Legislature(1997 - 1998)
04/17/1998 09:25 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 274(JUD)
"An Act relating to fees for probation and parole."
Co-Chair Sharp noted this bill had received a hearing at an
earlier meeting and that a committee member wanted to work
with the sponsor to make changes. At the prior hearing,
Amendment #1 was adopted and Amendment #2 was not adopted.
There was further discussion about where the committee was
in relation to action on the bill.
Senator Donley shared with the other members that he had
been working with the sponsor to change the period of loss
of the Permanent Fund Dividend for those individuals who
committed a felony or multiple misdemeanors from one to two
years.
He continued by saying they also worked to add to the
current list of appropriations of these revenues. Under the
current bill, the PFD's that would no longer go to the
criminal would be available to distribute to the Victim's
Compensation Fund, the Council of Domestic Violence and
Sexual Assault and the Department of Corrections
incarceration and probation program. He was proposing to
add to the list, the Office of Crime Victim's Rights, which
would be created upon the passage of SB 219. He noted the
committee had that bill in its possession and one reason
that bill had not been moved from committee, was because of
the accompanying $500,000 fiscal note. He suggested the
withheld PFD funds could go to support the Office of Crime
Victim's Rights.
Amendment #4 would be the first step in accomplishing this.
It would change the loss period for PFD from one to two
years for individuals who had committed a felony or been
convicted of two or more misdemeanor crimes against a
person.
Senator Adams objected for the purpose of asking a question.
He asked what would happen in relation to this amendment if
SB 219 failed to pass. Would other programs that were
listed as receiving funds through this bill suffer as a
result of the failure of SB 219, he wondered. Senator
Donley replied that the other programs would actually
benefit if the Office of Crime Victim's Rights were not
established. They would receive a larger share of the
funds. He admitted the department did not know how much
revenue would be generated by this program, but last year
3,029 criminals were denied a PFD due to incarceration. He
used that figure to calculate an amount of $4 million that
would be available for these programs.
Senator Donley moved to adopt Amendment #4. Senator Adams
objected, asking for further explanation of Section 8.
Senator Donley described how currently released felons and
multiple misdemeanants waited one calendar year to begin
receiving PFD's. This amendment would say they had to wait
two years before receiving their dividend again, he
explained. Senator Adams voiced his opposition of the
amendment. His reason was that he felt this would place a
burden on the families of convicts who depended on the
dividends to help cover living expenses.
Co-Chair Sharp requested a roll call. Amendment #4 was
adopted by a vote of 6 - 1, with Senator Adams casting the
opposing vote.
Senator Donley offered a motion to adopt Amendment #3 and
spoke to the amendment. He said, with the funding source
established by the previous amendment, this would add the
Office of Crime Victim's Rights to the list of recipients of
the revenues. He noted it had a contingent effective date
based on the passage of SB 219.
Senator Parnell asked for clarification that the intent was
not to appropriate all the earned revenue into the one
program, but to divide it among the four listed above.
Senator Donley affirmed, pointing out that the existing
statutes did not specify a percentage breakdown of
distribution.
Senator Adams asked if each program would receive 25 percent
of the funds, or would they be funded according to a
priority structure. Senator Donley answered that neither
would apply. Funding would be determined strictly by a
budgetary process, starting with the Governor's proposal and
going through the Legislature system just as other budget
items did. He noted that more funds currently were spent on
the Council of Domestic Violence and Sexual Assault program
than were spent on the Victim's Compensation Fund.
Senator Adams had another question relating to Section 11.
He hoped that the companion bill, SB 219 would accompany
this bill as it traveled through the remaining committees.
He felt this would make both bills more understandable in
their relation to each other. Senator Donley advised that
SB 219 was in the Senate Finance Committee and Senator Adams
suggested scheduling a hearing so it could be moved from
committee soon.
There was no objection to Amendment #3 and Co-Chair Sharp
ordered it adopted.
There were no further amendments and the committee began
hearing public testimony.
Co-Chair Sharp first called upon LINDA ZAUGG, Director of
Community Corrections, DOC, who came to the table and spoke
as follows:
"What I wanted to do today was speak about SB 274, which is
essentially proposes placing a $3.30 per day fee on
offenders that are on probation and parole."
"I would like to provide just a little bit of history on the
subject. In 1986 the Legislature proposed and passed a
probation fee. The DOC at that time supported this
legislation and placed in regulations, a requirement for $45
per month fee. It became clear soon after that that fee was
much more difficult to collect than originally anticipated.
And it really did require a considerable amount of probation
officer time doing accounting work and trying to enforce the
collection of that fee. The DOC at that time was able to
collect less than ten percent of the anticipated fee and
ended up putting some probation officers on community work
service to pay the fee in liew of payment. This in fact
turned out to be a paperwork nightmare and was
unsuccessful."
"In rural Alaska, probationers who live the subsistence
lifestyle, were unable to pay and there was little in the
way of community work service to replace the fee. In urban
communities, most probationers did not - who did not have
work could not afford to pay the fee or outright refused to
pay the fee. While AS 12.55.051 allowed the defendants to
be incarcerated one day for each $50 owed in fee or fine,
very few offenders were incarcerated. This issue quickly
became a fee with no consequences. While some did pay, over
90 percent did not. The DOC was still obligated to still
try to collect that money and spent a considerable amount of
time and resources in that effort to collect."
"During the 16th Legislature, Senator Adams proposed a bill
to repeal the fee because many of the probationers in rural
Alaska lived a subsistence lifestyle and it was extremely
difficult to collect. And collection in other parts of the
state just simply did not go well. Senator Adam's bill,
which was SB 133 passed the Senate by a vote of 17 to zero
and passed the House by a vote of 37 to zero. Five members
of this committee voted to repeal that fee."
"House bill - the current HB or SB 274 differs from the
previous fee in that it is over twice the amount of the
previous fee, which was $45 a month. And requires the DOC
to contract out the collection and administration of the
fee. The current national average of 23 states where the
collection fee exists, is $22.60 a month. The highest fee
is $40 a month with the lowest fee being $10 a month."
"In addition, Section 7 of this legislation requires that
the Board of Parole revoke probation for parolees that
refuse to pay the fee. This will be the first statute that
mandates revocation of parole anywhere in the Alaska law.
The bill will have no choice but - the board will have no
choice but to revoke parole and put the parolees back in
severely overcrowded system. It will cost more per day than
the monthly fee."
"SB 274 goes onto require the probationers and probationees
to assign their permanent fund check to the state and
requires the DOC to attach the PFD if they become inerrors.
However, the state would not get any of this money until
prior requirements are satisfied such as child support,
restitution, court-ordered fees, etc. The fees are number
eight in line for the attachment of the PFD check. DOC does
not believe that many, if any of these PFD's will be left by
the time we get to number eight under AS 43.23.065 fee. One
example given for this bill is that of the State of Texas,
which collects $90 million a year from their
probation/parolee fees. And that in fact is correct. The
State of Texas has made the collection of fees a priority.
But this is a priority over things such as child support and
restitution. The DOC does not believe that children and/or
victims should be paid after probation/parole fees are
satisfied."
"With regard to the collection of fees, we realize that the
sponsor has required that this be contracted out. The DOC
understands and supports this concept. We contacted the
Associated Credit Agency, which is a collection agency here
in Juneau and were told that they did not do this kind of
work. They're in the business of collecting bad debts only
and normally take a percentage of the money recovered. It
is unclear if an accounting firm or a person will take on
this task keeping in mind that it is probably the most
difficult group of people to collect money from. If they
do, it will still require considerable time on the part of
the probation officers who will have to work closely with
the contractors to provide information on the
probation/parolees."
"Finally, the DOC believes that the concept of this bill is
a good idea but the previous track record does not support
the reinstatement of this fee. It is easy to say that if
everyone pays their fee, the bill will bring in
approximately $5 million. Past performance indicates that
this will not be the case and the DOC believes that there
are no indications that this will change."
"One of the things brought up at one of the last hearings
was the business of roughly 20,000 misdemeanants out there
that could pay part of this fee as well. I just - for the
committee's information - they're actually - during calendar
year '97 there were 9,175 misdemeanant arrests - people
arrested for misdemeanants for a total of 17,574. So the
fee, if any would actually be collected on those 9,000
folks."
"Thank you for the opportunity to speak on this issue. If
you have any questions I'd be glad to try to answer them."
Senator Adams asked if the misdemeanants were under the
supervision of the probation/parole segment. Ms. Zaugg told
him the probation/parole offices would not be a part of the
collection efforts.
Co-Chair Sharp next called upon JENNIFER BELL of Natives for
Sobriety to testify. Her testimony was as follows:
"[I have] kind of mixed feelings about SB 274. That some of
the concerns are as what was stated before. You know
there's a high rate of unemployment already in rural
communities. And then you - we also have individuals on
probation/parole who are classified as sex offenders and are
already paying for treatment sometimes at the rate of $400,
$500 a month. And I could see some real difficulty for them
to pay this and then there would be - you know I could just
see a lot of violations you know for not being able to pay
this fee."
"I'm also concerned that you know you have individuals who
are on public assistance you know like $100 a month is going
to go towards paying probation/parole fees because that's
the only money that they do have. And it seems like this
amount equals to the amount of the permanent fund per year.
And with - and I just in 1996 alone there was like 3,600
plus revocations where you know there - they were revoked
for whatever reason you know. Be very difficult for them to
be eligible for permanent fund when they're revoked and back
in jail. And I just see there's be great difficulty in
collecting this."
"I know there has been some discussion about at some point
having individuals return back to their home and in rural
areas that you know where there don't have probation
officers. You know they only have BPSO's and who's going to
collect this, who's going to monitor this. You know this
would be a real deterrent to having them go back home like
its just something else that could be violated for very
easily. So those are the concerns."
"You know regarding getting a job. I think I stated before
I was in Lemon Creek for fourteen months. It took me an
equal amount of time to get a job right here in Juneau and
very difficult. And I'm sure a lot of other probation -
those on probation and parole have the same difficulty
depending on whatever the crime is. It's just difficult
time. And it is a burden on the family. I know it's
something that we need to be responsible for, but it's also
something else that you know my mind it's like I have to
have a job or I will be in violation you know for not being
able to pay."
"Now on the other side it looks like this bill may pass, I
don't know. It and there have been many, many reports again
I keep bringing this up you know that if a good portion of
this money could go towards addressing those concerns that
have already been stated you know. There's a list of you
know places where this money is going to go, whether its to
- for the victims or for domestic violence - whatever if
some of that money could go back in corrections to help
correct some of the concerns that are there in terms of
culturally relevant programs. I think this would be a great
thing. If it could be collected you know."
"But I just see it's going to be real difficulty in
collecting this money. And you know - I know there are high
percentage of Natives out there you know from rural areas.
And I just see this as something that's going to be very
hard for them."
This concluded public testimony on the bill.
Senator Donley pointed out that the committee had the
amended bill before it. Senator Adams interrupted saying
that he was drafting another amendment that he wished to
offer. Senator Phillips requested a short recess while the
amendment was being distributed.
The committee took a five-minute AT EASE starting at
approximately 10:00 a.m.
Senator Adams apologized for the delay then moved for
adoption of Amendment #5. Senator Donley objected and
Senator Adams spoke to the motion.
He said this would be the first time in statute that a
parolee would be held responsible for the payment of a
parole fee with the penalty for not paying resulting in
reimprisonment. He believed the discretion should be left
up the Parole Board. His amendment would change the word,
"shall" to "may". The reason he did that, he explained was
because economic conditions changed within different areas
of Alaska. He felt the Parole Board should take that into
consideration when determining punishment. He also noted
the overcrowding in the prison system and suggested the
reimprisonment option could be delayed until the
overcrowding had been eased.
Senator Phillips wondered how often the parole board might
use this as an escape hatch for not returning offenders to
prison. He asked if there was a representative of the
parole board present at the meeting. Ms. Zaugg returned to
the table. Senator Phillips addressed his question to her
asking if the board would manipulate this law and see it as
an excuse for not remanding parolees. Ms. Zaugg responded
that the way the bill was currently drafted, the parole
board had no discretion.
Senator Phillips asked if the parole board followed a
standard or whether they passed judgement on a case by case
basis. Ms. Zaugg replied that it was pretty much case by
case. Senator Phillips felt that was a problem.
Ms. Zaugg offered ANN CARPENETI from the Department of Law
who was present and could answer any legal questions.
Senator Phillips voiced his concern that the parole board
would not follow the intent of the Legislature in returning
to prison; those parolees who failed to pay their fee. He
felt criteria should be set, rather than the parole board
operating on a case by case manner.
Ms. Carpeneti did not feel she was in a position to speak to
the standards followed by the parole board. In her opinion,
using the word, "shall" restricted the board from making a
decision when the failure to pay was a mistake, or the
person didn't get paid that month or other situations. She
spoke to the possible inappropriateness of returning
parolees to prison in some circumstances. She also
mentioned the overcrowded conditions in the prisons.
As Co-Chair Sharp read the language, there was some latitude
in the parole board's discretion. He read that portion,
"The board shall revoke the parole of the parolee who
defaults with payment of the parole fee imposed
under...unless the parolee shows by a preponderance of
evidence that the parolee was unable to pay despite having
made continuing good faith efforts to pay the fee. If the
board finds that the parolee was unable to pay despite
having made good faith efforts the parole may not be revoked
solely because of the inability to pay." That gave the
board discretion, he felt.
Senator Phillips then wondered why the amendment was
necessary. Ms. Carpeneti advised that it made more sense
form a drafting standpoint to use the word "may" when giving
the discretion under the circumstances.
Senator Donley requested the bill sponsor's opinion on the
issue. CRAIG JOHNSON, staff to Senator Jerry Ward commented
as follows:
"Specifically to the amendment, I think that that would in
essence take the teeth out of the bill. When you - it may
do it, it may not. I think part of the reason that the last
time this was tried and there was only an eight percent
collection rate was a result of two things. One, there was
no repercussions per say, and two, there was really no
incentive for the department to collect this money. Now
there is incentive and there are repercussions. The
incentive is it's a private collection agency so the
department really doesn't have to deal with it. And two on
the shell I think it's going to drive the inmate knowing
that there is very little - their only recourse to not
paying is to prove that they fall under the inability to
pay."
Co-Chair Sharp re-read the sentence in the bill which said,
"If the board finds that the parolee was unable to pay
despite having made continuing good faith efforts, the
parole may not be revoked solely because of the inability to
pay." To him, that was allowing the parole board some
discretion. Mr. Johnson agreed and added that if the board
determined the parolee was able to pay, then they had no
option but to revoke the parole.
There was no further discussion on the amendment and Co-
Chair Sharp requested a roll call. Amendment #5 failed by a
vote of 1-5-1. Senator Adams cast the nay vote and Senator
Torgerson was absent.
Senator Pearce offered a motion to move from committee, CS
SB 274 (FIN) with a new fiscal note to be provided by the
department. Senator Adams objected.
Senator Adams spoke to his objection stating his belief that
the legislation was a waste of time. Even if the bill
passed, he didn't believe it would work in the rural areas
he represented. He warned that many of his constituents did
not have the money to pay the fee. He reemphasized the
rural economy and unemployment rate. He felt the change in
withholding PFD's for two years would place a burden on the
families of these individuals.
Co-Chair Sharp requested a roll call. The bill was moved
from committee by a vote of 5-1-1. Senator Adams cast the
nay vote and Senator Torgerson was absent.
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