03/27/1995 02:30 PM House JUD

 HB 201 - PRISONER LITIGATION AND APPEALS                                    
                                                                               
 Number 400                                                                    
                                                                               
 LAURIE OTTO, Deputy Attorney General, Criminal Division, Department           
 of Law, described HB 201.  One of the things that the Governor                
 asked when he first took office is for everyone to look at their              
 future budgets.  One thing in the Criminal Division Budget, is a              
 growing number of Corrections' lawyers that work for the Department           
 of Law.  Over the last four years, there has been a 20 percent                
 growth rate in the number of civil cases being filed against the              
 state by prisoners.  Alaskan prisoners litigate at a tremendously             
 high rate.  Many times, prisoners litigate just for something to              
 spend their time on and to get back at the people who are                     
 imprisoning them.  One of the things that has been successful in              
 other states is requiring prisoners to pay partial filing fees.               
 New York's prisoner litigation rate has dropped in half since they            
 established this requirement.  Right now, most prisoners are pretty           
 much exempt from paying filing fees because they are considered               
 indigent in most cases.  So they can file a civil action without              
 any immediate cost or any ultimate financial risk.  If you or I               
 file a civil suit, we have to pay a filing fee, and we are                    
 potentially liable for the other side's attorney's fees if we lose.           
 That is not a realistic possibility if you are talking about a                
 prisoner.  So what we did, is say that if you are in prison and do            
 not have the $100 filing fee, you have to pay essentially 20                  
 percent of the average six month balance in your inmate account.              
 So if the average monthly balance over a six month period is $5,              
 you have to pay $1; if it is $100, you have to pay $20.  You have             
 to pay SOMETHING in order to get a case filed in court.  Also, if             
 you are paying less than full filing fees, the bill would require             
 the court to make a finding not after an investigation, but just              
 based on the pleadings before the court, that it is not malicious,            
 frivolous, or brought in bad faith, so that there is an initial               
 screening step that the court has to take in accepting a case where           
 less than full filing fees have been paid.  That is purpose number            
 1 of the bill.                                                                
                                                                               
 MS. OTTO explained purpose number 2.  People are able to file                 
 sentence appeals as a matter of right in the state.  If you have              
 been given a sentence in excess of a year for a felony, or 90 days            
 for a misdemeanor, you can file a sentence appeal.  That it is your           
 right.  There is no screening.  You can file an appeal and the                
 court has to hear it.  We are upping those limits to two years for            
 a felony and 120 days for a misdemeanor.  We have gone back and               
 looked at court system statistics, and we see that only a very                
 small percentage of sentence appeals are granted, that 90 percent             
 of sentences are affirmed.  We looked at the body of cases where              
 they were being affirmed, and there is a case called Austin that            
 talks about giving somebody who is a first felony offender more               
 than the sentence for a second felony offender.  For class C                  
 felonies, it is two years, and if you are within that two year                
 range, which is within the Austin limits, the courts pretty                   
 routinely reject the sentence appeals, so we tried to pick the bulk           
 of sentence appeals where they were routinely being denied by the             
 courts.  Part of the theory here is to allow all the agencies                 
 involved, the courts, the prosecutors, the public defenders and the           
 Office of Public Advocacy, to focus on the cases where there is a             
 likelihood of prevailing as opposed to the cases where they are               
 routinely being denied, and we are all just churning up resources.            
 We have also said that if you agree to a particular sentence, so              
 that if you were convicted of second degree murder, and you agree             
 to a sentence between 30 and 40 years; if you get 40 years, this              
 bill would say you can no longer appeal that sentence as being                
 excessive, because it is part of what you agreed to.  If you plea             
 to second degree murder with the understanding that you will not              
 get less than 20 years but the state can argue for up to 99 years,            
 it says if you get 20 years, you cannot appeal the sentence, but              
 you can if you get 99 years because that is more than what you                
 agreed to as the minimum.  If you get within the minimum, or within           
 the range of what you agreed to, those can no longer be appealed.             
 Right now, those cases are being appealed.  The bill is trying to             
 put some finality to criminal convictions.                                    
                                                                               
 Number 730                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked under what circumstances you can             
 still appeal despite the restrictions.                                        
                                                                               
 MS. OTTO answered that they are on page 9, starting on line 19.               
 These would include instances where there was something to                    
 physically prevent you from filing a claim, such as a guard in a              
 correctional institute refusing to take your paperwork, and you are           
 depending upon them to file it.  That would be an exception.  Also            
 if you came up with evidence that would show that you are innocent,           
 that would be an exception.                                                   
                                                                               
 REPRESENTATIVE BUNDE asked Ms. Otto to explain Section 3.                     
                                                                               
 MS. OTTO answered that under Evidence Rules 608 and 609, they spell           
 out the circumstances in which you can impeach, attack or discredit           
 a witness.                                                                    
                                                                               
 CHAIRMAN PORTER asked Ms. Otto if she felt there would be an equal            
 protection problem with the different treatment of those who are              
 indigent as opposed to those who are not.                                     
                                                                               
 Number 820                                                                    
                                                                               
 MS. OTTO said she had spoken with Ms. Carpeneti about this, and Ms.           
 Knuth has been working on it this morning.  They would prefer the             
 bill were amended to say that the sections that are on page 3, and            
 continue on to page 4, only apply to people who are indigent and              
 are filing partial fees.  We would prefer this to apply to all                
 prisoners who have filed a lawsuit for exactly the reason that you            
 are saying.  We feel that making people who are poor jump through             
 different hoops than people who are not poor is a problem from an             
 equal protection standpoint.  We would like the bill amended to               
 reflect that change.                                                          
                                                                               
 Number 860                                                                    
                                                                               
 CHAIRMAN PORTER said the bill would be held over until one o'clock            
 on Wednesday, in order to draft a committee substitute.