Legislature(1997 - 1998)

02/18/1998 01:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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fee was repealed.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                    
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              
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.              

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