Legislature(1997 - 1998)

04/17/1998 09:25 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 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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