATIVE BETTYE DAVIS wanted to follow up on the subject Representative Bunde was speaking about regarding the amount of money prisoners would pay. How much money do prisoners receive and where does it come from? JERRY SHRINER, Special Assistant, Office of the Commissioner Department of Corrections, answered that while they are institutionalized, the amount of money they would have would be very limited. Those who work can generally expect to make about $1 per hour and there are a number of personal items they are required to buy out of that. He continued that those out on the street, in halfway houses, or on probation, have routine drug testing at specified intervals. Those people generally have some income and probably are capable of paying for their drug testing. Mr. Shriner said on the inside, it would be much more difficult to have them pay. Number 500 CHAIRMAN PORTER said he hoped the routine drug testing is not so routine as to be predictable. REPRESENTATIVE DAVIS indicated she still wants an answer to her question. She said is still not clear about the people who are incarcerated and their money. MR. SHRINER responded that people inside the prison have jobs in the kitchen, maintenance, laundries and various areas. They are paid for that work. Not all of the prisoners have work. There are not enough jobs or money to pay everyone, but some do have jobs and, on rare occasions, some have income that is available from outside sources, i.e., relatives, trust funds, businesses, but there is not a lot of that. He said basically, it is that buck an hour they get for jobs inside the prisons. REPRESENTATIVE DAVIS asked if those who did not have any money would still have their medical needs taken care of. MR. SHRINER affirmed that their medical needs would be taken care of. CHAIRMAN PORTER referred to Section 12 and asked if he was correct in the assumption that to be released with this provision, the inmate must be in a condition wherein he/she is confined to a bed throughout the entire period, or is confined to bed and likely to die from the condition, or is a quadriplegic? He asked if those were the three reasons. MR. DEWITT answered yes, that is the way it was crafted. CHAIRMAN PORTER said he appreciated the victim's rights language in the bill, but wonders if it is necessary. He asked if the victims rights are already in the statute in terms of the victim having the right to be notified of parole hearings that might result in the release of their perpetrator? MR. DEWITT stated they were trying to differentiate between special medical parole and discretionary parole, the concern being to make sure someone later on doesn't suggest the victim's right is not included in special medical parole. CHAIRMAN PORTER interjected that the victim's right is not a constitutional right, and the statute says that any release, determination, or consideration will be determined at the time. MR. DEWITT agreed it may be overkill, but felt that was better than leaving an open question. REPRESENTATIVE MULDER responded he had attempted to be as cautious and conservative as possible when it was approached last time, but he doesn't want to be accused of being soft on crime any more than anyone else does. He said there is still a level of fear raised by certain elements. CHAIRMAN PORTER asked if there were other questions of the sponsor or agency people. There being none, he entertained a motion to adopt the proposed CS. REPRESENTATIVE BUNDE moved to adopt CSHB 219(JUD), Version G, dated 3/23/95. CHAIRMAN PORTER referred to the proposed amendment by the Department of Law. He asked if Mr. DeWitt would like to speak to it. MR. DEWITT referred to the CS and said the drafters suggested it be included as an amendment to the CS rather than rewriting the entire CS for today's meeting. CHAIRMAN PORTER asked Mr. DeWitt to explain the amendment. MR. DEWITT stated it adds the word "quadriplegic" on page 1, line 3, following the word "disabled". The word "quadriplegic" would also be added following the word "disabled" on page 3, lines 8 and 10. CHAIRMAN PORTER called the amendment, "amendment number one." CHAIRMAN PORTER said there was a motion to move amendment number one, Version G.1, dated 3/25/95. He asked if there was an objection. Hearing none, amendment number one was adopted. Number 570 REPRESENTATIVE BUNDE said, "I just want to observe that, you know as I read this, and I want it very clear on the record, that anybody would be eligible for this medical parole because of their physical condition, would no longer be very likely (indisc.), they'd have to think evil thoughts, mostly. And then, while I don't object to the paying, and even if it's only a dollar, and I would guess the average inmate probably makes $120 a month, they have to have a $25 urine test once, twice, three times a month, and they had to pay a full boat, it'd be pretty spendy. Some of them most likely (indisc.) their prorated obligation would be pretty small. And noting, in my mind, that that's simply a token payment so that they're reminded of their cooperation in their rehabilitation or whatever. Also noting that it's not going make any money necessarily for the Department of Corrections. So I don't oppose it, I just want to make sure that we understand we're not making a fiscal impact while we do this." REPRESENTATIVE JOE GREEN asked how many people fall into these three categories. REPRESENTATIVE MULDER responded it was probably between five and ten. REPRESENTATIVE GREEN said at potentially a half million dollars each. REPRESENTATIVE MULDER agreed. REPRESENTATIVE BUNDE made a motion to move CSHB 219(JUD) as amended. CHAIRMAN PORTER said there is a motion to move the bill with individual recommendations and attached fiscal notes. He asked if there was an objection. Hearing none, CSHB 219(JUD) was passed out of the House Judiciary Committee. HB 25 - CRIMINAL DISCOVERY RULES CHAIRMAN PORTER said the next order of business would be HB 25, which has been before the committee previously. There were areas of concern, but he believes they have been addressed in the new CS. He asked the sponsor to introduce the new CS and explain it. Number 630 RICHARD VITALE, Administrative Assistant to Representative Sean Parnell, sponsor of House Bill 25, came before the committee. He noted Representative Parnell was at another committee meeting. Mr. Vitale called the committee's attention to Draft H of the bill, which is a departure from the last version which was an opt-in version to discovery. Mr. Vitale stated that Draft H attempts to go about it in a slightly different way, which the American Bar Association has endorsed, and many states have been going in this direction. It is full and open reciprocal discovery exempting only defendant statements, which protects their rights to self- incrimination. He asked that Mr. Dean Guaneli of the Department of Law speak to direct questions about the bill and what it does. Mr. Vitale said he wouldn't give a history or explanation as this information is included in the committee packets. CHAIRMAN PORTER stated there were people to testify, two of them on the teleconference network. MR. VITALE referred to working with other parties and said he has worked with counsel, prosecutors and public defenders. Ninety-nine percent of the bill reflects that everybody is pretty much on line. He noted John Salemi with the Public Defender's Office still had one concern but he felt it could be dealt with in another committee. There was no logical solution to everybody's concerns, but he was comfortable with the bill being passed out as it is now. An unidentified speaker asked to hear about Sections 2, 3, and 4. Number 690 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, said he would summarize where the bill has been changed and perhaps help the committee understand why the provisions are needed. He stated the initial version of the bill was essentially the federal rule on discovery, which appears to give information to both sides but doesn't. You exchange names of experts and then nobody gets anything until the middle of trial. That, the department felt was inappropriate so they tried to do the next best thing which was to adopt a rule that comported with the Alaska Supreme Court's constitutional decision in this area, and which tried to legally circumvent that decision by having the defendant waive his right to self-incrimination. In other words, agree to opt into this discovery process and the prosecution and defense both turned over information. MR. GUANELI said that turned out to be a cumbersome process. After thinking about this, it was decided perhaps the best way to address this issue was to focus on the Supreme Court's opinion that had caused all the problems - the Scott decision which is over 20 years old - and take it on directly. In other words, to propose a statute that would say the prosecution gives over information, the defense gives over information. He said that flies directly in the face of the Supreme Court Scott decision. Mr. Guaneli said this bill, on its face, if that decision is still good law, is unconstitutional, but it is hoped the Supreme Court will change its mind. When there is a case brought up to it, it will reverse the Scott decision and it will uphold this bill. The department thinks that will be the case because Alaska has the most liberal discovery rules in the country. The Scott decision is the only Supreme Court decision out there that rules in that way, by saying there are Fifth Amendment rights to witness lists. MR. GUANELI said given that that's the case, and given that the American Bar Association (ABA) has come out with a new edition of its discovery rule, which is largely adopted in this bill, he thinks the Supreme Court is going to go in that direction. Mr. Guaneli said this discovery rule was based on the 1970 ABA standards and the department thinks there is a good reason to believe the court will go along with the 1994 ABA standards. MR. GUANELI then referred to the last three sections, which are proposed in the amendment. He stated that in the process of coming up with the new version of the bill, the sponsor's office and his office both worked closely with the Public Defender Agency. They had a number of comments about the first draft. He said their concerns have been met on all but one minor point, and in doing so there were some compromises. In other words, the department expanded what they have to give the defense. He said they are giving them a little more or a little earlier discovery of certain matters not requiring that they request it, but just automatically turning them over which are things that they don't have to currently do. MR. GUANELI referred to Section 2 and said it provides that the bill is not severable. In other words, if the court is going to strike down part of it such as the defense obligation to turn over, there is no reason to that they should be stuck with some additional obligations, so they go back to the current rule. The bill requires a non-severability clause because of an Alaska statute that says, "If the legislation is silent, it means it is severable." In other words, if one part is stricken down the other part stays. MR. GUANELI referred to Section 3, which says this applies to essentially all criminal cases that are going on right now. If it didn't fade out, there would be at least an ambiguity about whether the rule applied to criminal cases that are going on in the system at the time the bill took effect. Mr. Guaneli said they want the rule to apply to all criminal cases that are going on in the system. He stated there is no reason to have two separate discovery rules applying to pre-July 15 cases and after July 15 cases. If you don't specifically say it, there is a presumption that a bill is not retroactive. MR. GUANELI referred to Section 4, which says the Act takes effect July 15, 1995. That coincides with the effective date of the changes the Supreme Court made in their rule last month. This says that it specifically supersedes those changes, so at the time the Supreme Court's rule changes would have taken effect, this new rule would take effect, so you don't have three versions of the rule going on, you've got just one. REPRESENTATIVE TOOHEY asked if this would incur a whole bunch of court cases that are going to turn supplemental. MR. GUANELI answered the department doesn't anticipate that any kind of supplemental would be required. They would anticipate that litigation is going to be required to get the Supreme Court to overrule the Scott decision. Mr. Guaneli said the Criminal Rules Committee that looks at these rules, and that had made the recommendations for the rules adopted last month by the Supreme Court, many of the people on that committee are of the opinion that the Supreme Court cannot change its rule in a way that is contrary to one of its existing case law decisions. It has to have a case in front of it where there are arguments on both sides, pro and con, in order for the court to do that. CHAIRMAN PORTER asked if there were more questions about amendment number one. REPRESENTATIVE BUNDE moved amendment one. CHAIRMAN PORTER indicated amendment one addresses Sections 2, 3 and 4. He asked if there was discussion or objections. Hearing none, Amendment number one is adopted. Chairman Porter said the committee needs to adopt the CS. REPRESENTATIVE TOOHEY moved to adopt the CS for House Bill 25, work draft H, dated 3/23/95. CHAIRMAN PORTER stated there was a motion to adopt the CS as described. He asked if there was an objection. Hearing none, the CS for HB 25 was adopted. Chairman Porter said he would entertain another motion to adopt amendment number one. REPRESENTATIVE BUNDE moved to adopt the amendment to the CS. CHAIRMAN PORTER asked if there was an objection. Hearing none, amendment number one was adopted. REPRESENTATIVE BUNDE moved that committee substitute for House Bill 25, as amended, pass from the House Judiciary Committee with individual recommendations and attached fiscal notes. Number 800 CHAIRMAN PORTER asked if there was an objection. Hearing none, CSHB 25(JUD) was passed out of the House Judiciary Committee. ADJOURNMENT The House Judiciary Committee meeting was adjourned at 3 p.m.