Legislature(2017 - 2018)GRUENBERG 120
02/28/2017 05:30 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB91 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 91 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
HB 127-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD
5:41:46 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be HOUSE BILL NO. 127, "An Act relating to a permanent
fund dividend for an individual whose conviction has been
vacated, reversed, or dismissed; and relating to the calculation
of the value of the permanent fund dividend by including payment
to individuals eligible for a permanent fund dividend because of
a conviction that has been vacated, reversed, or dismissed."
5:42:15 PM
REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, as
prime sponsor of HB 127, paraphrased from the sponsor statement,
which read as follows [original punctuation provided]:
The State of Alaska Department of Law Criminal
Division's mission is to "assure safe and healthy
communities by prosecuting and convicting criminal
offenders throughout Alaska." Likewise, the State has
a responsibility to ensure those convicted of crimes
are prosecuted fairly and with due justice, and in the
event of wrongful convictions, compensate those who
have faced such an injustice.
Incarcerated Alaskans forgo their Permanent Fund
Dividends [PFD] to the State. HB 127 seeks to pay
Permanent Fund Dividends to Alaskans whose convictions
were vacated, reversed or dismissed. If passed, those
eligible must apply for the PFD within 120 days
following the new judgment or within 120 days of the
effective date of the bill. Currently, this bill would
help 4 Alaskans who were victims of wrongful
conviction at a total cost of $103,450.96 in owed
PFDs.
The PFD is a defining characteristic of what it means
to be an Alaskan. Providing the PFD to those Alaskans
who have wrongfully had their liberties taken away
from them is one of the few things the State of Alaska
can do to help them reestablish a normal life in
providing means to find housing, food and education.
A wrongful conviction is a true tragedy. The
transition back to civilian life for these individuals
can be difficult due to the loss of time with loved
ones, let alone the loss of income otherwise earned. I
ask your support for this bill that would help victims
of injustice with their transition back into society
as the State looks to ensure that the criminal justice
system is ever more thorough and fair.
5:45:01 PM
WILLIAM JODWALIS, Staff, Representative Scott Kawasaki, Alaska
State Legislature, stated that the intent of HB 127 is to
reimburse wrongfully convicted individuals with the permanent
fund dividend (PFD) that they would have acquired had they not
been incarcerated and to include such compensation into the
calculation process of the PFD.
MR. JODWALIS relayed that currently under AS 43.23.005(d), a
person cannot receive his/her PFD if during the qualifying year:
the individual was sentenced because of conviction in the state
of a felony; was incarcerated for all or part of the year as a
class A felon; or received a misdemeanor after a prior felony
conviction or two or more prior misdemeanor convictions.
MR. JODWALIS paraphrased from the sectional analysis, which read
as follows [original punctuation provided]:
Section 1
(i) Establishes that individuals whose
convictions have been vacated or reversed and
either dismissed or retried and found not
guilty are eligible to receive the permanent
fund dividend for each year the individual was
ineligible while incarcerated
(j) Sets the time frame for individuals being
able to apply for permanent fund dividend
compensation at no later than within 120
days after a dismissal or not guilty finding.
Section 2
Amends AS 43.23.025(a), which involves the calculation
of the annual value for the PFD, under subsection (C)
to include (i) of section 1 of this Bill, which would
factor the compensation of Permanent Fund Dividends
for wrongful convictions into the calculation of the
annual PFD values.
Section 3
Amends uncodified law of the State of Alaska by adding
a new section that states that those who are eligible
for PFD compensation as defined under section 1 of
this bill, yet have had their conviction overturned
before this act takes place, will have 120 days from
its effective date to apply for the PFD.
5:48:01 PM
BILL OBERLY, Executive Director, Alaska Innocence Project
(AKIP), stated that the purpose of HB 127 is to fill a hole in
the PFD statutes by providing eligibility for PFDs to persons
who were wrongfully prevented from applying for the years they
were wrongfully imprisoned. Individuals who have been
exonerated - those whose convictions were vacated or reversed,
those for whom all charges were dismissed, or those found not
guilty at retrial - should be eligible to apply for and receive
each of the PFDs they were denied during their wrongful
incarceration.
MR. OBERLY attested that when an individual is exonerated and
released from prison in Alaska, he/she gets no monetary
assistance and does not receive the services that a guilty
person receives upon release. He said that Alaska has no
compensation law at this time for wrongful convictions, and he
added that 32 states and the District of Columbia all have such
legislation. In 2012, 60 percent of compensation received by
such individuals was through statute, 30 percent through
lawsuit, and 10 percent through special legislation. He said
that with the passage of compensation bills by additional
states, now 81% of compensation is by statute, which makes
lawsuits less likely.
MR. OBERLY maintained that the proposed legislation would not
provide compensation by statute but would address funds directly
taken from individuals because of their wrongful convictions.
He stated that HB 127 applies to the "Fairbanks Four" - four
[wrongly convicted] individuals who were exonerated in December
of 2015. They were released with nothing - no job experience
and no education beyond high school. He cited that Marvin
Roberts, who was valedictorian of his high school class and in
1997 had a promising future, is now delivering pizzas. He
asserted that for these four individuals, the benefit of getting
their PFDs would be immediate and substantial. He stated that
the [PFD] money was wrongfully taken from these individuals as
was 18 years of their lives, and HB 127 would help to correct
this injustice and prevent future PFD denials.
5:52:25 PM
REPRESENTATIVE BIRCH asked if there were any conditions,
provisions, or signed agreements upon release of the Fairbanks
Four precluding litigation or civil recourse.
MR. OBERLY responded that through a signed agreement with the
State of Alaska, the four men agreed not to file suit with the
state for compensation. He emphasized that the agreement only
prohibited them from filing suit, not from receiving
compensation by some other means. He opined that the agreement
does not affect HB 127.
REPRESENTATIVE BIRCH suggested that while not a lawsuit, HB 127
would constitute an active engagement in pursuing financial
remedy. He expressed interest in receiving a copy of the
agreement.
5:55:33 PM
REPRESENTATIVE TUCK said he is surprised that Alaska does not
already have legislation that reverses the harm of withholding
PFDs in the case of wrongful convictions. He mentioned that it
is money that should never have been taken, and without HB 127,
Alaska is imposing more unnecessary harm on innocent people. He
maintained that this compensation is separate from any judicial
action. He expressed his support for Section 3 of HB 127, which
allows other victims of wrongful convictions to be able to apply
for their PFDs.
5:57:01 PM
REPRESENTATIVE JOHNSON asked if there are people other than the
Fairbanks Four who would be affected [by the proposed
legislation].
REPRESENTATIVE KAWASAKI answered that HB 127 has received a
great deal of attention specifically due to the Fairbanks Four
but that the proposed legislation would benefit everyone who has
been incarcerated wrongly. He pointed out that due to DNA
evidence, 2016 has had the largest number of exonerations in the
history of United States, and 20 of the exonerated people were
on death row. He mentioned that despite the best efforts of the
justice system, errors are made, and HB 127 would help to
restore faith in that system.
REPRESENTATIVE JOHNSON asked for the number of people who would
be affected beside the four men mentioned.
REPRESENTATIVE KAWASAKI responded that information is readily
available on some individuals, but for those who have not been
prosecuted, the data is more difficult to obtain. He said that
HB 127 would set up a process whereby a person who was wrongly
convicted - his/her case was vacated, dismissed, or reversed in
court - could apply for the PFDs within 120 days, and a
determination would be made regarding qualification.
REPRESENTATIVE JOHNSON referred to the zero-fiscal note and
expressed a desire to get a sense of the amount of money that
might be involved. She stated that the amount that would be
owed to the Fairbanks Four is $103,450.96. She asked what the
process was to identify other recipients and what the fiscal
note would be.
REPRESENTATIVE KAWASAKI answered that the Department of Revenue
(DOR) sets aside a fund titled, "Reserve for Prior Year Dividend
Liabilities," which is used to pay dividends to Alaskans who
through some extenuating circumstances were not able to file
timely. He said that fund is available for any compensation
potential that exists. Currently the fund is at $233,000, and
it varies from year to year.
REPRESENTATIVE JOHNSON stated that she is concerned about the
lack of information on the fiscal liability of HB 127.
REPRESENTATIVE KAWASAKI responded that his staff could try to
obtain some preliminary estimates.
6:02:29 PM
REPRESENTATIVE LEDOUX asked if everyone who has been convicted
of a felony is denied receiving PFDs only while incarcerated.
REPRESENTATIVE KAWASAKI answered that under AS 43.23.005(d), a
person would be ineligible to receive his/her PFD for the
qualifying year if he/she: had been sentenced because of a
conviction of a felony; was incarcerated for all or part of the
year as a class A felon; or had received a misdemeanor after
having already been convicted of a felony or after having
received two prior misdemeanors.
6:03:58 PM
SARA RACE, Director, Permanent Fund Dividend Division (PFDD),
stated that if some individual falls into one of the categories
specified in AS 43.23.005(d), he/she is ineligible to receive a
PFD. She added that these individuals are not prevented from
applying for a PFD for the qualifying year, and if they do
apply, the statute assists PFDD in making a determination of
eligibility.
REPRESENTATIVE LEDOUX asked whether a person convicted of a
felony or other crime must be incarcerated to be denied a PFD.
MS. RACE answered that if a person is convicted, there may be a
period during which he/she is not incarcerated. In that case
the person would be deemed ineligible for a PFD for that period.
REPRESENTATIVE LEDOUX asked if a person who is convicted and
appeals the conviction is ineligible [to receive the PFD] for
the time spent appealing the conviction, even if not
incarcerated.
MS. RACE responded, "That is correct." She explained further
that for a person whose conviction has been overturned, the
regulations allow 60 days to appeal PFDD's denial of the PFD.
If the denial is appealed, PFDD then contacts the Department of
Corrections (DOC) to determine if the individual falls into one
of the categories stated in AS 43.23.005(d). If so, the denial
would be upheld.
REPRESENTATIVE LEDOUX relayed the scenario of a person who
applied for the PFD while in jail, the PFD was denied, but the
conviction was vacated upon appeal. She asked if, under HB 127,
that person would receive the PFD at the time the conviction was
vacated.
MS. RACE answered that in that scenario, the individual would
most likely contact PFDD to activate the PFD appeal process at
the time the conviction was overturned.
REPRESENTATIVE LEDOUX commented that the person would have had
to apply previously for the PFD and it is unlikely that he/she
would have known to do that.
REPRESENTATIVE LEDOUX opined that the proposed legislation is
entirely different from civil litigation. She stated that the
Fairbanks Four agreed not to engage in civil litigation against
the state for wrongful imprisonment, but HB 127 represents a
political process. She expressed her dismay by how the
Department of Law (DOL) handled the case. She opined that if
someone is innocent, he/she should be released from prison
without being asked to sign an agreement giving up his/her
rights not to sue for wrongful conviction to be released from
prison without the state contesting it. She added that without
litigation, any wrongdoing in the wrongful conviction is not
exposed.
6:09:58 PM
REPRESENTATIVE WOOL agreed with Representative LeDoux. He
mentioned that when the topic of PFD reimbursement came up
regarding the Fairbanks Four, he heard that their PFD money was
used to pay for their incarceration. He asked if, in fact, PFD
money for incarcerated Alaskans is transferred to DOC for
prisoner "room and board."
REPRESENTATIVE KAWASAKI replied that under current law, there is
a crime victim compensation fund into which the PFDs of
incarcerated Alaskans are paid. The fund is administered by the
Violent Crimes Compensation Board and is used for victims of
violent crimes. He added that funds also go to the Alaska
Council of Domestic Violence and Sexual Assault (CDVSA), DOC,
probation programs, the Office of Victims' Rights (OVR), and
non-profit victims' rights organizations by way of designated
grants. He stated there are other statutes that specifically
outline the ways PFDs are garnished for unpaid child support and
unpaid University of Alaska tuition.
REPRESENTATIVE WOOL asked if the PFD money is reallocated for
those who are incarcerated without them applying for it.
MS. RACE responded that PFDD uses a calculated formula based on
information from DOC regarding the number of people incarcerated
for felonies and misdemeanors.
REPRESENTATIVE WOOL asked for confirmation that the state
automatically applies for those people who are incarcerated and
ineligible to receive a PFD.
MS. RACE confirmed that the money is appropriated to DOC.
REPRESENTATIVE WOOL commented that a person in prison does not
have to apply for the PFD for it to be redistributed on his/her
behalf, but if the person's conviction is determined to have
been wrongful, then he/she must apply within a certain
timeframe.
CHAIR KREISS-TOMKINS asked for clarification that for people who
are in jail and not getting PFDs because of the crime they
committed, the PFDD is giving the PFD money to DOC as an
interagency cash transfer.
MS. RACE agreed with that assessment. She offered that the
money is a calculated appropriation to DOC and is not a "one-
for-one."
CHAIR KREISS-TOMKINS asked for an explanation of "calculated" as
opposed to "one-for-one."
MS. RACE responded that DOC provides PFDD with a complex
spreadsheet along with a list of individuals incarcerated or
convicted of a felony or misdemeanor. She said that PFDD uses
the same standard calculation to determine the percentage to be
appropriated to DOC that is used to calculate the amount of the
PFD. This calculation represents the reasonable expectation of
the percentage of people who will be eligible for the PFD upon
application.
6:17:17 PM
REPRESENTATIVE WOOL asked how child support is paid from the PFD
of an incarcerated person owing child support. He enquired if a
garnishment on file with the Alaska Child Support Services
Division (CSSD) would result in continued deductions from the
PFD of that person after imprisonment.
MS. RACE explained that the garnishment process requires a PFD
application to be filed by an eligible applicant. In the
scenario Representative Wool mentioned, the convicted person
would have been deemed ineligible; therefore, the PFD could not
be garnished.
6:19:56 PM
JERRY BURNETT, Deputy Commissioner, Department of Revenue (DOR),
confirmed that the amount of PFD funds appropriated to DOC each
year is a calculated amount based on the number of people
incarcerated. He reiterated that regarding child support
garnishment and student loan garnishment, the incarcerated
person is not eligible for a PFD; therefore, there is nothing to
garnish.
REPRESENTATIVE WOOL asked for confirmation that the incarcerated
person's PFD money is allocated to DOC even though the person is
ineligible for the PFD.
MR. BURNETT confirmed that assessment. He stated that this
appropriation is included among the statutorily allowable
appropriations by the legislature.
REPRESENTATIVE WOOL asked, "If that same number of people that
are in prison - let's say 5,000 ... - if that 5,000 people in
the population just didn't apply one year, then that would
benefit the rest of the people. Their checks would go up by a
little bit ... because there would be less people to disperse it
to. But in this case, it's automatically taken out."
MR. BURNETT answered yes.
6:23:28 PM
REPRESENTATIVE JOHNSON commented that the intent [of HB 127] is
not to retrieve the money from DOC. She asked for confirmation
that there is a fund for "under-claimed or unclaimed" PFDs.
REPRESENTATIVE KAWASAKI stated that there is such a fund - the
Reserve for Prior Year Dividend Liabilities - and it currently
contains about $233,000.
REPRESENTATIVE JOHNSON asked if this is the fund from which the
PFD money would be paid under HB 127.
REPRESENTATIVE KAWASAKI responded yes.
6:24:51 PM
REPRESENTATIVE LEDOUX asked how money gets into the Reserve for
Prior Year Dividend Liabilities.
MR. BURNETT responded that each year when the PFD is calculated,
funds are reserved, because the exact numbers of recipients and
successful appeals are unknown. The reserve funds pay for prior
year appeals and for 18-year-olds whose parents have not
previously applied for them. Reserving this fund reduces the
PFD check by a few cents, and the fund carries forward in future
years. If it is not used, it increases the dividend for the
next year; if it is used, it decreases the dividend for the next
year. He added that under the proposed legislation, PFDs for
the wrongfully convicted would be awarded for each of the years
that they were eligible, if they were an Alaska resident and
applied timely.
REPRESENTATIVE LEDOUX asked whether someone sent to a prison
outside of the state would be considered an Alaska resident.
MR. BURNETT responded that he believed they would because they
would have been in the custody of the State of Alaska during the
period of incarceration.
6:27:53 PM
REPRESENTATIVE WOOL asked why and how a prisoner, who was
ineligible for a PFD, would have applied every year.
MR. BURNETT answered that it is highly unlikely that people
would apply from prison believing they would be ineligible, even
if they were able to file an application.
6:28:42 PM
CHAIR KREISS-TOMKINS announced that HB 127 was held over.