Legislature(1997 - 1998)
04/17/1998 09:25 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.