Legislature(1995 - 1996)
05/04/1995 02:45 PM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 167
An Act relating to day fines in certain criminal cases
and release of employment information for use in the
collection of criminal judgments.
Co-chairman Halford directed that SB 167 be brought on for
discussion. CHRIS CHRISTENSEN, General Counsel, Alaska
Court System, came before committee. He explained that last
year the legislature passed law authorizing courts to impose
day fines for certain misdemeanor offenses. Pursuant to
that law, the Supreme Court appointed an 11-member panel to
develop a day-fine plan for implementation. In the course
of developing that plan, problems became apparent. Some of
the problems could be rectified by simple technical
amendments to the original statute. Those changes are
incorporated within SB 167. However, there are other
problems that are more fundamental. While the proposed
legislation does not address these problems, solutions could
be incorporated therein.
The first problem relates to legislative intent in passing
the original law. It is clear from committee comments and
floor debate that the primary intention of day-fines law was
to reduce the number of misdemeanor offenders who are sent
to jail and to increase fine collection rates. Day-fines
legislation, as enacted, will not achieve either of those
objectives without further changes. Day-fines law excludes
most misdemeanors for which people are presently sent to
jail. The vast majority (in excess of 85%) of those jailed
for misdemeanors are sentenced for one of six crimes:
1. DWI
2. Refusal to take a breathalizer.
3. Driving with license suspended.
4. Driving with license revoked.
5. Misdemeanor assault.
6. Violation of a domestic violence restraining
order.
As the law currently stands, a day fine is applicable to
none of the foregoing. Day fines will thus not
significantly reduce the number of misdemeanants clogging
the jail system.
The second problem is that, as now structured, increased
fine collection is unlikely. Imposing a day fine is one of
several sentencing options available to a judge. A judge
will only impose a day fine, in lieu of a regular fine or
jail if the judge feels the defendant will actually pay the
fine. Review of state collection practices evidences that
current fine collection rates are "incredibly low." People
are supposed to pay their fines immediately to the court
system. If they do not, we refer them to the Dept. of Law
fine collection unit which is funded by program receipts.
That unit is resource limited and is only able to go after
PFDs to collect fines. The collection rate is only 10%.
The day-fines committee believes that until the Dept. of Law
receives additional resources for fine collection, judges
are unlikely to use this sentencing alternative. The
committee thus suggested enactment of legislation to
prohibit issuance or renewal of a state license until
outstanding criminal fines are paid.
A further problem with day-fines law pertains to fine
amounts resulting from the day-fines formula. In order to
avoid separation of powers questions, the legislature
statutorily specified the unit scale and general formula for
computing day fines. A person sentenced for a class A
misdemeanor can be sent to jail for up to 365 days. The law
thus allows for a fine of up to 365 days of salary. The
day-fines committee found that that would require imposition
of fines of "incredible levels." The committee thus lowered
the maximum number of days of a person's salary from 365 to
45 days and discovered that even reduction would continue to
require "some incredible fines to be imposed." As an
example, Mr. Christensen cited the case of a motorist cited
for illegally passing a school bus. That offense is a class
B misdemeanor. When an individual is convicted of the
offense, it involves a mandatory court appearance, six
points on the individual's driving license, and a fine of
$100 to $200. Under day-fines law, reduction of the
mandated 365 days of pay to 45 days would require that a
person with an income of $10,000 receive a fine of $275. A
person with income of $40,000 would receive a $1,100 fine,
and an individual with a $100,000 income would be fined
$2,800.00. Since fines are so high, even after committee
reduction, the Supreme Court is reluctant to proceed without
legislative review of fine levels and approval of those
levels. Mr. Christensen stressed that establishment of the
foregoing fines is not a judicial power but legislative
power delegated to the courts. He then reiterated need for
the legislature to "sign off on this before we implement it
because we're not sure it's entirely what you expected."
The second largest category of misdemeanors is fish and game
offenses. After much deliberation, the day-fines committee
excluded those offenses from the plan. Unlike Title 11,
which has clear statutory framework with classification of
misdemeanors, fish and game law has no clear sentencing
structure. There are many different penalty provisions. It
is not always obvious which one applies to a particular
offense. Because many offense definitions overlap, the same
conduct can be charged under different statutes and
regulations with entirely different consequences. The
committee was unwilling to impose another layer of
complexity on this already overly complex system. The
committee recommended that the legislature appoint a special
legislative committee or interagency working group to assess
and restructure fish and game penalty provisions and
definitions of offenses.
In his closing comments, Mr. Christensen stressed that it
will require a significant commitment of resources to
implement legislation from last year. The proposed bill
takes care of technical problems, but larger fundamental
problems remain outstanding. Those will need to be
addressed at some time.
Responding to a question from Co-chairman Halford, Mr.
Christensen referenced the day-fine report which he
explained had been furnished to all legislators' offices.
He reiterated that even after reduction of the possible fine
from 365 days to 45 days, fines are very high for offenses
that "people shouldn't do but sometimes they do,
thoughtlessly." He urged the committee to review numbers
within the report and advise the court system if that is
what was intended when authority was provided. Co-chairman
Halford said he had no problem with the higher fines.
Senator Rieger asked if authority allows the court system to
use a fraction of a day as the basis for a day fine. Mr.
Christensen suggested that authority to reduce the number of
days achieved the same result. He questioned whether
application of a percentage of daily pay could be utilized.
End: SFC-95, #61, Side 1
Begin: SFC-95, #61, Side 2
In response to an additional question from Senator Rieger,
Mr. Christensen explained that the statute allows for use of
aggravating and mitigating factors. The court is required
to set a presumptive day fine for an offense. If
aggravating or mitigating factors are found, the judge may
reduce or increase the fine within a certain parameter.
Some of the proposed technical changes relate to aggravators
and mitigators.
Co-chairman Halford voiced his belief that it is not
excessive to fine someone $1,000 or $1,500 for "a major
violation that endangers people." He further voiced his
support for a minimum fine of $5,000 for drunk driving "that
becomes a super lien on the vehicle on the second offense."
No bank would then loan on a car, and no person would loan
their car to an individual after that individual was
convicted of DWI.
Senator Rieger advised of need to review the schedule of
fines, suggesting that some may be too low and others too
high. The maximum amount of 365 days was placed in statute
so that the judge could fine or sentence to jail for that
amount. It appears that when converted to a cash basis,
that flexibility was removed either by the manner in which
the courts interpreted the legislation or the way the law
actually reads. He said he was a proponent of day fines but
agreed that the punishment must fit the crime. He attested
to problems stemming from erratic enforcement of law.
Mr. Christensen directed attention to the fine schedule and
noted that a fine for a level six offense (the most serious
misdemeanor) if applied to DWI (which is not now covered)
could amount to $5,500 for a person with $100,000 income.
The problem is that because DWI carries a mandatory jail
sentence, a day fine cannot be applied. Both Co-chairman
Halford and Senator Rieger indicated support for a fine of
that magnitude. Senator Rieger then questioned whether the
legislature had the courage to change DWI from the mandatory
three days in jail to a stiff fine. The Co-chairman
suggested that if the change had an enforcement mechanism,
there would be support. Unless there are provisions for
something like a super lien, the money will not be
collected.
In response to a question from Senator Sharp, Mr.
Christensen explained that for certain misdemeanors, a judge
has the option of imposing the standard jail sentence and
fine or the day fine. When a day fine is imposed, there is
no possibility of a jail sentence, but the defendant is "hit
with a very, very stiff fine." Thereafter, the defendant
cannot be put in jail because he or she does not pay the
fine because the constitution prohibits imprisonment for
debt. As a result of further discussion and concern
expressed by Senator Sharp, Mr. Christensen suggested
revising the traditional system of jail and a fine to
include larger fines based on salary. The fine would then
serve as a condition of probation. If it is not paid, the
defendant would go to jail. Mr. Christensen questioned
whether that would work within the confines of the
constitution. He noted that in the present situation, the
judge "really has to make his decision up front." The judge
evaluates the defendant and determines whether to impose the
traditional jail time and fine or a substantial day fine in
lieu of the traditional sentence. The judge will not levy a
day fine if he or she suspects it will go unpaid.
Senator Zharoff questioned whether alternatives such as jail
time, a low fine, or a higher fine could be imposed based on
the defendant's economic status. Mr. Christensen
acknowledged concerns regarding equal protection. Under a
day fine, an individual pays a percentage of what he or she
actually makes. No matter how poor an individual may be, if
the defendant is making money, he or she may receive a day
fine--a percentage of salary. The court will frequently
impose fines under the traditional system, and people who
cannot pay have the option of performing community work
service. Statutes have a dollar value for each day of the
fine. Judges have the option of allowing defendants to pay
day fines with legislatively defined community work service.
A judge could not send people to jail "just because they had
no money."
In response to a further question from Senator Zharoff, Mr.
Christensen voiced his understanding that while the statute
does not clearly say, day fines are based on a defendant's
income rather than combined income of a husband and wife.
Discussion followed among committee members concerning
disposition of the bill and whether it should be reviewed
during the interim in order to incorporate needed
fundamental changes in law. Mr. Christensen reiterated that
the court is reluctant to proceed with implementation of day
fines without further legislative review. The court system
will review comments before committees and send the issue
back to the day-fines committee for additional work.
Senator Rieger expressed support for implementation of day
fines. He then voiced support for legislative direction
that allows the day-fine schedule to be more flexible (a
combination of limits on days, total days, fractions of
days, a sliding scale, etc.) and removes prohibition against
use of day fines for misdemeanors that are now exempt from
application. He then asked if that would be sufficient for
the courts to implement the program. Mr. Christensen said
he could not predict what the courts might do. He
acknowledged that the foregoing changes would help achieve
one of the purposes of the day-fine concept: reduction of
the number of misdemeanants clogging jails. Co-chairman
Halford expressed doubt that there would be sufficient
legislative support for inclusion of DWI offenders unless
there is assurance of collection of "major, multi thousand
dollar fines."
Co-chairman Halford voiced his understanding that day fines
relate to income but do not apply against assets. He cited
instances of individuals who may have low income but
"tremendous assets" and suggested that they "ride the very
low penalty schedule." He then asked if that aspect was
considered. Mr. Christensen acknowledged the concern and
suggested that a judge might decide that a day fine is not
appropriate for a particular defendant, and the traditional
jail sentence and standard fine would be imposed. He
stressed that for 90% of the public, the day-fine approach
works.
Responding to a question from Co-chairman Halford regarding
the seasonal nature of income for some residents, Mr.
Christensen noted that one of the proposed technical changes
requires that judges must believe that the fine will be paid
within one year. The original provision required payment
within six months. The technical change extends that period
to one year.
Senator Rieger asked if a judge could suspend a portion of
the imposition of a day fine. Mr. Christensen responded
negatively. However, a technical change relates to set-
aside of conviction. At the present time a judge may impose
a suspended imposition of sentence and allow one's record to
remain clean. Day-fine law does not allow that. The day-
fines committee felt that if the state allowed for suspended
imposition of day-fines, it would encourage defendants to
pay. The technical change thus allows a judge to set aside
a conviction if, in the interest of justice, he believes it
is warranted, and the person has paid his or her fine.
Co-chairman Halford voiced concern that the proposed bill
was introduced on the 100th day of a 120-day session, and
the committee which should properly deal with such an issue
waived referral to Finance.
Further discussion followed regarding inclusion of DWI
offenses. Co-chairman Halford stressed need to ensure an
arrangement such as three days in jail or a fine of $5,000--
"whichever the judge determines to have the maximum
deterrent value on that particular offender. " If there is
no mechanism for collection, the state will likely never get
paid. Senator Rieger expressed his understanding that the
bill as presently proposed would not accomplish all that it
should. Co-chairman Halford suggested that the bill be held
for additional work and advised that he would bring it back
for further discussion at the next meeting.
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