Legislature(1995 - 1996)
03/24/1995 01:40 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= 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.
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