Legislature(2005 - 2006)SENATE FINANCE 532
04/20/2006 01:00 PM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SJR19 | |
| SB271 | |
| SB10 | |
| SB305 | |
| Adjourn | |
| SB305 |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 19 | TELECONFERENCED | |
| += | SB 271 | TELECONFERENCED | |
| + | SB 10 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 305 | ||
1:35:12 PM CS FOR SENATE BILL NO. 10(JUD) "An Act relating to civil liability for damage to or destruction of property by minors; relating to court revocation of a minor's privilege to drive; relating to restitution for certain acts of minors; and amending Rule 60, Alaska Rules of Civil Procedure." This was the first hearing for this bill in the Senate Finance Committee. Senator Dyson, co-sponsor of this legislation with Senator Gretchen Guess, told of significant vandalism perpetrated by minors. He and Senator Guess combined their efforts to address this issue. 1:36:35 PM Senator Dyson explained this bill would continue efforts of establishing a "common law" system to recompense victims for damages against them and restore the victim to a pre-offense condition. The trend is "moving away from" a system practiced in American law in which "you pay your fines to the king." Senator Dyson qualified that the provisions of this bill could appear "awkward", but assured they would ensure that the person who causes the property damage would be the "first one up" to recompense the victim. This would also apply to minors who commit these offenses. A minor would be responsible for the first $5,000 in restitution. The minor offender's driver's license could be revoked, Alaska Permanent Fund Dividend garnished, and a payment schedule imposed that could extend to beyond their reaching the age of 18 until the debt is satisfied. Senator Dyson noted that if the minor offender has a parent, that parent could be held liable for restitution of that portion of damages that exceed $5,000, with a maximum liability of $15,000. Liability for that portion of damages exceeding $20,000 would revert to the minor who would be required to pay the restitution until the victim was fully compensated. 1:38:44 PM Senator Dyson addressed the issue of an "uncontrollable child", informing that this legislation includes a provision to exempt parents from this liability if the parent notified authorities that the child was a runaway. In these instances, the minor would be liable for restitution of all damage costs. For those minors held in State custody, this bill would exempt foster parents from the liability with the State paying the parental obligation. Senator Dyson stressed that someone must be held responsible for repaying the victim. 1:41:21 PM CATHY HANSEN, Attorney, Office of Victims' Rights, Legislative Affairs Agency, testified via teleconference from an offnet location that this legislation includes several positive aspects to assist in securing restitution for victims. The Office of Victims' Rights (OVR) supports the concept of consistency involving laws that affect the ability of a crime victim to obtain restitution. The cost of the damage and the ability of the victim to collect restitution should not depend on whether a juvenile is sentenced to informal probation, adjudicated as a delinquent or whether the offender or his parents are sued in instances in which the State chooses to not prosecute the offence. Ms. Hansen reported that an important part of the criminal process for victims is restitution. Victims often "pay a high emotional price" and should not additionally be required to bear the economic cost of the juvenile delinquent acts. Victims must bear the financial cost upfront and must often wait months or years for payment. This delay includes the process of adjudication of the offender and collection. Some victims are never paid. Ms. Hansen reminded that voters in 1994 approved an amendment to the Alaska Constitution that instituted a constitutional right to victims' restitution. The OVA supports full restitution for victims and prompt payment when possible, but could not support any legislative change that would not promote this goal. Ms. Hansen therefore expressed concerns with the language of this bill that would limit a juvenile's responsibility to $5,000 of the total cost of damage. The victims should be paid "first". Parents paying on behalf of the juvenile have the ability to withhold dividends and obtain repayment in other manners. Requiring the juvenile to make the payment directly could interfere with the victim's right to obtain restitution. Ms. Hansen furthered that parental liability should not be limited to $15,000, especially if the parent has the financial ability to pay more. Making the parent totally responsible for the restitution would provide incentive to the parent to ensure the debt is paid. 1:48:00 PM Senator Dyson asked if these concerns were raised when this bill was heard by the Senate Judiciary Committee. Ms. Hansen answered they were, reiterating notes from her testimony provided to that committee. 1:48:41 PM STACY STEINBERG, Chief Assistant Attorney General, Statewide Section Supervisor, Collections and Support Section, Civil Division, Department of Law, testified via teleconference from Anchorage that the Section collects restitutions in juvenile delinquency cases that have undergone the formal adjudication process in which the court has ordered a restitution judgment. The Collection and Support Section does not become involved in informal restitution cases. She was available to speak to the Department's ability to collect restitutions for victims under the provisions of this bill. Ms. Steinberg directed attention to Section 13 of the Senate Judiciary Committee substitute, which would insert new subsections to AS 47.12.120 and pertaining to restitution in formal juvenile delinquency cases. Under the provisions of the new subsections, collecting restitution would take longer and would require more resources of the Department to collect the same amount of money. Ms. Steinberg continued that the provisions of Section 13 would eliminate joint and severable liability between the juvenile and the parent and would also establish a structure in which liability would be divided between the juvenile and the parent. Ms. Steinberg explained that under the existing joint and severable liability procedure, a court order for the juvenile to pay $5,000 in damages also holds the parent responsible. The Department could collect the entire amount or any combination of the entire amount from either parent or the juvenile, depending upon which party has the financial resources. Ms. Steinberg gave an example of how the provisions of this legislation would be executed "in the practical world". Under the proposed system, collection of the $5,000 could only be received from the juvenile. Approximately two-thirds of the cases the Section handles involve $5,000 or less. Generally, the juvenile does not have many financial resources and payment is primarily secured through garnishment of Alaska Permanent Fund dividends. Under the existing system, in situations in which the juvenile and parents have limited financial resources, up to three dividends could be garnished each year; one from each parent and one from the juvenile, until the debt is paid. The proposed system would only allow for garnishment of the juvenile's dividend. This would extend the amount of time before the victim is recompensed from approximately two years to five years for a restitution of $5,000. Ms. Steinberg explained that the Collections and Support Section currently "opens one file" for each claim. Under the proposed system, three files would be necessary. More resources would be required to collect the same amount of restitution. The fiscal note reflects this in listing the addition of a paralegal or legal assistant position at a cost of $110,000 per year, in addition to approximately $6,000 in the first year to purchase equipment and other necessities for the position. Ms. Steinberg continued that the Section would be required to establish and administer payment plans for juveniles, a process that requires more time and resources than a one-time collection. 1:56:35 PM Senator Dyson appreciated the witness' comments about joint and severable liability. In reality, many of the cases involve a single parent who is "struggling" to raise the child. He understood that the existing system allows collection from a non-custodial parent who could have little involvement in the child's life. 1:57:14 PM Ms. Steinberg responded that the Department could only collect from a parent who is listed in the judgment. In some cases two parents are listed, and other cases only list one parent. The Department does not receive information explaining why two parents are not listed in a judgment. 1:58:29 PM Senator Dyson had anticipated Ms. Steinberg would speak to the public policy issue of whether collecting from both parents is appropriate. However, he understood the witness' testimony to expound on the issue of effectively and efficiently collecting judgments. Ms. Steinberg affirmed. 1:59:14 PM Senator Dyson agreed that a provision requiring the juvenile offender to pay the first $5,000 of restitution could delay the process of recompensing the victim. He asked if Ms. Steinberg could suggest an alternative amount. Ms. Steinberg responded that generally juveniles do not have the necessary financial resources to fulfill the restitution obligation. Juveniles should be attending school and at most, would have a part-time job. The most common means of collection of restitution from juveniles is through garnishment of Alaska Permanent Fund dividends. She preferred restitution be ordered as a joint judgment from the juvenile and the parent. Otherwise, she would suggest the juvenile be held responsible for a lesser amount. 2:01:00 PM Senator Dyson emphasized that the witness's suggestions were based on practicality. However, the Alaska Constitution stipulates the responsibility for rehabilitating juvenile offenders. Holding them responsible for restitution could assist in their rehabilitation. He asked if personal property, such as vehicles and electronic equipment could be confiscated from the offenders. 2:01:47 PM Ms. Steinberg stressed that the Collections and Support Section does not have the resources to undertake that sort of collection activity. Even if able to obtain a court order to confiscate property, the Section does not have a system to sell the property and give proceeds to the victim. 2:02:27 PM Senator Olson asked about instances in which an offender, upon realizing the Alaska Permanent Fund dividend would be garnished, does not apply to receive the dividend. Ms. Steinberg replied that in most instances the juvenile does apply to receive the dividend. The court could order that an application be filed and a provision requiring such a court order included in this legislation would be beneficial. She would research the number of instances in which the juvenile did not apply for a dividend knowing it would be garnished. 2:04:26 PM Senator Dyson cited Section 7 of the committee substitute, which allows the court to order an offender to apply for the dividend for the purpose of satisfying restitution. 2:05:24 PM GAIL VOIGTLANDER, Chief Assistant Attorney General, Statewide Section Supervisor, Torts and Worker's Compensation Section, Civil Division, Department of Law, testified via teleconference from Anchorage to Section 5 and Section 6 of the committee substitute. Section 5 would amend AS 34.50.020(a) to allow a "governmental organization" to recover damages in addition to a private party and inserts language providing for the allocation of the first $5,000 of liability to the juvenile, up to $15,000 liability to the parent, and any additional liability to the juvenile. Section 6 would repeal and reenact AS 34.50.020(b) to provide for State liability for an act of an unemancipated minor in the custody of the State. The Torts and Worker's Compensation Section has been contacted by victim's rights organizations expressing concern that these provisions would hamper restitution efforts. Ms. Voigtlander stated this legislation would create a "strict liability" for parents. Alaska case law includes two case rulings establishing the parental responsibility for addressing behavioral problems of their children. However, some minors, especially when older, could be difficult to control. Ms. Voigtlander pointed out that foster parents and others overseeing juveniles in State custody would not be held liable for property damage. Only a small percentage of juveniles held in State custody are institutionalized and under the direct supervision of State employees. Most are in the care of foster parents, other relatives, or parents. The State is only involved in the placement of these children and not in oversight of their behaviors. Therefore, she questioned the State's financial liability for damages inflicted by a juvenile while held in State custody. Ms. Voigtlander stated that under the provisions of this legislation, a juvenile could be ultimately held liable for more than $20,000. This debt could provide a disincentive for offenders to improve themselves and secure a good job. Ms. Voigtlander pointed out that the language of the Senate Judiciary Committee substitute would not provide clarity in exempting foster parents, "runaway" shelters, and other similar care givers, from liability. Ms. Voigtlander informed that existing regulation provides that foster parents in certain circumstances could request up to $5,000 restitution from the Department of Health and Social Services for damages caused by a juvenile in their care. This bill would eliminate this ability and require foster parents to seek recompension from the juvenile. 2:13:53 PM LARRY KREJCI testified via teleconference from Kenai, on behalf of himself and his wife, Olga. They have ten children, all of whom have been home-schooled and receive "good grades". One daughter, however, left the house without their knowledge or permission and was subsequently date raped. Since that experience, this daughter's behavior changed. She would run away to Anchorage, overdosed on drugs and was sexually active. They attempted to help her and arrange for counseling, but with no success. Police officers could return her home, but the parents could not legally detain her in the house. They had her driver's license revoked, although she indicated intent to drive regardless and ultimately wrecked her car. He was concerned about their liability for her actions. 2:18:06 PM TONY NEWMAN, Program Officer, Division of Juvenile Justice, Department of Health and Social Services, introduced himself and read his testimony into the record as follows. The Division appreciates any effort to assist it in its mission to hold juvenile offenders accountable for behaviors that cost Alaskans emotional and financial difficulty. We've appreciated the co-sponsor's willingness to consult and work with us to try and create a bill that enhances juvenile accountability. The mission of the Division of Juvenile Justice, as described in AS 47.12.010, is to promote a balanced juvenile justice system that imposes accountability of juvenile offenders, equips juvenile offenders with the skills needed to live responsibly and productively, and also affords protection and redress to victims. It is this third piece - promoting the safety and restoration of victims and communities - that we are concerned is jeopardized by this bill. The restitution payment structure set up by the bill (with the YOUTH ONLY is responsible for the first $5,000 in damages, the parent for the next $15,000, and the YOUTH ONLY responsible for any remainder) will likely slow down the speed with which victims are repaid for damages and will not encourage youth and their parents to work together to address the damages caused by delinquent acts. Whether a juvenile case is managed informally or formally, the provisions of the bill related to juvenile restitution removes the current joint and [severable] liability system that encourages parents and youths to work together to see that restitutions to victims are repaid promptly and in full. While this conceivable my have the effect of holding juveniles more directly and individually accountable to their victims, in the end it will result in victims having to wait for the youth to gather, either through permanent fund dividend payments or through work, the money. Imagine a youth who has committee $3,000 in damage. Under current statute, Juvenile Justice staff or the courts are able to order and collect that restitution directly from parents or the courts are able to order and collect that restitution directly from parents and the youth at once. Even if the youth and parent have no other source of cash income, they'd be able to repay most (if not all) of that restitution within a year by together using their permanent fund dividends. If you remove the requirement that parents participate, the victim would now have to wait three years for the youth to make annual payments of approximately $1,000 each. So: while we support efforts to hold youth accountable, we are concerned about doing this at a cost to victims. AS 47.12.010, the statute describing the goals and purpose of the state's juvenile justice system, states that one of Alaska's goals is to "ensure that victims of crimes committee by juveniles are afforded the same rights as victims of crimes committed by adults". This bill contradicts that statute by providing a restitution repayment scheme that will take longer for victims of juvenile crimes to be repaid than victims of crimes by adults, and as such, gives us serious concern. An additional concern with the bill is that related to driver's license revocations. The bill states that a juvenile formally adjudicated for any delinquent offense shall have their driver's license revoked. (Currently, driver's licenses shall be revoked only for minor consuming violations, misconduct involving a controlled substance, and offenses involving the illegal use or possession of a firearm.) The Division is unaware of any evidence linking effectiveness of driver's license revocations with reducing offenses that have nothing to do with driving. The Division has spent the past few years focusing and investing heavily in research-based approaches to work with delinquent youth. Legislation that imposes far-reaching punitive measures without regard to whether the proposal has been linked to reduction in offenses is inconsistent with the mission of the Division and a data-driven approach. I want to re-emphasize that the Division takes its mission of holding juvenile offenders accountable seriously. We have worked to see that juvenile offenders managed through informal processes have repaid over 90% of the restitution payments owed to victims over the past several fiscal years; and we have worked closely with the Department of Law, collections unit to ensure that restitutions ordered through the formal court system are repaid promptly and in full. The Division is eager to work with the Legislature to explore ways that further increase accountability for juvenile offenders in ways that are compatible with out obligation toward victims and the community. 2:22:14 PM Senator Dyson asked if the witness intended to infer that no evidence exists to demonstrate that revocation of a juvenile offender's driver's license would motivate them to repay their debt. Mr. Newman clarified that evidence is not available supporting a theory that revocation would result in behavior changes. 2:23:47 PM Senator Dyson requested Committee members share concerns and suggestions regarding this legislation with him. Co-Chair Green ordered the bill HELD in Committee. AT EASE 2:24:10 PM / 2:32:02 PM
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