Legislature(1999 - 2000)
03/15/1999 01:44 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 15, 1999
1:44 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 1
"An Act relating to good time and release on mandatory parole."
-HEARD AND HELD
SENATE BILL NO 77
"An Act relating to civil actions by municipalities and certain
public corporations and prohibiting certain civil actions by them
against firearms or ammunition manufacturers and dealers."
-MOVED CSSB 77(JUD) OUT OF COMMITTEE
SENATE BILL NO. 96
"An Act relating to access to criminal history records and to
revocation of or failure to renew certain licenses based on
criminal conduct or alleged criminal conduct; and providing for an
effective date."
-HEARD AND HELD
SENATE BILL NO. 100
"An Act relating to the payment by indigent persons for legal
services and related costs."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 1 - No previous action to report
SB 77 - See Judiciary Committee minutes dated 3-12-1999
SB 96 - No previous action to report
SB 100 - No previous action to report
WITNESS REGISTER
Ms. Diane Wendlandt, Supervisor
Collections Unit
Department of Law
1031 West 4th Ave ste. 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Testified on SB 100
Ms. Betsy Robson, Assistant Director
Division of Institutions
Department of Corrections
4500 Diplomacy Drive ste. 207
Anchorage, AK 99508-5918
POSITION STATEMENT: Testified on SB 1
Mr. Blair McCune, Deputy Director
Alaska Public Defender Agency
900 West 5th Ave. #200
Anchorage, AK 99501
POSITION STATEMENT: Testified on SB 1
Mr. Bruce Richards, Program Coordinator
Department of Corrections
240 Main Street ste. 700
Juneau, AK 99801
POSITION STATEMENT: Testified on SB 1
Mr. Michael Stark, Assistant Attorney General
Department of Law
PO Box 10300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on SB 1
Ms. Kathy Tibbles, Program Administrator
Division of Family and Youth Services
Department of Health, Education and Social Services
PO Box 110630
Juneau, AK 99811-0630
POSITION STATEMENT: Testified on SB 96
ACTION NARRATIVE
TAPE 99-18, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:44 and announced SB 77 would be the first item up for
consideration.
SB 77-LIABILITY RELATING TO FIREARMS
CHAIRMAN TAYLOR asked MR. VICTOR GUNN, staff to Senator Pete Kelly,
if he had any comments on the proposed committee substitute. He
had none. CHAIRMAN TAYLOR explained the changes made in the
committee substitute. The bill was expanded to limit civil
liability suits by individuals as well as municipalities. The bill
precludes damages or injunctive relief for damage claims arising
from the lawful manufacture or sale of firearms and ammunition. SB
77 does not prohibit civil actions for negligent design, breach of
contract, or breach of warranty.
CHAIRMAN TAYLOR asked for further testimony on the bill. There was
none.
Number 038
SENATOR HALFORD moved the adoption of the committee substitute
(Ford, 3-15-99) in lieu of the original bill. Without objection, it
was so ordered.
SENATOR HALFORD moved the bill from committee with a do pass
recommendation. Without objection, the bill moved from committee
with a do pass recommendation.
SB 100-REIMBURSEMENT FOR PUBLIC DEFENDER
SENATOR DONLEY said he was excited to see this legislation
introduced. In 1995, he drafted a related measure in an attempt to
hold down the costs associated with the Public Defender Agency.
SENATOR DONLEY said one of the reasons Public Defender costs are
high in Alaska is the statutory requirement that a person being
represented by the Public Defender should be provided with the same
level of representation as a person independently retaining an
attorney. SENATOR DONLEY's proposal deleted that provision and
mandated that Public Defenders would be provided "at the level and
to the extent required under the United States Constitution and the
Constitution of the State of Alaska."
Number 099
MR. DOUG WOOLIVER, representing the Alaska Court System, thanked
the committee for introducing the bill that requires all criminal
defendants to pay a portion of the state-funded representation they
receive. Currently, only those convicted of crimes are required to
repay this cost; SB 100 would expand the payment requirement to all
people who receive state-funded representation. This change was
suggested by an audit conducted by Legislative Budget and Audit.
MR. WOOLIVER said this bill treats indigents more like non-
indigents. According to a schedule set out in statute, indigents
pay only a portion of the actual cost associated with their
representation. In cases of economic hardship, the court can defer
or remit these costs and, therefore, the bill will not drive
indigent people further into poverty. The bill would make those who
can, pay a portion of their costs.
Number 155
SENATOR TORGERSON asked if the court takes into account the
Permanent Fund Dividend (PFD). MR. WOOLIVER replied it does, and
can even order defendants to apply for a PFD.
SENATOR TORGERSON asked what happens if a person fails to apply for
their PFD even after a court order. MR. WOOLIVER replied the person
is held in contempt of court.
SENATOR HALFORD asked why the bill allows a judge to stay
enforcement of a (monetary) judgement during the appellate process.
CHAIRMAN TAYLOR replied this law probably was already in place,
along with the requirement that only those persons convicted had to
pay part of their costs. He no longer sees a reason to have this in
the bill. MR. WOOLIVER agreed.
Number 215
SENATOR HALFORD moved as Amendment #1 to delete the sentence on
line 7 that reads:
"Enforcement of a judgement under this subsection may be
stayed by the trial court or the appellate court during
the pendency of an appeal of the person's conviction."
Without objection, Amendment #1 passed.
SENATOR DONLEY asked MR. WOOLIVER how often the court fails to
enter a judgement against people who use Public Defender services.
MR. WOOLIVER was not sure. SENATOR DONLEY said he would like a
judgement entered in every case. If a person can show economic
hardship, the court could then reduce or stay the judgement.
Number 242
SENATOR DONLEY moved as Amendment #2 to replace the word "may" on
page 1, line 5 with the word "shall." Without objection, Amendment
MR. WOOLIVER said he thinks the discretion offered by the word
"may" is not commonly exercised. SENATOR DONLEY remarked that was
good, and this change makes the statute more consistent with the
court rule.
MS. DIANE WENDLANDT, supervisor of the collections unit of the
Department of Law, commented on the fiscal aspect of the bill. She
answered SENATOR DONLEY's earlier question by testifying that
judgements are ordered in approximately 51% of convicted cases. The
fiscal note is based on fees assessed on an additional 2,300 cases
and equals approximately $224,000 in revenue. However, under SB
100, the waiver rate for judgements may increase. The cost to
implement the bill is estimated at $26,000. She said her office
also deals with remands (refunds), when they are ordered by the
court.
CHAIRMAN TAYLOR asked why the court would ever refund money under
the new form of the bill that requires payment from all. MS.
WENDLANDT replied the court sometimes refunds money taken from a
PFD and, "We're in a position where we do what the court tells us
. . . "
SENATOR HALFORD suggested the committee make that provision more
clear. CHAIRMAN TAYLOR remarked, "They've already got the entire
exemption statute . . . you have to have someone earning $38,000 or
40-some-thousand a year before you can execute on them . . . "
Number 342
SENATOR TORGERSON suggested changing the word "shall," on page 1,
line 9 and line 11, to "may." He moved this change as Amendment #3.
Without objection, Amendment #3 was adopted.
SENATOR TORGERSON asked if this would require a court rule change.
MR. WOOLIVER said the court rules applicable to this provision are
substantive, not procedural, and only reflect the statute.
Number 398
SENATOR HALFORD suggested strengthening the wording in line 13. As
Amendment #4, he moved to insert the word "only" to page 1, line
13, before the phrase "the unpaid portion . . . " Without
objection, Amendment #4 was adopted.
CHAIRMAN TAYLOR moved Amendment #5: place a period at the word
"judgement" on page 1, line 13, and delete through the phrase
"immediate family" on page 2, line 1. Without objection, Amendment
Number 420
SENATOR DONLEY explained an old piece of legislation he had drafted
in 1995 that eliminates the current standard of providing a public
defender "to the same extent as a person retaining an attorney is
entitled." He said this standard has been used in cases to provide
multiple public defenders for one individual. This amendment would
eliminate that language in the current law and replace it with a
standard requiring "what is required by the U.S. Constitution and
the State Constitution." He moved as Amendment #6 the incorporation
of his old legislation, marked 9-LS1072\A, into SB 100 to achieve
that goal. He noted the change may require the use of the more
general title of the old legislation. Without objection, Amendment
SENATOR HALFORD commented that he is aware of a judge in one
community who appoints counsel for people because there is no
private attorney in town. He wondered if this could be "cured" in
this bill. SENATOR DONLEY predicted there might never be private
counsel in this community since people are being represented for
free. CHAIRMAN TAYLOR said the question is really the definition of
the word "indigent." He thought, depending on the magnitude of the
case, most people could be considered indigent. SENATOR HALFORD
added that even a certain Anchorage developer with a tremendous
cash flow could prove he was indigent.
Number 465
CHAIRMAN TAYLOR announced a committee substitute for SB 100 would
be before the committee Wednesday. SENATOR HALFORD said he would
appreciate any refinement of the definition of indigent possible.
MR. WOOLIVER noted that the court has just adopted several changes
regarding the indigence standard, suggested in the recent
Legislative Budget and Audit review. He suggested the committee
look at those changes that attempt to standardize the appointment
of public defenders.
MR. WOOLIVER explained that if a person is found not to be
indigent, they can either drop the public defender or retain them
at full price (not the Rule 39 schedule fee).
Number 490
SENATOR TORGERSON asked who sets and adjusts the fees under Rule 39
and if the fees include an area cost differential. MR. WOOLIVER
replied it is currently a flat rate and he is not certain when it
was last adjusted. He stated he would inform the committee after
researching the question.
SB 1-NO MANDATORY PAROLE RELEASE WITHOUT GED
SENATOR DONLEY said everyone is concerned with recidivism and we
all want people who come out of prison to try to avoid future
crimes. He said he has read articles that cite illiteracy as one of
the biggest factors fueling juvenile crime. SB 1 will encourage
rehabilitation and reformation, as dictated in the constitution, by
making good time contingent on prisoners attaining certain
educational requirements. This means while people are incarcerated
they will obtain their General Education Degree (GED).
SENATOR DONLEY said
SB 1 is not a new idea and is in place to varying degrees in
Florida, California, Colorado, Tennessee, Virginia and Texas. He
said the committee substitute for SB 1 incorporates a suggestion
made by the Department of Corrections that applies the bill only to
prisoners who are to be incarcerated for two or more years.
Number 545
SENATOR DONLEY moved CSSB 1 (JUD). Without objection, the committee
substitute was adopted.
CHAIRMAN TAYLOR asked why non-eligibility for prisoners sentenced
to 99 years is deleted in the committee substitute. MR. JAMES
ARMSTRONG, staff to SENATOR DONLEY, replied that that provision is
"picked up in Section 4."
SENATOR HALFORD agreed with the idea behind the bill, but expressed
concern about how the bill might apply to older village Alaskans to
whom English may be a second language, and who might have a hard
time attaining these educational requirements. He said natives are
now proportionally "out of whack" in the correctional system and he
does not want to make that worse. SENATOR DONLEY pointed out the
clause in the bill that made the requirement inapplicable to anyone
"incapable of attaining a diploma or its equivalent." SENATOR
HALFORD replied, "I'm uneasy with stating that those people who may
be smarter than the rest of us in a lot of unquantifiable ways are
incapable - that's a hard statement . . . I don't want to state
there is any inability . . . " SENATOR DONLEY suggested an "extreme
hardship" standard and SENATOR HALFORD replied, "Well, for some of
these people, they deal with extreme hardship all their lives,
except when they're in the prison system." SENATOR DONLEY concluded
by saying he is open to addressing this issue.
Number 575
SENATOR TORGERSON asked if the State administers the GED test in
languages other than English. MS. BETSY ROBSON testified from
Anchorage via teleconference that the GED is now administered only
in English. SENATOR TORGERSON said, "I don't agree with SENATOR
HALFORD's comments . . . I can't believe that is the only document
that we haven't transmitted into another language when we do
everything else."
TAPE 99-18, Side B
Number 591
MS. ROBSON, representing the Department of Corrections, said the
bill is based on a good concept, but she has some concerns about
program applications and financial considerations. Specifically, to
implement the bill, the Department would have to identify the
inmates who need to complete the program, give them a screening
test to determine their educational level, determine which inmates
may have special educational needs, organize study groups, and
withhold parole for those inmates who do not achieve the required
educational goal.
CHAIRMAN TAYLOR asked if a part of the Department's budget is
already allocated for educational programs for inmates. MS. ROBSON
said a small portion is, but this program would require additional
funding.
CHAIRMAN TAYLOR remarked that a significant amount of money comes
from prisoners and is conveyed to the Violent Crimes Commission and
used for educational programs for prisoners. SENATOR DONLEY said
some of this money is allocated for "gate money" and some goes to
inmate programs.
Number 548
MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency,
questioned whether a public defender would be required to represent
inmates in a parole board hearing resulting from their failure to
complete the GED program. He asked who would determine which
inmates are incapable of achieving the GED. He wondered how the GED
program would fit with other inmate programs such as substance
abuse education and sex offender treatment.
MR. MCCUNE said currently, prisoners have their needs assessed by
an institutional probation officer who identifies their needs and
places them into the proper programs. He worries that the GED
program might take a backseat to a more pressing need such as a
substance abuse program.
SENATOR DONLEY asked MR. MCCUNE if it was a statutory requirement
to have a public defender represent prisoners at parole hearings.
MR. MCCUNE said it is. SENATOR DONLEY asked if it is a
constitutional requirement. MR. MCCUNE explained he believes there
is a case to require representation, at least in the adjudicatory
portion of parole revocation hearings. He said he would research
this and inform the committee of his findings. CHAIRMAN TAYLOR said
it seemed plausible that representation would be required in
revocation hearings, but he did not think it would be necessary at
all parole board hearings.
Number 494
MS. ROBSON pointed out the sharp increase in the funding necessary
in fiscal year 2003 (FY 2003). This is due to the increase in time
of incarceration for those inmates who fail to attain their GED.
She is concerned that this type of punitive measure is inconsistent
with the intent to positively motivate offenders to participate in
programs. Many states look toward positive incentives, rather than
sanctions. She urged the committee to consider this and suggested
this approach might reduce the fiscal note and have a more positive
effect on inmates. SENATOR DONLEY responded that if we shared the
national standard for good time, that would be a viable option.
Since we have the most permissive good time standard, it is not.
Number 465
MR. BRUCE RICHARDS, also representing the Department of
Corrections, explained that other states like Florida, have
meritorious GED and literacy programs. He says the Department
expects some inmates will fail to complete the GED program, for
educational or disciplinary reasons, and that is the reason for the
fiscal note.
CHAIRMAN TAYLOR commented that, in his experience as a judge, a
court order to complete a GED program was always obeyed.
MR. MICHAEL STARK, representing the Department of Law, made the
point that those inmates who are not released on parole will "go
cold turkey into the community - no supervision . . . we can't
underestimate the value of parole and probation supervision to help
somebody reintegrate into society after they've done a number of
years in prison."
MR. STARK noted that voters passed an "official English" initiative
so he does not know if the test could be administered in other
languages. Also, some native languages are primarily verbal
languages and would not adapt well to the written GED test. He said
a meritorious incentive program might address SENATOR HALFORD's
concern to the extent that inmates who do not attain the GED would
not be penalized.
MR. STARK suggested amending the statute to ensure the program
would be made available to inmates before they can be required to
participate in it.
MR. STARK said the bill raises some due process concerns and
regulations and procedures will need to be developed to deal with
challenges to an inmate's capability to attain a GED. CHAIRMAN
TAYLOR, in reference to the fiscal note submitted, remarked,
"Somebody within the Department has already made some significant
assumptions about how many people are going to be incapable or
refuse to do it . . ."
Number 392
SENATOR HALFORD said the question of penalties or incentives is one
of semantics and his concern could be addressed by requiring a GED
or "an increase in whatever . . . they start from. I don't want to
see us create something that is another screen that keeps more
Alaska natives in and lets more nonnatives out."
CHAIRMAN TAYLOR announced the bill would be held for work in the
Judiciary Committee.
SB 96-ACCESS TO CRIMINAL HISTORY RECORDS
CHAIRMAN TAYLOR explained, "This is the revisor's bill, revised."
He said the committee's concern was that the offenses in the bill
would not include "attempted mooning." He noted the definition in
the bill does include domestic violence, a charge that he believes
is sometimes abused.
Number 350
SENATOR ELLIS asked how the bill's 5-day review requirement for
reimbursement billings is enforced. MS. KATHY TIBBLES said these
requests, when submitted by other entities are easily reviewed and
returned. However, she said, there is not a good mechanism in place
to review and return claims from private providers in villages.
Number 328
CHAIRMAN TAYLOR said the 5-day requirement is existing law. MS.
TIBBLES agreed and said the only change under SB 96 is the extent
of review the Department is required to conduct.
SENATOR ELLIS asked if the committee had received input on the bill
from the Division of Occupational Licencing. CHAIRMAN TAYLOR had
not seen any and agreed he would also like to hear from them.
SENATOR ELLIS commented this bill could have a major impact on
someone's life if a mistake is made.
Number 298
SENATOR HALFORD asked why, under this bill, a license could still
be revoked for a conviction, indictment or presentment of a crime.
He asked why a charge or presentment (without a conviction) would
impair a person. He said this seems to be a serious violation of
civil rights. CHAIRMAN TAYLOR agreed.
SENATOR HALFORD said he understands why a person's rights could be
taken away temporarily while they are under indictment. CHAIRMAN
TAYLOR said this bill precludes licensure of anyone who has been
charged of any crime covered under the bill within a 10-year
period, even if they are found not guilty. CHAIRMAN TAYLOR
explained this is existing law, though he thinks it cannot be
enforced. SENATOR HALFORD added, "It certainly shouldn't be."
Number 273
MS. TIBBLES said the regulations that the Department has developed
have more to do with convictions than charges. CHAIRMAN TAYLOR said
the committee will look at the bill further and work on the issues
raised.
With no further business to come before the committee, CHAIRMAN
TAYLOR adjourned the meeting at 3:05 p.m.
| Document Name | Date/Time | Subjects |
|---|