Legislature(1997 - 1998)

03/24/1998 09:15 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
CS FOR SENATE BILL NO. 274(JUD)                                                
"An Act relating to fees for probation and parole."                            
                                                                               
                                                                               
Co-Chair Sharp invited Senator Jerry Ward, sponsor of the                      
bill to join the committee and speak to his request.                           
Senator Ward's testimony was as follows:                                       
                                                                               
"This bill and also I have put in an amendment on it                           
(hopefully it will be presented,) - basically what this                        
does, it enable those people that are causing the cost to                      
government to share in that burden of cost."                                   
                                                                               
"At the beginning, before the amendment, basically let me                      
tell you what it does.  What it does is it puts into place,                    
which has been in place since 1846 and this is not to punish                   
or to inflict punishment. What this is, is to generate                         
revenues to offset those dollars, which the public is now                      
paying.  Every person in this room that is not on probation                    
or parole, and with the amendment hasn't been convicted on a                   
misdemeanor, is sharing the cost and the burden of this."                      
                                                                               
"We have sent letters to all the commissioners asking them                     
to please identify which portions of their budgets goes                        
towards the - and I want to speak on the amendment too as                      
well as the first part. Because that's what led me to it is                    
when I first went into Probation and Parole and realized                       
that there was $8.5 million being spent on this.  Even going                   
through the original bill, at the very highest level it only                   
generates $5.5 million.  That's with 100% participation.                       
Then when I started looking, and one of the bills you just                     
had earlier - we've got a list of all the misdemeanors -                       
under current statutes possession of child pornography under                   
this bill with the amendment except that they would lose                       
their permanent fund dividend."                                                
                                                                               
"There is a lot of misdemeanors.  I don't pretend to                           
understand all of them but I do know that somebody's staff                     
and somebody's legislative office spent a lot of time                          
getting these through and putting them on the books."                          
                                                                               
"If all convicted misdemeanors and all convicted people and                    
all people on probation and parole entered into their share                    
of the cost and if it was 100 percent successful, they would                   
generate $25 million.  This is a revenue-generating bill.                      
That's exactly what it is.  It's set up and the purpose of                     
it is, is to take the permanent fund away from those people                    
that are in this position to off-set the cost of getting                       
them in this position."                                                        
                                                                               
"The cost is the cost of charging, arresting, prosecuting                      
and it flows through the court system, through Public                          
Safety, to Village Public Safety, to Fish and Game, to                         
Transportation, through almost every department there is.                      
We have tried to gather these various costs together - and                     
what is the total cost - and we have been so far been told                     
that it is much too complicated to ever figure that out.                       
But anybody that takes a look at the State's operating                         
budget clearly realized that it's somewhere around $60                         
million in order to do these functions.  That's taking in                      
all the departments there are.  What this does, it enables                     
the people of the State Of Alaska to generate revenue from                     
those people that cause the problem in order to off-set some                   
of those costs."                                                               
                                                                               
"I don't think that we should drop anybody from probation or                   
parole or convicted misdemeanors just because it costs the                     
state more than we could possibly bring in, but however in                     
this time of measuring revenues and measuring results, this                    
is one of the ways of doing it."                                               
                                                                               
"I have been down here for some time and I haven't seen very                   
many revenue-generated mechanisms.  I do believe that we                       
should join in not only with some other states, in having                      
our probation and parole pay for their debt to society and                     
help to reimburse those costs.  But I also feel that this is                   
an appropriate way of doing it."                                               
                                                                               
"We are the only state in the union that does give out a                       
permanent fund dividend. Under the probation and parole at                     
$3.30 per day, it works out to roughly $100 per month, which                   
is equal to our permanent fund dividend.  Even with all the                    
probation and parole people paying for this amount, that                       
does not generate the $8.5 million that's needed."                             
                                                                               
"You'll notice in the legislation we clearly call for                          
professional collectors - third party collections that's                       
because the people that are in parole and probation have not                   
and can not have the capability to collect these, nor should                   
they.  They should do what they are hired to do, which is to                   
be in charge of probation and parole, not to be collectors.                    
There are third party independent people - companies that do                   
this for a living and can do it quite well.  That is who we                    
should have do it.  We've had several of them contact our                      
office and they are available."                                                
                                                                               
"Coming into this, when I started to realize the tremendous                    
cost that is put upon public safety, the departments of law,                   
the public defenders office, and all facets of government.                     
That's where the proposed amendments for misdemeanors to be                    
applied at this time because they share in the burden of the                   
cost too.  They too have a debt to society and if they were                    
not convicted they would not be causing us to have that                        
portion of government that need to be funded at a certain                      
level."                                                                        
                                                                               
"Right now the way this bill presently is and with the                         
amendment, if every person were to pay it would generate $25                   
million.  Because of child support payments and other things                   
that come in line before these and because of multiple                         
attachments that of course will not come to be.  But it                        
should at least hit the 50 percent level of $12 million."                      
                                                                               
"I believe whole-heartedly that this debt to society that                      
these people should share in that burden.  If our burden of                    
cost is too high to charge, prosecute and convict all of                       
these people, then we should re-look at our underlying                         
statutes as to their worthiness.  But as it stands right                       
now, in the reality of the day, what this is, this is a                        
repayment of a debt to society instead of having those                         
people that did not cause this pay the debt.  That's what                      
this bill is about.  It's a revenue-generating bill."                          
                                                                               
"With that I have Craig Johnson of my office who has been                      
working on this legislation and we'll be glad to try to                        
answer any questions that we can."                                             
                                                                               
That concluded Senator Ward's opening remarks.                                 
                                                                               
Senator Adams questioned the collection of fees.  He                           
referred to Section 3 and Section 4.  Section 3, lines 13                      
and 14 he read into the record, "While on probation among                      
the conditions of probation, the defendant may be                              
required..."  He pointed out that it was not mandatory that                    
the defendant have to pay according to the language, because                   
of the use of the word "may".  However, he jumped to Section                   
4 and read the language stating that, "the court granting                      
probation shall require a periodic portion."  Therefore, he                    
wondered if there was a conflicting statement between the                      
two, because one said, "shall" and the other "may".                            
                                                                               
Senator Ward told the committee his intention was for                          
"shall".  He believed the "shall" was overriding.  Senator                     
Adams said he didn't see the requirement as mandatory                          
because of the language.                                                       
                                                                               
Senator Adams continued his questioning and directed                           
attention to the collection of the permanent fund dividends.                   
He referred to Page 5, Section 8, the exemptions and where                     
this collection was prioritized behind such obligations as                     
child support, court-ordered restitution, defaulted                            
scholarship loans, court-ordered fines, judgements, debts to                   
state agencies, domestic violence statutes.  The way this                      
bill read, the parole/probation obligation would be number                     
eight in line, he observed.  He also pointed out that felons                   
don't receive a dividend so he didn't see how the state                        
would recover $12 million.                                                     
                                                                               
Senator Ward responded that was why he added the misdemeanor                   
offenses to the legislation.  Their cost to the state was                      
every bit as much.  He warned that the state would need to                     
either reduce the cost of misdemeanors or let them help pay                    
for the debt.  He stressed that they were being convicted,                     
there was a cost and the citizens were paying for it.  He                      
apologized to the chair for speaking to an amendment that                      
had not been offered.  He gave as his reason that it had                       
become clear to him that the system was not remotely                           
starting to pay even a portion of what was being demanded of                   
the citizens.  He emphasized that he was trying to get those                   
people who were burdening society with these costs to pay                      
for a portion of their debt to society.  He stressed that                      
this was not a punishment but a revenue-generating                             
legislation.  Instead of giving them a permanent fund                          
dividend, let those funds be directed toward reducing the                      
parole/probation costs, he said.                                               
                                                                               
Senator Donley asked Senator Ward to refresh his memory of                     
the current requirements.  He thought that for a person                        
imprisoned for a felony then released; in the year they got                    
out and for one following year would not receive a permanent                   
fund dividend.  After that they would be eligible to receive                   
the dividends again. Senator Ward confirmed that, but said                     
that under this legislation, as long as they were on                           
probation or parole there was a cost to the state and they                     
would be liable to pay the equivalent of the PFD.                              
                                                                               
Senator Ward continued, restating much of his testimony.                       
                                                                               
Senator Pearce, for discussion purposes, moved for adoption                    
of Amendment #1 and asked Senator Ward to speak to that                        
amendment.  Senator Adams objected to the motion so the                        
committee could get an explanation from the sponsor.                           
                                                                               
Senator Ward started speaking to a different amendment,                        
which had not yet been offered.  After he was corrected, he                    
directed CRAIG JOHNSON from his office to speak to Amendment                   
                                                                               
Mr. Johnson explained that the amendment was initially                         
introduced in the Senate Judiciary Committee at the request                    
of the Permanent Fund Division.  The Legislative Affairs                       
Agency's Legal Services' staff had concerns with the word                      
"except" and it was their belief that when language said                       
"except for number eight in prior state agencies", the                         
Department of Corrections was a state agency.  In their                        
interpretation, that eliminated DOC's ability to collect                       
money under this law.  Therefore this amendment was offered                    
to correct Section 8.  He explained that this was just a                       
housekeeping amendment.                                                        
                                                                               
Senator Adams requested that the new language be read in                       
full, incorporating the changes from the amendment.  Mr.                       
Johnson obliged, reading, "A dept owed by an eligible                          
individual to the agency of the state, unless the dept is                      
contested and appeal is pending or the time of limited                         
filing of appeal is not expired, other than for a fee under                    
8 of this subsection."                                                         
                                                                               
Senator Adams understood the change would read "...a dept                      
other than...owed by an individual".  He asked to have that                    
explained to him.  Mr. Johnson replied that his                                
understanding, the word dept was not in there.  Senator                        
Donley attempted to clarify that this was the section that                     
referred to the fee exemption.  He asked if it was the                         
sponsor's intent to make this a case where the exemption was                   
not available.  Senator Ward said no, and read the changes                     
as, "A debt other than for a fee under 8 of this subsection,                   
owed by an eligible individual..." which was where he felt                     
the change would be inserted.                                                  
                                                                               
Senator Donley still didn't understand if the intent was to                    
make the exemption applicable to this new fee.  He wanted to                   
know why it was mentioned there and also in Section 8.                         
Senator Ward said his understanding was because Corrections                    
was a department.  By stating it there, it put it into                         
chronological order.  Senator Donley realized it was the                       
order of priority.  He further clarified the amendment's                       
intent with regard to the priority.                                            
                                                                               
Senator Adams removed his objection.  He stressed that he                      
still did not believe the state would collect that much                        
money with the priority order as such.                                         
                                                                               
Co-Chair Sharp noted there was no objection to Amendment #1                    
and ordered it adopted.                                                        
                                                                               
Senator Pearce moved for adoption of Amendment #2.  Co-Chair                   
Sharp asked the sponsor for explanation of the amendment.                      
                                                                               
Senator Ward spoke to the amendment as follows.                                
                                                                               
"What Amendment #2 does, and there's approximately 20,000                      
misdemeanor convictions in the State Of Alaska.  I have                        
written a letter to all the commissioners and I haven't had                    
a response yet. Basically what I have asked all of them is                     
you go through this enormous list of misdemeanets all the                      
way from fishing ones to sexual things with corpses and                        
child pornography possession you just spoke on, there's a                      
big list of them.  But, and they cover all the departments                     
with maybe the - I don't know which departments they                           
wouldn't have some effect on."                                                 
                                                                               
"So I've written to all the commissioners and asked them,                      
because they don't have this information, exactly what is                      
the cost of these 20,000 misdemeanants to arrest them, to                      
charge them, to convict them, to fine them, to do whatever                     
it is that's going to be done through the court system, and                    
through Public Safety, through Fish and Game, through                          
Transportation, airport police.  Its a - and all my staff                      
and I've been able to do is look at the total budget and                       
guess.  We've guessed around $60 million."                                     
                                                                               
"As Senator Adams clearly stated and I agree with him, this                    
if enacted 100 percent, the $25 million, I don't believe                       
that it will raise $25 million, but I do believe that this                     
bill with the amendment would raise half of that.  I believe                   
it would raise about $12.5 million.  I think that would go a                   
way towards the people that are causing this debt to society                   
to help repay part of that debt."                                              
                                                                               
"I don't think that we as a society should stop enforcing                      
these laws or take them off the books, because they're there                   
apparently for good reasons, whatever those reasons may or                     
may not have been.  I think that what this does, this is a                     
revenue-generating mechanism."                                                 
                                                                               
"I support this amendment because I don't think those                          
citizens in the State Of Alaska that don't do these, that                      
they should have to pay 100 percent of them.  I think that                     
those people that are actually convicted of them should                        
share in the reimbursement of that debt.  That's what this                     
is."                                                                           
                                                                               
"Also it comes into the same provision of third party                          
collection because I don't believe the state government is                     
capable within their current mission statements of being a                     
collection agency of this type.  There are plenty of third                     
party companies more than willing to step forward and take                     
care of this process."                                                         
                                                                               
"With that I would like the committee to at least consider                     
this as what it is very clearly - a revenue-generating piece                   
of legislation for those who owe a debt to society."                           
                                                                               
Senator Adams objected to the amendment.  The original bill                    
affected felons, but this amendment adds misdemeanants.  He                    
felt this went beyond the bill.  He asked the committee how                    
many of us had gone to a state park and perhaps stayed over                    
our time limit and perhaps got a citation.  He pointed out                     
that would perhaps be a misdemeanor.  He gave another                          
example of getting off a plane and illegally parking at the                    
Juneau Airport, which would also be a misdemeanor.  He                         
stressed the need to look at adding the misdemeanor.  He                       
noted other misdemeanors such as subsistence violations,                       
drinking alcohol on an election day or disorderly conduct.                     
He suggested that if the misdemeanor clause was inserted to                    
the bill it either need to be returned to the Judiciary                        
Committee or else this committee would need to site each                       
misdemeanor that would be affected.                                            
                                                                               
Senator Pearce shared a list of all the misdemeanor crimes                     
that the sponsor had handed out for committee members.                         
Senator Ward concurred with Senator Adams that possession of                   
child pornography and subsistence fin fishing with                             
unidentifiable gear would be categorized the same under this                   
legislation and both defendants would lose their PFDs.                         
However, he felt the simple fact was that 20,000                               
misdemeanants cost this state approximately $60 million.  He                   
added that if some of the crimes should be taken off the                       
list of misdemeanors, he hoped that some of the people                         
convicted of those crimes would lobby the Legislature to                       
have them removed.  Meanwhile, he felt that somebody still                     
had to pay the associated costs and he didn't want to pay                      
for them.  The citizens he represented no longer wanted to                     
pay for them either, he stated.  He continued speaking to                      
the potential need to have some of the misdemeanor offenses                    
taken off the books, referring to the costs involved.                          
                                                                               
Senator Donley tried to understand the pattern.  Citing                        
Sections D1 and D2, which talked about convictions of a                        
misdemeanor and incarceration as a result of the                               
convictions, he asked if both would have to occur before the                   
offenders would lose their dividend or would the mere                          
conviction be sufficient to cause the loss of the PFD.                         
Senator Ward stated the conviction was the method by which                     
the dividend would be fore-fitted.  Senator Donley asked for                   
further clarifications on the meaning of the two sections.                     
                                                                               
He continued, asking about AS 11.81.900 that was referenced                    
in Line 18.  Mr. Johnson explained that under the current                      
law, if a person were convicted of three misdemeanors he                       
would lose his permanent fund.  The proposed amendment would                   
in part repeal that portion of the language, because the PFD                   
would be denied after the first conviction.  Senator Donley                    
then pointed out that the PFD would be taken away in the                       
same manner as for a felony conviction, for the first year.                    
This was not permanent, according to Senator Ward, unless                      
they commit another crime and are convicted.                                   
                                                                               
Senator Donley asked how Amendment #2 related to the on-                       
going fee provision.  Would this replace the version in the                    
bill or would it be an addition, he wanted to know.  Mr.                       
Johnson said it would be a separate section and would be in                    
addition to the existing fee structure.  The bill was a                        
vehicle to get PFDs from misdemeanants.  It did not relate                     
to probation and parole, he said.                                              
                                                                               
Senator Donley expressed that he agreed with the system                        
placed forth in the amendment because it was clean, it                         
didn't have administrative cost problems and the state                         
wouldn't have to defend these people.  It would just say                       
they were not eligible without needing to provide public                       
defenders.  He liked Amendment #2 and suggested expanding on                   
it to clean up some of the other provisions in the bill.                       
                                                                               
Senator Ward responded to those comments.  He felt the                         
people on probation and parole needed to understand their                      
responsibility in paying for what they had done.  He thought                   
those people should pay for their costs of probation and                       
parole.  He believed that helped them.  He told the                            
committee that was his beginning thrust of adding                              
responsibilities.  He referred to boot camps and getting up                    
in the morning.  He stated that responsibility was a good                      
thing, which was how this legislation started out.                             
                                                                               
Senator Donley said he agreed with the philosophy, but he                      
thought the process had not gone far enough with regard to                     
felony convictions.  When a person was convicted of a                          
felony, they only lose their dividend for one year under                       
existing law.  He said he would be interested in extending                     
beyond that.  He wanted to deny PFD for a misdemeanor                          
conviction and to extend the time for a felony conviction.                     
                                                                               
Senator Ward noted that a large percentage of people who had                   
been convicted of a felony have gone on probation, those                       
were the people he was targeted.  He talked about efforts of                   
putting people behind bars and that it didn't work to                          
rehabilitate offenders.  He spoke about reentering the                         
community and repaying and accepting responsibility.                           
                                                                               
Senator Donley asked if the state could pre-garnish the PFD                    
for felons who were on probation.  He noted a provision in                     
the legislation allowing for an individual who claimed they                    
were unable to make the payments.  He wanted to know how                       
that would relate to the garnishment of the dividends.  He                     
felt that obviously the money was available by the issuance                    
of the PFDs, but would some individuals get the dividend,                      
blow the money on something else and when it came time to                      
pay this debt, claim they couldn't make the payment.  He                       
wondered if there was a way for the state to collect the                       
money first and avoid the whole problem.                                       
                                                                               
Senator Ward defended the fore-mentioned provision, stating                    
it was inserted to avoid becoming a debtor jail.  He                           
stressed that if someone was truly unable to pay this, he                      
did not want to see that person put back into jail.  Senator                   
Donley responded that he understood the provision, but                         
wondered if there was a way to avoid getting into the                          
position of granting the dividend, the defendant spending                      
the funds on something else, then saying they couldn't pay                     
the probation fee.  Senator Ward assured him that this                         
legislation would prevent the PFD from being issued to the                     
probation/parolee.  He said that with electronic transfer,                     
the money would never get into their hands.  Senator Donley                    
clarified that there was an anticipatory garnishment that                      
would occur.  Senator Ward explained that once the                             
individual was in the system, there would be a procedure                       
that would direct the funds to the state.  He further spoke                    
to the costs charged the probation/parolee.  He wanted those                   
people to clearly know they were repaying their debt to                        
society.                                                                       
                                                                               
Senator Donley said he would like to work with the sponsor                     
and his staff with changing this legislation.                                  
                                                                               
There was discussion as to where the committee was with                        
regard to the amendment.  It was determined Amendment #2 had                   
been moved and they were in discussion on that amendment.                      
                                                                               
Senator Ward brought back to the attention of the members                      
his request to the commissioner to identify the actual costs                   
incurred by felons and misdemeanants.  He admitted that his                    
figure of $60 million was a guess.  He felt that if the                        
departments were to report back actual figures, there would                    
be a better understanding of what the citizens were paying                     
for.                                                                           
                                                                               
Co-Chair Sharp said he had questions he was holding until                      
they came to discussion on the bill.                                           
                                                                               
Senator Adams asked Senator Ward if this amendment had been                    
offered in the Senate Judiciary Committee.  Senator Ward                       
replied that no, he didn't come up with the amendment until                    
after the bill had moved from that committee.  He expounded                    
further on his reasons for adding misdemeanors to the                          
legislation.  He said the matter was brought up with phone                     
calls to his office.  Another reason was the crime of                          
possession of child pornography.                                               
                                                                               
Co-Chair Sharp interrupted announcing that he would like to                    
hear from the Department of Corrections, otherwise he would                    
put the bill aside for a future meeting.  First he intended                    
to complete action on the amendment before the body.                           
                                                                               
Senator Adams continued to speak against Amendment #2.  He                     
read some other misdemeanor offenses that he felt were                         
unworthy of forfeiture of a PFD.  Senator Ward countered;                      
arguing that constituents guilty of those offenses could                       
lobby to have them removed from the list of misdemeanors.                      
                                                                               
Senator Pearce observed that Senator Donley had an interest,                   
not only in Amendment #2 but also with some further changes.                   
In the interest of time, she offered to remove her motion to                   
adopt Amendment #2 so he could get with the sponsor and the                    
department to incorporate those changes.                                       
                                                                               
Senator Donley stated that he liked Amendment #2 and did not                   
object to it.  Senator Pearce stressed it was clear the                        
committee would not get through the legislation in the time                    
allotted for this meeting.  She deferred to the co-chairs                      
call of how he wished to proceed on the motion.                                
                                                                               
Co-Chair Sharp called for a vote on Amendment #2.  It failed                   
by a three to three vote with Senators Donley, Phillips and                    
Sharp voting in favor. Senator Parnell was absent during the                   
roll call.                                                                     
                                                                               
Co-Chair Sharp voiced a concern with the high figures                          
included in the fiscal notes.  He regretted the committee                      
did not have a chance to hear from the DOC on this                             
legislation.  He ordered the bill held in committee.                           
                                                                               

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