Legislature(1997 - 1998)
02/23/1998 01:07 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 272 - DO JAIL TIME BY ELECTRONIC MONITORING Number 0039 CHAIRMAN GREEN announced the first item of business would be a revisit of HB 272, "An Act to permit a court to order a defendant who receives a sentence of imprisonment for a misdemeanor to serve the sentence by electronic monitoring; and relating to the crime of unlawful evasion." The committee had moved CSHB 272(JUD) out of committee on February 18, 1998. CHAIRMAN GREEN referred to the written conceptual amendment provided by the Department of Law on February 18, 1998, which replaced subsection (c) and which was adopted as Amendment 1 on that date. Chairman Green explained that the conceptual amendment had a problem with it; after modifying it, they had checked with Anne Carpeneti, who had agreed on the wording relating to relieving the person from imprisonment, which is not really a release if the person goes on electronic monitoring. Chairman Green said if it was the committee's wish, they could rescind the action on that amendment and offer a new amendment to take its place. REPRESENTATIVE ERIC CROFT asked whether they could muck with it a little. CHAIRMAN GREEN said yes. Number 0132 REPRESENTATIVE CROFT made a motion to rescind the committee's action of February 18, 1998, which moved CSHB 272(JUD) from the House Judiciary Standing Committee. There being no objection, the bill was back before the committee. REPRESENTATIVE BRIAN PORTER made a motion to rescind adoption of the previously discussed amendment [Amendment 1] that replaced subsection (c) in the latter part of the bill. CHAIRMAN GREEN noted that there being no objection to either motion, those actions were rescinded. Number 0198 REPRESENTATIVE CON BUNDE made a motion to adopt Amendment B.1 [0-LS0821\B.1, Lu Page 3, lines 21 - 24: Delete all material and insert: "(c) A decision by the commissioner to designate a prisoner to serve a term of imprisonment or a period of temporary confinement, or a part of the term or period, by electronic monitoring does not create a liberty interest in that status for the prisoner. The prisoner may be returned to a correctional facility at the discretion of the commissioner." REPRESENTATIVE CROFT objected to discuss what he said is a small point but one he'd like to stay consistent on. He stated, "And it was Representative Porter's point, where it says, 'electronic monitoring does not create a liberty interest.' I think he was correct when he said, 'is not intended to create.' And we really aren't in the business of telling them. We're telling them what we're trying to do." REPRESENTATIVE PORTER said he would second that. Number 0243 CHAIRMAN GREEN indicated they need to decide which position to take, whether to actually tell the court or allow the court to determine whether this does create a liberty interest; there are two schools of thought on it. He said it was good that Representative Croft had brought that up. REPRESENTATIVE CROFT asked whether Ms. Carpeneti was present, then noted that she was not. CHAIRMAN GREEN asked Kevin Jardell to address it. Number 0274 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, advised members that he had spoken with Legislative Legal Services and with Ms. Carpeneti. He said although he wasn't speaking for Ms. Carpeneti, he believes it was the general consensus that "does not create a liberty interest" is stronger language and would not invite the court to jump in as quickly and play around with whether or not it does create a liberty interest. REPRESENTATIVE CROFT said it seems more accurate the way Representative Porter had said it, but it is not a big point. MR. JARDELL explained that the idea is that whether the legislature says it or intends it, the court will decide whether there is a liberty interest or not. By stating it as "we intend," the weak language may somehow cause the court to jump on it more quickly. Number 0368 REPRESENTATIVE PORTER stated that he doesn't intend to take this to the wall, either, then said, "But quite frankly, I would like to see, eventually, the courts get back to making decisions based on an interpretation of the law, and us getting back to writing laws and not trying to write a constitution." REPRESENTATIVE PORTER said he is inviting the notion that the legislature recognizes that the court interprets the constitution, by saying it is the legislature's intent that this not create a liberty interest, but a liberty interest is a constitutional provision. He asked, "If we criticize them for what we call writing laws, why shouldn't we return the favor and allow them to criticize us for interpreting the constitution?" MR. JARDELL replied that there is certainly something to be said for that. He stated, "In fact, it was my understanding, after speaking with both Law and Legal that it was Corrections that wanted this stated, that even the statement that it creates a liberty interest is -- it's either there or it's not. The whole statement is somewhat superfluous, when you really get down to the legal dynamics of it." Number 0530 REPRESENTATIVE CROFT removed his objection to Amendment B.1. CHAIRMAN GREEN asked whether there was any further objection. Hearing none, he announced that Amendment B.1 was adopted. Number 0555 CHAIRMAN GREEN brought up Amendment B.2 [0-LS0821\B.2, Luckhaupt, 2/20/98], which read: Page 3, following line 24: Insert a new subsection to read: "(d) The commissioner may require a prisoner designated to serve a term of imprisonment or a period of temporary confinement by electronic monitoring to pay all or a portion of the costs of the electronic monitoring." CHAIRMAN GREEN explained that this would merely provide funding and has been used nationwide, apparently quite effectively. The process suggested "to this committee that's been reviewing this" was apparently the most popular: One hour of the person's normal salary would be designated. While indigents could not pay, others of greater means would pay more. CHAIRMAN GREEN indicated the actual cost per person is somewhere around $5 or $6 per day. The concept with Amendment B.2 is to leave the commissioner or the department to determine however they want to fund it, but that they fund it, rather than creating an additional burden to the general fund. "Wherever it's been used, it's been quite successful," he added. Number 0638 REPRESENTATIVE BUNDE made a motion to adopt Amendment B.2. REPRESENTATIVE CROFT indicated that materials provided by the sponsor suggest that sometimes rich defendants pay more than the cost, to make up for the poor defendants. He asked whether this is limited to the costs. CHAIRMAN GREEN replied that they are saying they will let the department determine what they want to do. REPRESENTATIVE CROFT asked whether it could be twice the cost. CHAIRMAN GREEN replied, "Twice? I don't know about that." REPRESENTATIVE PORTER said he interprets it to say they can pay all or a portion of the costs of the electronic monitoring program. CHAIRMAN GREEN agreed. REPRESENTATIVE CROFT asked whether the cost, then, was not for each particular person. Number 0716 CHAIRMAN GREEN confirmed that. He then asked whether there was further discussion or any objection. There being no objection, Amendment B.2 was adopted. Number 0727 REPRESENTATIVE BUNDE made a motion to move CSHB 272(JUD), as amended, from committee with the attached fiscal notes. CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 272(JUD) moved from the House Judiciary Standing Committee.
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