04/11/2017 03:00 PM House HEALTH & SOCIAL SERVICES

          HB 118-COMPENSATION FOR WRONGFUL CONVICTION                                                                       
                                                                                                                                
3:39:18 PM                                                                                                                    
                                                                                                                                
CHAIR SPOHNHOLZ announced  that the next order  of business would                                                               
be  HOUSE BILL  NO. 118,  "An  Act relating  to compensation  for                                                               
wrongful conviction and imprisonment."                                                                                          
                                                                                                                                
3:39:46 PM                                                                                                                    
                                                                                                                                
OLIVIA  GARRETT,  Staff,  Representative Scott  Kawasaki,  Alaska                                                               
State Legislature,  presented proposed  HB 118  on behalf  of the                                                               
bill sponsor,  Representative Kawasaki.   She stated that  HB 118                                                               
would create  an administrative  process so  that those  who were                                                               
wrongfully convicted  of crimes  and subsequently served  time in                                                               
prison would be  able to apply for compensation  for time served.                                                               
She  paraphrased   from  the  Sectional  Analysis   [Included  in                                                               
members' packets], which read:                                                                                                  
                                                                                                                                
     Section 1.  Amends AS 44.29.20  by adding  a subsection                                                                  
     that  directs  the  Department  of  Health  and  Social                                                                    
     Services  to establish  a  re-entry  program to  assist                                                                    
     wrongfully  convicted   persons  in   obtaining  mental                                                                    
     health   services,   including  treatment   for   post-                                                                    
     traumatic stress disorder.                                                                                                 
                                                                                                                                
     Section 2.  Provides that every claim  of reimbursement                                                                  
     for  wrongful  conviction  and  imprisonment  shall  be                                                                    
     promptly  presented to  the appropriate  administrative                                                                    
     or  executive officer  of a  department  or branch  for                                                                    
     approval or payment.                                                                                                       
                                                                                                                                
     Section 3.                                                                                                               
                                                                                                                                
     (a) Establishes  that a person  must file a  claim with                                                                    
     the attorney general to  receive compensation, and must                                                                    
     show by  preponderance of the  evidence that  they were                                                                    
     convicted of  one or  more offenses  and served  any or                                                                    
     all of the resulting sentence and:                                                                                         
                                                                                                                                
     (1) either  the conviction  for the  resulting sentence                                                                    
     was  vacated or  reversed  and the  charges were  later                                                                    
     dismissed  or  the person  was  retried  and found  not                                                                    
     guilty, or the person was pardoned.                                                                                        
                                                                                                                                
     (2)  the person  did not  commit any  of the  crimes of                                                                    
     which they were convicted,  commit perjury, get another                                                                    
     person  to  commit  perjury or  fabricate  evidence.  A                                                                    
     false confession,  admission, or  guilty plea  does not                                                                    
     entitle   a  person   to   compensation  for   wrongful                                                                    
     conviction.                                                                                                                
                                                                                                                                
     (b) States  that compensation for  wrongful convictions                                                                    
     only extends to the specific  case and does not include                                                                    
     compensation for a concurrent sentence.                                                                                    
                                                                                                                                
     (c) States that  individuals receiving compensation for                                                                    
     wrongful  conviction will  receive $50,000  dollars for                                                                    
     each year  of imprisonment  up to  a lifetime  total of                                                                    
     $2,000,000.                                                                                                                
                                                                                                                                
     (d) States that a  person who has received compensation                                                                    
     for wrongful conviction by the  State of Alaska may not                                                                    
     bring   any   further   action    to   the   state   or                                                                    
     municipalities  regarding the  same subject  matter for                                                                    
     which they have received compensation.                                                                                     
                                                                                                                                
     (e) States  that an  individual must  file a  claim for                                                                    
     compensation  within 2  years after  their exoneration,                                                                    
     however the attorney general  may authorize payment for                                                                    
     a claim  filed past  that time  if they  determine that                                                                    
     there is good cause for delay.                                                                                             
                                                                                                                                
     (f)  Lists  social  services   and  programs  a  person                                                                    
     receiving  compensation  for   wrongful  conviction  is                                                                    
     entitled to.                                                                                                               
                                                                                                                                
     1) Reentry  services as provided  by the  Department of                                                                    
     Health and Social Services under AS 44.29.020.                                                                             
                                                                                                                                
     2) Tuition and fees at  any University of Alaska campus                                                                    
     for themselves  and any  children or  stepchildren ages                                                                    
     17-26.                                                                                                                     
                                                                                                                                
     3)   3  years   of   job   training  services   through                                                                    
     appropriate state programs.                                                                                                
                                                                                                                                
     4) Up to 10 years of state funded healthcare coverage.                                                                     
                                                                                                                                
     5) Economic  damages including lost wages  and attorney                                                                    
     fees.                                                                                                                      
                                                                                                                                
     (g) States  that all  compensation provided  under this                                                                    
     section, except  for awarded  attorney fees,  is exempt                                                                    
     from taxation  and that  it may not  be used  to offset                                                                    
     expenses incurred  by the  state in  providing services                                                                    
     to the person during their imprisonment.                                                                                   
                                                                                                                                
     Section  4.  The  claimant   may  appeal  the  decision                                                                  
     through the  Department of Administration and  they may                                                                    
     obtain  a judicial  review of  the decision.  Amends AS                                                                    
     44.77.040(c) so that  anyone who is denied  a claim for                                                                    
     wrongful  conviction  compensation  is  prevented  from                                                                    
     taking further  action against the  state for  the same                                                                    
     claim.                                                                                                                     
                                                                                                                                
     Section 5.  Claims made  for compensation  for wrongful                                                                  
     convictions  fall under  claims and  appeals procedures                                                                    
     under AS  44.77.010- 44.77.060 even if  a department or                                                                    
     branch   already  has   separate  claims   and  appeals                                                                    
     procedures.                                                                                                                
                                                                                                                                
3:43:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHNSTON  asked  for  the  list  of  states  that                                                               
already had some form of the proposed bill.                                                                                     
                                                                                                                                
MS. GARRETT, in  response, offered her belief that  31 states, as                                                               
well  as   the  District  of  Columbia,   provided  for  wrongful                                                               
conviction compensation.                                                                                                        
                                                                                                                                
REPRESENTATIVE JOHNSTON  asked how this would  integrate into the                                                               
court  system.   She  offered  her belief  that  once a  wrongful                                                               
conviction was recognized by the  courts, it became a legal issue                                                               
for how to  compensate and what was done in  each matter, as part                                                               
of  the  settlement.    She  asked if  the  proposed  bill  would                                                               
supersede any legal discussion.                                                                                                 
                                                                                                                                
MS. GARRETT asked for further clarification.                                                                                    
                                                                                                                                
REPRESENTATIVE JOHNSTON  opined that  there had  been negotiation                                                               
and settlement at the court level.                                                                                              
                                                                                                                                
3:45:45 PM                                                                                                                    
                                                                                                                                
KACI  SCHROEDER,  Assistant   Attorney  General,  Legal  Services                                                               
Section,  Criminal   Division,  Department  of  Law,   asked  for                                                               
clarification of the question.                                                                                                  
                                                                                                                                
REPRESENTATIVE  JOHNSTON  in  response,  questioned  whether  the                                                               
legal process for wrongful conviction  would be superseded by the                                                               
proposed bill,  and she expressed  her concern that  the proposed                                                               
bill was overstepping.                                                                                                          
                                                                                                                                
MS.  SCHROEDER stated  that the  department did  not see  this as                                                               
limiting anything in the settlement context.                                                                                    
                                                                                                                                
3:47:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHNSTON  asked if,  in  other  states with  this                                                               
legislation,  had  this  decreased   the  state's  liability  for                                                               
wrongful convictions.                                                                                                           
                                                                                                                                
MS. GARRETT  replied that  she did not  have the  information but                                                               
that she would provide it to the members.                                                                                       
                                                                                                                                
3:48:31 PM                                                                                                                    
                                                                                                                                
BARBARA BRINK,  Alaska Innocence  Project, stated her  support of                                                               
the proposed  bill.   She shared  her background  as a  state and                                                               
federal  public defender  for more  than  30 years,  representing                                                               
indigent people who were accused of  crimes and then tried in the                                                               
state and federal  courts.  She offered her belief,  in review of                                                               
compensation  statutes in  other states,  that the  proposed bill                                                               
had taken  "the best bits that  other states have tried,  and not                                                               
taken the parts  that haven't been successful."   She opined that                                                               
32 states and  the federal government "already try  to make whole                                                               
those  who have  been  wrongfully convicted  and then  exonerated                                                               
with their own compensation statutes."   She pointed out that the                                                               
proposed  bill would  fill a  recognized  need for  Alaska.   She                                                               
stated that  the proposal to  provide a reentry  service program,                                                               
assist with  job training  and skills, tuition  and fees,  and 10                                                               
years of  health insurance were  especially needed when  a person                                                               
was released from  custody after a long  period of incarceration.                                                               
She  noted  that  these  people  had  lost  touch  with  societal                                                               
expectations,  pointing  out  how  difficult this  could  be  for                                                               
someone.  She  reported that the annual  $50,000 compensation was                                                               
in the  "middle of the  pack of what other  jurisdictions provide                                                               
for the  wrongfully convicted."   She offered some  examples from                                                               
California, Texas, and  Colorado.  She reported  that the federal                                                               
government  paid  $50,000 for  each  year  of incarceration,  and                                                               
$100,000 for  each year if  someone had been  on death row.   She                                                               
added that  most states  allowed for  inflation adjustment.   She                                                               
offered  her  belief  that  it  was  beneficial  to  have  public                                                               
recognition by  the government for  the harm inflicted  on people                                                               
who  were wrongfully  convicted.   She stated  that the  proposed                                                               
bill was  an assurance  to the public  that the  state government                                                               
would  take ownership  of  the  errors, and  that  the state  was                                                               
working to ensure  the integrity of the  criminal justice system.                                                               
She  opined that  this  was good  for  the state,  as  it was  an                                                               
exclusive  remedy,  comparing  it to  the  workers'  compensation                                                               
statute.   She pointed out  that this could reduce  the liability                                                               
for a state  as it would no longer be  bombarded by lawsuits from                                                               
those  who  had  been  exonerated.   She  reported  that  it  was                                                               
estimated that  between 8  and 12 percent  of individuals  in the                                                               
criminal  justice  system had  been  wrongfully  convicted.   She                                                               
stated  that this  was a  uniform, fair,  equitable procedure  to                                                               
allow for some compensation for the wrong that had been done.                                                                   
                                                                                                                                
3:53:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE TARR asked for other examples of cases.                                                                          
                                                                                                                                
MS. BRINK  replied that the  Fairbanks 4  case was the  only case                                                               
the  Innocence Project  had obtained  in Alaska  for exoneration.                                                               
She   noted  that   the  appellate   process  could   also  bring                                                               
exoneration,  although she  had  no records  for  the numbers  of                                                               
cases each year.                                                                                                                
                                                                                                                                
3:54:56 PM                                                                                                                    
                                                                                                                                
CHAIR SPOHNHOLZ  shared that the proposed  bill simplified things                                                               
from the state  perspective as it allowed exact  knowledge of the                                                               
promises to those wrongfully convicted.   She asked if there were                                                               
any specific elements  which were key to  ensure people's success                                                               
to get over the trauma for loss of freedom as they move forward.                                                                
                                                                                                                                
3:56:02 PM                                                                                                                    
                                                                                                                                
MS. BRINK, in response, said  that the first provision to provide                                                               
assistance through  the Department of Health  and Social Services                                                               
was one  that many states  had neglected to include,  noting that                                                               
even  financial   compensation  did  not  guarantee   success  to                                                               
exonerees.   She offered  her belief that  the proposed  bill did                                                               
well in  setting forth  the grounds  that would  show exoneration                                                               
and what would  not demonstrate exclusion.  She  lauded Section 3                                                               
which  covered all  the  issues  which had  gone  wrong in  other                                                               
states.                                                                                                                         
                                                                                                                                
3:57:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHNSTON  asked  about the  indeterminate  fiscal                                                               
note,  and  she  asked  about   the  payments  made  outside  the                                                               
Department of Law's operating appropriation.   She asked what the                                                               
source of funds would be.                                                                                                       
                                                                                                                                
3:58:33 PM                                                                                                                    
                                                                                                                                
MS.  SCHROEDER, in  response, explained  that this  would clarify                                                               
that  the payments  would not  come  from the  Department of  Law                                                               
budget;  although  the  settlement  negotiations  and  subsequent                                                               
settlements would  appear as  a budget  request from  the general                                                               
fund.                                                                                                                           
                                                                                                                                
3:59:34 PM                                                                                                                    
                                                                                                                                
DON  HABEGER, Community  Coordinator,  Juneau Reentry  Coalition,                                                               
referred  to  a  pamphlet  [Included  in  members'  packets]  and                                                               
explained that  the Juneau Reentry Coalition  was a collaboration                                                               
of  individuals,  community  stakeholders,  public  and  not  for                                                               
profit  agencies,  and  faith-based business  partners  who  were                                                               
united  in commitment  to  reduce  recidivism among  ex-offenders                                                               
returning  to the  community of  Juneau.   He  reported that  the                                                               
coalition was a  small group effort that got started  in 2013 and                                                               
grew  into  a  larger  effort with  a  steering  team,  community                                                               
membership,  and eight  different work  groups, which  he listed.                                                               
When the  work group  reports come back  to the  coalition, there                                                               
was  work to  resolve these  issues.   He  mentioned the  current                                                               
partnerships with  the Alaska Mental Health  Trust Authority, the                                                               
Department  of  Corrections, and  the  Department  of Health  and                                                               
Social Services.   He  noted that  these partnerships  included a                                                               
re-entry  case  manager  from Department  of  Health  and  Social                                                               
Services who  worked with Department of  Corrections, utilizing a                                                               
pre-release form for  work on all the issues  and services needed                                                               
to  enter the  community successfully.   He  reported that,  upon                                                               
release,  a plan  for securing  resources and  successful use  of                                                               
supports and treatments was put into place.                                                                                     
                                                                                                                                
4:05:28 PM                                                                                                                    
                                                                                                                                
DIANE  CASTO,  Behavioral  Health  Policy  Advisor,  Division  of                                                               
Behavioral  Health, Department  of  Health  and Social  Services,                                                               
expressed support for  the proposed bill, and  explained that the                                                               
proposed  bill  mentioned the  Department  of  Health and  Social                                                               
Services  for mental  health  services, including  post-traumatic                                                               
stress  disorders,  and  for re-entry  services.    She  directed                                                               
attention  to  the  10  years  of state  funded  coverage.    She                                                               
reported that  re-entry work  was already  in progress,  and that                                                               
Medicaid  Expansion   had  provided   coverage  for   almost  all                                                               
individuals  leaving  the  correctional system,  offering  mental                                                               
health services and Medicaid services.   She noted that there was                                                               
a  re-entry  center  in  Anchorage   for  partners,  as  well  as                                                               
coalitions in Fairbanks,  Matanuska-Susitna, Juneau, Kenai, Nome,                                                               
and Anchorage.  She added  that there was active solicitation for                                                               
three additional communities,  which included Dillingham, Bethel,                                                               
and Ketchikan.  She explained  that these coalitions were a group                                                               
of people, services,  and agencies in the  community committed to                                                               
doing  this  work and  ensuring  that  individuals had  the  best                                                               
opportunity  possible when  leaving  a correctional  institution.                                                               
She  listed   jobs,  housing,  and   treatment  as   the  highest                                                               
priorities for individuals.                                                                                                     
                                                                                                                                
MS.  CASTO moved  on to  discuss  the proposal  for state  funded                                                               
health coverage  for 10  years and offered  her belief  that this                                                               
had to be equivalent to  medical assistance services available in                                                               
AS 47.07.030,  the Medicaid program.   She  offered clarification                                                               
for  what was  currently doable  and  what might  be doable  even                                                               
though it  had not  yet been  fully examined.   She  relayed that                                                               
most individuals covered  by the proposed bill  would be Medicaid                                                               
eligible, as the compensation would  be tax deductible and "would                                                               
not count  against this individual being  eligible for Medicaid."                                                               
This  would allow  for immediate  enrollment,  with coverage  for                                                               
treatment  and  health care  services.    She explained  that  it                                                               
became  more complicated  as they  began to  make more  money, as                                                               
they would move  out of the eligibility range for  Medicaid.  She                                                               
pointed  out that  it would  become necessary  to determine  what                                                               
kind of  insurance coverage  was intended  in the  proposed bill.                                                               
She  offered  the  possibility for  the  Division  of  Insurance,                                                               
(Department   of  Administration),   to   purchase  health   care                                                               
equivalent  to  Medicaid.    She  suggested  that  a  state  only                                                               
Medicaid funded program, solely for  this use which would not use                                                               
federal money, could be set up.   She declared a need for this to                                                               
be further examined  so that the Department of  Health and Social                                                               
Services (DHSS) was clear for  its responsibilities.  She pointed                                                               
out that DHSS did not offer any insurance other than Medicaid.                                                                  
                                                                                                                                
4:14:12 PM                                                                                                                    
                                                                                                                                
CHAIR SPOHNHOLZ announced that HB 118 would be held over.