Legislature(2015 - 2016)BUTROVICH 205
03/02/2015 01:00 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing Lieutenant Governor Successor | |
| SB49 | |
| SB5 | |
| SB41 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 5 | TELECONFERENCED | |
| += | SB 41 | TELECONFERENCED | |
| += | SB 49 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 5-RESTITUTION: PROPERTY AND INCOME LOSS
1:34:35 PM
CHAIR MCGUIRE announced the consideration of SB 5. "An Act
relating to loss of income and valuing property for orders of
restitution."
1:35:15 PM
SENATOR PETER MICCICHE, Sponsor of SB 5, explained that the
legislation is about rising property theft crime and restoring
crime victims to a pre-offense condition. The bill clarifies for
the courts that the public policy favors requiring criminals to
compensate their victims for their loss, including loss of
income. He related a story from his district. During the busiest
time of year someone attacked the truck of a small family-owned
business to get the copper wire. Although the value of the crime
was relatively low, the family was out of business for weeks and
lost many jobs. He noted that the bill also addresses the
appellate court decision in Welsh vs. State of Alaska that
overruled a lower court decision awarding market value of
restitution to a victim of property theft, because it
represented unjust enrichment of the crime victim. He said he
believes that perpetrators have basic rights but he has a
tendency to put the rights of the victim above the rights of the
perpetrator.
1:38:03 PM
CHUCK KOPP, Staff, Senator Peter Micciche, stated that SB 5
essentially does four things: 1) it amends Alaska's restitution
statutes and directs the courts to take into account the public
policy consideration that favors requiring offenders to
compensate victims for damages and injury, including the loss of
income; 2) it provides a definition from the criminal statutes
for loss of income as the total loss of income a business or
person suffers up to the time that a replacement is obtained; 3)
it gives direction to the courts in making determinations of
loss or damage for restitution to value the property as the
market value of the property; and 4) it amends AS 12.55.100 to
reconcile the standard of probation with the standard of
sentencing in AS 12.55.045.
1:41:42 PM
SENATOR WIELECHOWSKI asked if this affects the amount of
payments that would have to be made by the Violent Crimes
Compensation Board.
MR. KOPP replied he didn't believe so because the board's
statutory direction to make people whole is entirely different
than the restitution statutes. The guidelines are different for
establishing awards.
SENATOR COGHILL asked if the bill takes into consideration
situations like a frozen building that results from vandalism
and it's down for a month and a half.
MR. KOPP confirmed that the restitution statute AS 12.55.100
does look at the value of goods and services.
SENATOR WIELECHOWSKI posed a hypothetical of kids lighting a
fire and destroying a fishing boat. He asked if the owner would
be compensated for the loss of income and the replacement of the
boat.
MR. KOPP replied the current law covers actual damage or injury
which would cover the loss of the boat. The bill asks the court
to take the loss of fishing income into account as well.
SENATOR WIELECHOWSKI asked to whom and how much the perpetrator
would pay back if much of the loss was covered by the
fisherman's insurance.
MR. KOPP said he is a fisherman and his policy would cover the
loss of the boat, but not the loss of income.
1:45:26 PM
CHAIR MCGUIRE offered her belief that income would be covered
for a business that carried professional insurance.
SENATOR MICCICHE reminded the committee that the goal of the
bill is to make the person whole and make the perpetrator
responsible for his/her actions. The goal is the same whether or
not the insurance pays first and the perpetrator is on a payment
plan afterward.
1:46:06 PM
QUINLAN STEINER, Director, Public Defender Agency, offered to
answer questions.
SENATOR WIELECHOWSKI asked what the courts are doing now
regarding restitution and how it might change with this law.
MR. STEINER explained that when restitution is ordered it
typically becomes part of the judgement for the criminal case.
If the person doesn't pay or doesn't attempt to pay it could
impact their supervision if the crime is a felony. When the
restitution order is large repayment becomes difficult to
impossible, and if the person doesn't pay after probation lapses
it's something that businesses or individuals could pursue
civilly.
SENATOR WIELECHOWSKI asked how judges look at this when people
can't make payments.
MR. STEINER said if somebody has no work and no money they're
unlikely to be imprisoned for that alone, but it can happen if
they're not making payments. Also, it could impact somebody's
ability to get a suspended imposition of sentence (SIS) if
they're ordered to pay restitution and they're unable to do
that.
SENATOR WIELECHOWSKI asked his perspective on whether or not
this legislation will result in a lot of people being returned
to jail.
MR. STEINER opined that the bill doesn't materially alter the
present structure with the exception of the discussion of the
difference between the retail value and the market value of the
property. Typically, stolen items are dealt with at the market
value, but under the bill the loss of income arguably could be
used to make up the difference. The downside, he said, is the
potential for more litigation. He added that he believes there
is a misconception about the basis for the Welsh case, because
it didn't stand for the proposition that stolen property is
valued at wholesale.
1:51:47 PM
SENATOR WIELECHOWSKI asked if these cases would require
additional court resources.
MR. STEINER said it depends on the complexity of the case, what
is damaged and the litigation associated with the loss of
income.
SENATOR WIELECHOWSKI asked if loss of income expands to the crew
on a fishing boat that was destroyed.
MR. STEINER replied that is a possibility. The crew could argue
they're victims of the crime if they're unable to participate in
an opening and could potentially receive a restitution order.
SENATOR COGHILL asked if a court might put off judgment until it
made a determination about the income loss or if the court
already deals with that sort of timeframe issue.
MR. STEINER asked for clarification of the question.
SENATOR COGHILL replied he's referring to the cost of
replacement within a reasonable time in the new subsection (o)
in Section 3 and the total loss of income referenced in
paragraph (2) of Section 2.
SENATOR MICCICHE reiterated that the bill asks the courts to
consider loss of income, realizing that the decision will not be
the same in every case. As sponsor, he feels that perpetrators
should be responsible for the item as well as the damage
inflicted on the victim. The bill allows that to be considered
in court.
SENATOR COGHILL restated his question.
SENATOR MICCICHE responded that the bill isn't designed to
create indentured servitude. The idea is that the perpetrator
should be responsible for restitution to the extent possible and
in a reasonable period of time.
CHAIR MCGUIRE observed that the plain language of the bill
allows for judicial discretion.
1:58:54 PM
MR. KOPP told Senator Coghill that the language regarding cost
of replacement in a reasonable period of time was lifted from
the determinations of value in criminal law in AS 11.46.980.
SENATOR WIELECHOWSKI asked what sort of discretion the court
will have when page 1, lines 14-15, page 2, line 16, and page 2,
line 28, all talk about what the court shall do.
MR. STEINER explained that the courts don't deviate from using
market value when assessing theft and damaged items, although
there is discussion about how to determine it for items that are
not sold on a readily available market. He reiterated that the
Welsh case was somewhat confused in the idea that they were
assessing the marked up retail value, which didn't necessarily
relate to its market value. That was discussed in another case
recently when the appellate court reversed a case that valued
the property at more than $500 retail value which made it a
felony. The appellate court held that market value prevailed and
that the value was under $500.
SENATOR WIELECHOWSKI asked if the bill potentially will advance
property crime cases from misdemeanors to felonies.
MR. STEINER said he didn't believe so because the bill deals
with restitution which is different than assessing value in
terms of property damage.
2:02:46 PM
CHRIS NETTLES, representing National Federation Independent
Businesses (NFIB) and President, Geo Tek Alaska, Inc., testified
in support of SB 5. He related a personal experience when a snow
machine was stolen from a job site at the end of the job. If it
had occurred at the beginning of the job, his company would have
suffered the consequences of being down until the machine could
be replaced. He stressed the importance of the courts being able
to consider the total loss a victim suffers in a theft.
2:05:06 PM
CHAIR MCGUIRE announced she would hold SB 5 in committee for
further consideration.