Legislature(1997 - 1998)
02/18/1998 01:41 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 274 - PROBATION AND PAROLE FEES
SENATOR JERRY WARD, sponsor of SB 274, said this bill sets up a
procedure for parolees to pay their debt to society. He suggested
that this legislation puts responsibility back onto those people
causing the problem. He commented there are 4,600 people on
probation and parole currently and calculated that if each of these
people paid $3.30 per day it would generate 5.5 million dollars. He
said also the state needs to look at options to deal with prison
overcrowding. He noted currently there is a request for proposal
out to send more prisoners out of state. He emphasized that it is
not the citizens' fault that people commit crimes and this bill
will create a mechanism that will have criminals pay their debt to
society. SENATOR WARD said the bill contains a provision for people
who cannot afford to pay the $3.30. This provision says those who
are incapable of paying will have their permanent fund dividend
(PFD) garnished. He said the fee equals the amount of the dividend
and the bill was written that way purposefully. SENATOR WARD
commented that the citizens should not bear the burden of the cost
of incarceration for law breakers, the criminals themselves should
bear the cost. He said this is not a large cost and those who do
not comply will have their permanent fund dividends attached. He
stated this bill is a proper thing to be considered in light of
the current tight financial situation faced by the state.
SENATOR ELLIS asked if SENATOR WARD knew how long ago a previous
fee was repealed. SENATOR WARD replied it was 1984, when he served
in the legislature.
SENATOR ELLIS asked why he had picked a fee four times larger than
the national average. SENATOR WARD replied he chose the amount to
be roughly equal to the amount of the permanent fund dividend.
MR. CRAIG JOHNSON explained the amendment they had brought. MR.
JOHNSON said the amendment was brought forward by the permanent
fund division itself, and merely codifies the fact that garnishment
of a PFD for the purpose of this bill will not take precedence over
reparations for victims of domestic violence. He said this was
suggested by the Attorney General and is a technical amendment.
SENATOR MILLER moved the adoption of amendment #1. Without
objection, it was so ordered.
MR. BLAIR MCCUNE, representing the Public Defenders Office,
expressed some concerns about the bill. He worried that payment of
fees might be required as a condition of parole or probation. His
office represents people in parole and probation revocation
proceedings and he is concerned that caseloads might increase under
this bill. He referred to criminal rule number 39 and rule number
209 of appellate procedure and said these rules require recoupment
of costs for appointed counsel. MR. MCCUNE said these rules allow
for a judgment to be entered in a civil action, including the
garnishment of a dividend, rather than the revocation of the
individual's probation or parole. MR. MCCUNE was further concerned
that this bill might apply to misdemeanor probation which is
generally unsupervised by a probation officer. He suggested the
costs lie in supervised, felony probation. Lastly, MR. MCCUNE
mentioned section 7 which reads; "the board shall revoke parole";
he believes it would be better to leave the board with more
flexibility and not mandate the revocation of parole. MR. MCCUNE
also noted that the asterisk fiscal note was the result of the
possibility of his office encountering more probation and parole
revocation hearings.
SENATOR WARD remarked it was quite specific in the bill that it was
those who are able to pay and choose not to who would be sent back
to jail. He stated this is a revenue generating bill which, if
enacted, will generate 5.5 million dollars, roughly the cost of
sending 250-300 people out of state to Arizona. He emphasized this
is where criminals pay for what they are costing the state. He
continued, restating that this is a revenue generating bill and the
yearly fee exactly equals a permanent fund dividend. He said, even
so, it is not that much and only equals three quarters of an hour
of work each day at minimum wage. He concluded that this revenue
would free up money for education and other important state
expenses.
CHAIRMAN TAYLOR asked BLAIR MCCUNE about the automatic revocation
of parole and noted that under section 3 the only amendment is to
add to discretionary items that the judge may impose. CHAIRMAN
TAYLOR said it reads; "may be required to pay" and so is
discretionary and would require many steps to revoke parole. He
does not see it as a mandate and inquired if MR. MCCUNE did. MR.
MCCUNE replied he was looking at section 4 that says "shall require
the periodic probation fee to be paid." He said he understands the
court can decide conditions of probation/parole but it appears to
him, due to section 4, that this is a required condition. His
concern is that a person who is unable to pay will have their
parole automatically revoked. He is worried about a case where the
parole board will not have the discretion to give someone another
chance.
MS. LYNDA ZAUGG, representing the Department of Corrections,
informed the committee that the department does not disagree with
the concept of SB 274, but that there is concern with the fiscal
impact. MS. ZAUGG explained the issue is complicated. In the late
1980's these fees existed and there was great difficulty collecting
them. According to MS. ZAUGG, only ten per cent out of 3,000 were
able to pay their monthly fees. She said the department is looking
at the current population of 4,100 active parole cases and their
potential for payment. MS. ZAUGG stated that in the 80's offenders
were allowed to perform community work service in lieu of their
monthly fee. This is not an option under SENATOR WARD'S bill. She
said these factors make it difficult to predict how much would
actually be collected under this bill. MS. ZAUGG said the fee was
repealed in 1989 primarily because it was a hardship to offenders,
particularly those in rural areas without a strong cash economy.
She mentioned that the bill does take into consideration indigence
but requires hearings to determine if an offender is indigent.
These hearings will be a costly, time consuming process, again,
especially for offenders in rural areas. She said the fees under
this bill are much higher than the old fees and considerably higher
than anywhere else in the nation. MS. ZAUGG said this bill allows
for probation to be revoked in cases where the fee is not paid and
this will result in probationers returning to an expensive
institutional setting. She asserted that this bill requires the
revocation of parole by the parole board unless the parolee shows
by a preponderance of the evidence that he or she is unable to pay.
According to MS. ZAUGG, this does not apply if the offender is
indigent; however, in 1989 in Representative Foster's district, 99
per cent of offenders were unable to pay the fee. She cited this as
a major factor in the repeal of that fee. She explained that though
the bill allows for the garnishment of a PFD, the fee falls ninth
in line to those debts that might already bind an offenders PFD.
She noted there are currently 4,100 people under active supervision
and more than 50 per cent of them have been under supervision for
more than one year. She said the importance of this is that a felon
who has been incarcerated at any time during a year is not eligible
for the dividend. MS. ZAUGG concluded the pool of offenders with a
PFD available for attachment is smaller than meets the eye.
CHAIRMAN TAYLOR asked if a levy against the permanent fund dividend
was utilized in order to collect fees previously and MS. ZAUGG said
that was discussed at the time but was not sure if it was done.
CHAIRMAN TAYLOR stated it was not part of that bill.
SENATOR ELLIS asked if other agencies that might be impacted had
been contacted about this bill.
SENATOR WARD said part of the problem historically had been
collection of the fee and that was why his bill has a third-party
collection provision into it. He stated this would help relieve the
burden on staff, who should not function as a collection agency.
SENATOR ELLIS asked MS. ZAUGG if that meant there would not be any
staff time necessary for the Department to implement this bill. MS.
ZAUGG responded that it appears there would be time involved but
the amount of time is unclear.
SENATOR ELLIS inquired about the process of proving indigence. He
asked who is required to prove what and if the whole thing is
difficult to sort out. LYNDA ZAUGG replied it is always difficult
when dealing with an offender expected to provide information on
his or her financial situation. She said in this situation people
may be resistant to providing information and a fairly elaborate
process might be necessary, such is as used in the court system.
MR. JIM FREY, on teleconference from Slana, said he did not have a
copy of the bill and therefore would not comment. CHAIRMAN TAYLOR
explained basically what the bill would do and MR. FREY replied
that he thought those people didn't have any money. CHAIRMAN TAYLOR
then explained the provision made for those unable to pay and MR.
FREY said he'd agree with that.
SENATOR WARD asked Ms. ZAUGG about the number of people on
probation and parole. He had 4,600 versus her 4,100 and wanted to
know what happened to the other 500 people. MS. ZAUGG replied that
4,100 represents the number of active cases; she estimated there
are 600 outstanding warrants across the state. She said these
people have absconded probation and will have people active in
their case once they are rearrested.
SENATOR MILLER moved SB 274 as amended out of committee with
individual recommendations. Without objection, it was so ordered.
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