Legislature(1997 - 1998)
02/18/1998 01:41 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 274 - PROBATION AND PAROLE FEES SENATOR JERRY WARD, sponsor of SB 274, said this bill sets up a procedure for parolees to pay their debt to society. He suggested that this legislation puts responsibility back onto those people causing the problem. He commented there are 4,600 people on probation and parole currently and calculated that if each of these people paid $3.30 per day it would generate 5.5 million dollars. He said also the state needs to look at options to deal with prison overcrowding. He noted currently there is a request for proposal out to send more prisoners out of state. He emphasized that it is not the citizens' fault that people commit crimes and this bill will create a mechanism that will have criminals pay their debt to society. SENATOR WARD said the bill contains a provision for people who cannot afford to pay the $3.30. This provision says those who are incapable of paying will have their permanent fund dividend (PFD) garnished. He said the fee equals the amount of the dividend and the bill was written that way purposefully. SENATOR WARD commented that the citizens should not bear the burden of the cost of incarceration for law breakers, the criminals themselves should bear the cost. He said this is not a large cost and those who do not comply will have their permanent fund dividends attached. He stated this bill is a proper thing to be considered in light of the current tight financial situation faced by the state. SENATOR ELLIS asked if SENATOR WARD knew how long ago a previous fee was repealed. SENATOR WARD replied it was 1984, when he served in the legislature. SENATOR ELLIS asked why he had picked a fee four times larger than the national average. SENATOR WARD replied he chose the amount to be roughly equal to the amount of the permanent fund dividend. MR. CRAIG JOHNSON explained the amendment they had brought. MR. JOHNSON said the amendment was brought forward by the permanent fund division itself, and merely codifies the fact that garnishment of a PFD for the purpose of this bill will not take precedence over reparations for victims of domestic violence. He said this was suggested by the Attorney General and is a technical amendment. SENATOR MILLER moved the adoption of amendment #1. Without objection, it was so ordered. MR. BLAIR MCCUNE, representing the Public Defenders Office, expressed some concerns about the bill. He worried that payment of fees might be required as a condition of parole or probation. His office represents people in parole and probation revocation proceedings and he is concerned that caseloads might increase under this bill. He referred to criminal rule number 39 and rule number 209 of appellate procedure and said these rules require recoupment of costs for appointed counsel. MR. MCCUNE said these rules allow for a judgment to be entered in a civil action, including the garnishment of a dividend, rather than the revocation of the individual's probation or parole. MR. MCCUNE was further concerned that this bill might apply to misdemeanor probation which is generally unsupervised by a probation officer. He suggested the costs lie in supervised, felony probation. Lastly, MR. MCCUNE mentioned section 7 which reads; "the board shall revoke parole"; he believes it would be better to leave the board with more flexibility and not mandate the revocation of parole. MR. MCCUNE also noted that the asterisk fiscal note was the result of the possibility of his office encountering more probation and parole revocation hearings. SENATOR WARD remarked it was quite specific in the bill that it was those who are able to pay and choose not to who would be sent back to jail. He stated this is a revenue generating bill which, if enacted, will generate 5.5 million dollars, roughly the cost of sending 250-300 people out of state to Arizona. He emphasized this is where criminals pay for what they are costing the state. He continued, restating that this is a revenue generating bill and the yearly fee exactly equals a permanent fund dividend. He said, even so, it is not that much and only equals three quarters of an hour of work each day at minimum wage. He concluded that this revenue would free up money for education and other important state expenses. CHAIRMAN TAYLOR asked BLAIR MCCUNE about the automatic revocation of parole and noted that under section 3 the only amendment is to add to discretionary items that the judge may impose. CHAIRMAN TAYLOR said it reads; "may be required to pay" and so is discretionary and would require many steps to revoke parole. He does not see it as a mandate and inquired if MR. MCCUNE did. MR. MCCUNE replied he was looking at section 4 that says "shall require the periodic probation fee to be paid." He said he understands the court can decide conditions of probation/parole but it appears to him, due to section 4, that this is a required condition. His concern is that a person who is unable to pay will have their parole automatically revoked. He is worried about a case where the parole board will not have the discretion to give someone another chance. MS. LYNDA ZAUGG, representing the Department of Corrections, informed the committee that the department does not disagree with the concept of SB 274, but that there is concern with the fiscal impact. MS. ZAUGG explained the issue is complicated. In the late 1980's these fees existed and there was great difficulty collecting them. According to MS. ZAUGG, only ten per cent out of 3,000 were able to pay their monthly fees. She said the department is looking at the current population of 4,100 active parole cases and their potential for payment. MS. ZAUGG stated that in the 80's offenders were allowed to perform community work service in lieu of their monthly fee. This is not an option under SENATOR WARD'S bill. She said these factors make it difficult to predict how much would actually be collected under this bill. MS. ZAUGG said the fee was repealed in 1989 primarily because it was a hardship to offenders, particularly those in rural areas without a strong cash economy. She mentioned that the bill does take into consideration indigence but requires hearings to determine if an offender is indigent. These hearings will be a costly, time consuming process, again, especially for offenders in rural areas. She said the fees under this bill are much higher than the old fees and considerably higher than anywhere else in the nation. MS. ZAUGG said this bill allows for probation to be revoked in cases where the fee is not paid and this will result in probationers returning to an expensive institutional setting. She asserted that this bill requires the revocation of parole by the parole board unless the parolee shows by a preponderance of the evidence that he or she is unable to pay. According to MS. ZAUGG, this does not apply if the offender is indigent; however, in 1989 in Representative Foster's district, 99 per cent of offenders were unable to pay the fee. She cited this as a major factor in the repeal of that fee. She explained that though the bill allows for the garnishment of a PFD, the fee falls ninth in line to those debts that might already bind an offenders PFD. She noted there are currently 4,100 people under active supervision and more than 50 per cent of them have been under supervision for more than one year. She said the importance of this is that a felon who has been incarcerated at any time during a year is not eligible for the dividend. MS. ZAUGG concluded the pool of offenders with a PFD available for attachment is smaller than meets the eye. CHAIRMAN TAYLOR asked if a levy against the permanent fund dividend was utilized in order to collect fees previously and MS. ZAUGG said that was discussed at the time but was not sure if it was done. CHAIRMAN TAYLOR stated it was not part of that bill. SENATOR ELLIS asked if other agencies that might be impacted had been contacted about this bill. SENATOR WARD said part of the problem historically had been collection of the fee and that was why his bill has a third-party collection provision into it. He stated this would help relieve the burden on staff, who should not function as a collection agency. SENATOR ELLIS asked MS. ZAUGG if that meant there would not be any staff time necessary for the Department to implement this bill. MS. ZAUGG responded that it appears there would be time involved but the amount of time is unclear. SENATOR ELLIS inquired about the process of proving indigence. He asked who is required to prove what and if the whole thing is difficult to sort out. LYNDA ZAUGG replied it is always difficult when dealing with an offender expected to provide information on his or her financial situation. She said in this situation people may be resistant to providing information and a fairly elaborate process might be necessary, such is as used in the court system. MR. JIM FREY, on teleconference from Slana, said he did not have a copy of the bill and therefore would not comment. CHAIRMAN TAYLOR explained basically what the bill would do and MR. FREY replied that he thought those people didn't have any money. CHAIRMAN TAYLOR then explained the provision made for those unable to pay and MR. FREY said he'd agree with that. SENATOR WARD asked Ms. ZAUGG about the number of people on probation and parole. He had 4,600 versus her 4,100 and wanted to know what happened to the other 500 people. MS. ZAUGG replied that 4,100 represents the number of active cases; she estimated there are 600 outstanding warrants across the state. She said these people have absconded probation and will have people active in their case once they are rearrested. SENATOR MILLER moved SB 274 as amended out of committee with individual recommendations. Without objection, it was so ordered.