Legislature(1997 - 1998)
05/07/1998 04:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE May 7, 1998 4:15 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 274(FIN) am "An Act relating to fees for probation and parole; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; and relating to notice requirements relating to appropriations from the permanent fund dividend fund to the office of victims' rights." - MOVED HCS CSSB 274(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 319(RLS) "An Act relating to arbitration; amending Rules 57(a) and 77(g), Alaska Rules of Civil Procedure; and providing for an effective date." - MOVED HCS CSSB 319(JUD) OUT OF COMMITTEE SENATE BILL NO. 17 "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)." - MOVED SB 17 OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: SB 274 SHORT TITLE: PROBATION AND PAROLE FEES SPONSOR(S): SENATOR(S) WARD, Pearce Jrn-Date Jrn-Page Action 2/04/98 2392 (S) READ THE FIRST TIME - REFERRAL(S) 2/04/98 2392 (S) JUD, FIN 2/18/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/18/98 (S) MINUTE(JUD) 2/19/98 2574 (S) JUD RPT CS 3DP 1NR SAME TITLE 2/19/98 2574 (S) DP: TAYLOR, MILLER, PEARCE NR: ELLIS 2/19/98 2574 (S) INDETERMINATE FN TO SB & CS (ADM) 3/24/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/16/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/16/98 (S) FIN AT 4:30 PM SENATE FINANCE 532 4/17/98 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/21/98 (S) RLS AT 12:15 PM FAHRENKAMP RM 203 4/21/98 3411 (S) FIN RPT CS 4DP 1NR 1DNP NEW TITLE 4/21/98 3411 (S) DP: SHARP, PEARCE, PHILLIPS, DONLEY; 4/21/98 3411 (S) NR: PARNELL; DNP: ADAMS 4/22/98 3432 (S) FN TO CS (COR) 4/21/98 3411 (S) PREVIOUS INDETERMINATE FN APPLIES (ADM) 4/22/98 3435 (S) RULES TO CALENDAR 4/22/98 4/22/98 3438 (S) READ THE SECOND TIME 4/22/98 3438 (S) FIN CS ADOPTED UNAN CONSENT 4/22/98 3438 (S) AM NO 1 ADOPTED UNAN CONSENT 4/22/98 3438 (S) ADVANCE TO THIRD READING FLD Y14 N5 E1 4/22/98 3439 (S) THIRD READING 4/23 CALENDAR 4/23/98 3463 (S) READ THE THIRD TIME CSSB 274(FIN) AM 4/23/98 3463 (S) PASSED Y17 N1 E1 A1 4/23/98 3463 (S) LINCOLN NOTICE OF RECONSIDERATION 4/24/98 3489 (S) RECON TAKEN UP - IN THIRD READING 4/24/98 3489 (S) RETURN TO SECOND FOR AM 2 UNAN CONSENT 4/24/98 3489 (S) AM NO 2 OFFERED BY LINCOLN 4/24/98 3489 (S) AM NO 2 FAILED Y4 N12 E3 A1 4/24/98 3490 (S) AUTOMATICALLY IN THIRD READING 4/24/98 3490 (S) PASSED ON RECONSIDERATION Y13 N3 E3 A1 4/24/98 3492 (S) TRANSMITTED TO (H) 4/27/98 3271 (H) READ THE FIRST TIME - REFERRAL(S) 4/27/98 3271 (H) JUDICIARY, FINANCE 5/05/98 (H) JUD AT 1:00 PM CAPITOL 120 5/05/98 (H) MINUTE(JUD) BILL: SB 319 SHORT TITLE: ARBITRATION SPONSOR(S): SENATOR(S) PHILLIPS Jrn-Date Jrn-Page Action 2/16/98 2528 (S) READ THE FIRST TIME - REFERRAL(S) 2/16/98 2528 (S) L&C, JUD 3/10/98 (S) L&C AT 3:45 PM FAHRENKAMP RM 203 3/10/98 (S) MINUTE(L&C) 3/12/98 (S) L&C AT 1:30 PM FAHRENKAMP RM 203 3/12/98 (S) MINUTE(L&C) 3/13/98 2859 (S) L&C RPT CS 3NR SAME TITLE 3/13/98 2859 (S) NR: LEMAN, MACKIE, HOFFMAN 3/13/98 2859 (S) ZERO FISCAL NOTE TO SB & CS (LAW) 4/01/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 4/01/98 (S) MINUTE(JUD) 4/02/98 3112 (S) JUD RPT 1DP 4NR (L&C) CS 4/02/98 3112 (S) DP: TAYLOR; NR: ELLIS, PARNELL, 4/02/98 3112 (S) MILLER, PEARCE 4/02/98 3112 (S) PREVIOUS ZERO FN (LAW) 4/09/98 (S) RLS AT 11:15 AM FAHRENKAMP RM 203 4/09/98 (S) MINUTE(RLS) 4/15/98 3262 (S) RULES TO CALENDAR 4/15/98 4/15/98 3272 (S) READ THE SECOND TIME 4/15/98 3272 (S) L&C CS ADOPTED UNAN CONSENT 4/15/98 3272 (S) ADVANCED TO THIRD READING UNAN CONSENT 4/15/98 3272 (S) READ THE THIRD TIME CSSB 319(L&C) 4/15/98 3272 (S) FAILED PASSAGE Y10 N9 E1 4/15/98 3273 (S) PHILLIPS NOTICE OF RECONSIDERATION 4/16/98 3295 (S) RECON TAKEN UP - IN THIRD READING 4/16/98 3295 (S) RETURN TO RLS COMMITTEE 4/21/98 3418 (S) RULES TO CALENDAR ON RECONSIDERATION 4/21/98 3418 (S) IN THIRD READING ON RECONSIDERATION 4/21/98 3418 (S) PASSED ON RECONSIDERATION Y15 N5 4/21/98 3419 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 4/21/98 3419 (S) COURT RULE(S) FLD Y13 N7 4/21/98 3419 (S) MTN TO RESCIND ACTION FLG COURT RULE CHG 4/21/98 3419 (S) HELD WITH RESCIND MOTION TO 4/22 CAL 4/22/98 3442 (S) RESCIND MOTION WITHDRAWN UNAN CONSENT 4/22/98 3442 (S) MOTION TO RESCIND ACTION IN PASSING 4/22/98 3442 (S) RESCIND ACTION ADOPTED UNAN CONSENT 4/22/98 3443 (S) RETURN TO RULES COMMITTEE 4/29/98 (S) RLS AT 12:20 PM FAHRENKAMP RM 203 4/30/98 (S) RLS AT 11:40 AM FAHRENKAMP RM 203 4/30/98 3626 (S) RLS RPT W/CS AND CALENDAR 4/30/98 4/30/98 3626 (S) PREVIOUS ZERO FN APPLIES (LAW) 4/30/98 3633 (S) RETURN TO SECOND RDG FOR SPECIFIC AM 4/30/98 3633 (S) RLS CS ADOPTED UNAN CONSENT 4/30/98 3633 (S) AUTOMATICALLY IN THIRD READING 4/30/98 3633 (S) PASSED ON RECONSIDERATION Y14 N5 E1 4/30/98 3634 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 4/30/98 3634 (S) COURT RULE(S) SAME AS PASSAGE 4/30/98 3636 (S) TRANSMITTED TO (H) 5/01/98 3384 (H) READ THE FIRST TIME - REFERRAL(S) 5/01/98 3384 (H) JUDICIARY 5/05/98 (H) JUD AT 1:00 PM CAPITOL 120 5/05/98 (H) MINUTE(JUD) BILL: SB 17 SHORT TITLE: CRIMINAL TRANSMISSION OF HIV SPONSOR(S): SENATOR(S) TAYLOR, Pearce, Miller, Ward; REPRESENTATIVE(S) Rokeberg Jrn-Date Jrn-Page Action 1/13/97 18 (S) PREFILE RELEASED 1/3/97 1/13/97 18 (S) READ THE FIRST TIME - REFERRAL(S) 1/13/97 18 (S) HES, JUD, FIN 4/11/97 (S) HES AT 9:00 AM BUTROVICH ROOM 205 4/11/97 (S) MINUTE(HES) 4/11/97 1099 (S) HES RPT 2DP 1NR 4/11/97 1099 (S) DP: LEMAN, WARD; NR: WILKEN 4/11/97 1099 (S) ZERO FISCAL NOTES (ADM, DPS, LAW) 4/11/97 1099 (S) JUD REFERRAL WAIVED 4/15/97 (S) MINUTE(FIN) 4/22/97 (S) FIN AT 9:00 AM SENATE FINANCE 532 4/22/97 1383 (S) FIN RPT 1DP 4NR 1DNP 4/22/97 1383 (S) DP: TORGERSON; DNP: ADAMS 4/22/97 1383 (S) NR: PEARCE, SHARP, PHILLIPS, DONLEY 4/22/97 1383 (S) PREVIOUS ZERO FNS (ADM, DPS, LAW) 4/25/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203 4/25/97 (S) MINUTE(RLS) 4/25/97 1478 (S) RULES TO CALENDAR 4/25/97 4/25/97 1485 (S) READ THE SECOND TIME 4/25/97 1485 (S) ADVANCED TO THIRD READING UNAN CONSENT 4/25/97 1485 (S) READ THE THIRD TIME SB 17 4/25/97 1485 (S) MTN TO REMOVE (ADM, LAW)FN ANALYSES NOT 4/25/97 1485 (S) ADDRESSING FISCAL IMPLICATION ADP Y14 N6 4/25/97 1485 (S) COSPONSOR(S): MILLER, WARD 4/25/97 1486 (S) PASSED Y14 N6 4/25/97 1486 (S) DUNCAN NOTICE OF RECONSIDERATION 4/28/97 1513 (S) RECON TAKEN UP - IN THIRD READING 4/28/97 1513 (S) PASSED ON RECONSIDERATION Y14 N5 E1 4/28/97 1530 (S) TRANSMITTED TO (H) 4/30/97 1393 (H) READ THE FIRST TIME - REFERRAL(S) 4/30/97 1393 (H) HES, JUDICIARY, FINANCE 3/12/98 (H) HES AT 3:00 PM CAPITOL 106 3/12/98 (H) MINUTE(HES) 4/07/98 (H) HES AT 3:00 PM CAPITOL 106 4/07/98 (H) MINUTE(HES) 4/14/98 (H) HES AT 4:00 PM CAPITOL 106 4/14/98 (H) MINUTE(HES) 4/15/98 2980 (H) HES RPT 2DP 1DNP 2NR 4/15/98 2980 (H) DP: DYSON, PORTER; DNP: KEMPLEN; 4/15/98 2980 (H) NR: GREEN, BUNDE 4/15/98 2980 (H) 3 ZERO FISCAL NOTES (ADM, LAW, DPS) 4/15/98 2980 (H) REFERRED TO JUDICIARY 5/07/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER CRAIG JOHNSON, Legislative Administrative Assistant to Senator Jerry Ward Alaska State Legislature Capitol Building, Room 423 Juneau, Alaska 99801 Telephone: (907) 465-4921 POSITION STATEMENT: Presented SB 274 on behalf of Senator Ward. SAM TRIVETTE, Chief Probation Officer Southeast Region Probation Division of Community Corrections Department of Corrections 240 Main Street, Suite 700 Juneau, Alaska 99801-1141 Telephone: (907) 465-3343 POSITION STATEMENT: Provided department's position and answered questions on SB 274. NANCI A. JONES, Director Permanent Fund Dividend Division Department of Revenue P.O. Box 110460 Juneau, Alaska 99811-0460 Telephone: (907) 465-2323 POSITION STATEMENT: Answered questions relating to SB 274. WAYNE MALONEY, Legislative Assistant to Senator Robin Taylor Alaska State Legislature Capitol Building, Room 30 Juneau, Alaska 99801 Telephone: (907) 465-4906 POSITION STATEMENT: Presented SB 17 on behalf of Senator Taylor. DEAN J. GUANELI, Chief Assistant Attorney General Legal Services Section - Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on SB 17. ACTION NARRATIVE TAPE 98-88, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 4:15 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, Rokeberg, James, Croft and Berkowitz. CSSB 274(FIN) am - PROBATION AND PAROLE FEES CHAIRMAN GREEN announced the first item of business would be CSSB 274(FIN) am, "An Act relating to fees for probation and parole; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; and relating to notice requirements relating to appropriations from the permanent fund dividend fund to the office of victims' rights." It had only been brought up briefly on May 5, 1998. Number 0035 CRAIG JOHNSON, Legislative Administrative Assistant to Senator Jerry Ward, Alaska State Legislature, came forward to present the bill on behalf of Senator Ward. He told members the state currently puts $8.1 million into probation and parole. This bill would allow the state, under a best-case scenario, to recoup about half of that. He said it works out to $3.30 per day, roughly equivalent to a permanent fund dividend (PFD) check, and there is a provision in the bill to take the PFD from an individual who chooses that option or chooses not to pay. The bill also has a provision to avoid a debtor's prison, and someone cannot be incarcerated for inability to pay. If someone proves the inability to pay, that person is excluded from the fee. He told members this law is patterned somewhat on Texas, which recoups about half of its $90 million in costs for probation or parole. MR. JOHNSON explained that in the late 1980s, the department had charged a fee for probation and parole. However, it had only an 8 percent success rate, probably in part because probation officers are not collections people, nor should they be. This bill provides for a third-party private contractor to contract for this, so that the correctional officers and probation officers can do what they are trained to do, which is administer probation and parole. The department had testified in other committees that they had called a Juneau collection agency, but that agency wasn't interested in collecting this. He himself had made three phone calls to Anchorage. Mr. Johnson stated, "They were all very anxious to bid on this job, as well as two national firms that do this nationwide. Forty-three other states collect some type of fees for probation and parole; Alaska would not be unique." Number 0222 CHAIRMAN GREEN asked what sort of collection fees would be involved. MR. JOHNSON answered that it would go out to competitive bid, and it would be roughly 10 to 15 percent, rather than an actual fee. Number 0260 REPRESENTATIVE CON BUNDE stated his understanding that people with no means would be allowed to be paroled without the fee, but most people have the PFD. He mentioned people of limited means and asked what would happen if someone could have applied for the PFD but did not. MR. JOHNSON said that is a good question, adding, "If you can demonstrate that you have no way to pay, you would not be responsible for paying this fee. And I think that would be through a process that would be either a judiciary process or possibly the department could make that ruling." Number 0333 REPRESENTATIVE BUNDE again asked how people would be handled who could apply for the PFD but do not. MR. JOHNSON replied that if that would be their only means, then they would probably not be forced to pay. He explained, "It is not that individual that we're after. It's the individual who has been in prison, who gets out and is on probation and has a job; we're talking roughly a package of cigarettes a day for this fee, or less than a six-pack of beer, to pay for the incarceration. The philosophy of the sponsor is that it's time that the people who perpetrate the crimes not only pay for those crimes with their time and incarceration, but also pay for their supervision afterwards." Number 0410 REPRESENTATIVE BUNDE said he isn't arguing about the philosophy of the bill but wonders about disincentive, especially for someone with a chip on the shoulder who may not want to work or apply for the PFD. MR. JOHNSON acknowledged that may be a likely scenario with some inmates. He noted that the purpose of incarceration is both to incarcerate and to rehabilitate, then suggested, "If we've been successful with the second part of that, one would think that they would want to become, once again, productive members of society. This is part of that." Mr. Johnson told members that in Texas, lack of payment is fourth or fifth on the list of violations that will send a person back to prison. He said it is an early-warning sign. Number 0545 CHAIRMAN GREEN pointed out that several bills have targeted the PFD. He asked where this would fall in the hierarchy. MR. JOHNSON said it would be at the bottom of the list, and it is not the intention to take money from the Division of Family and Youth Services (DFYS), nor from children that need it or victims' groups. He reminded members that the PFD is just a recourse if someone doesn't pay. They are still asking the fee of $3.30 a day, which is based roughly on a $1,200 PFD. Number 0599 CHAIRMAN GREEN stated his understanding that a large percentage of people would be somewhat rehabilitated and would probably not take the course mentioned by Representative Bunde. He suggested most would probably have jobs, for example. MR. JOHNSON indicated that a condition of probation and parole is usually that they do have jobs. He again compared the price to that for a package of cigarettes or some beer. He said it is to offset what they view as taxpayer dollars of more than $8 million, which can better be used for other purposes such as education. Number 0657 REPRESENTATIVE ERIC CROFT said he understands from the packet that it was tried in 1986 but repealed in 1989. He asked why the sponsor believes it will work better now. MR. JOHNSON replied, "The input that we have from people that were actually involved in that is that the correction officers were not collections officers, that they were uncomfortable doing that collection; they were experiencing roughly an 8 percent success rate at that time. And that is why we have included in this legislation a private contractor to do that. Let the probation officers do what they do, and we'll have a professional collection agency do the collecting." Mr. Johnson said it was the feeling of the sponsor that it hadn't been a 100 percent, wholehearted effort in collections previously. Number 0706 REPRESENTATIVE ETHAN BERKOWITZ asked what the recourse is for failure to pay. MR. JOHNSON responded, "If they consciously make a failure to pay, they will be reincarcerated, if they had the means to do so. If they do not, we cannot incarcerate someone for a debtor's prison, which is, in essence, what we would be doing here. This bill makes for that provision." Number 0740 REPRESENTATIVE BERKOWITZ said that complies with the requirement in State v. Albert, mentioned in back-up materials, which had to do with nonpayment of court-ordered attorneys' fees. MR. JOHNSON replied that he is not familiar with that case. He mentioned discussion indicating the department's position is that if someone is delinquent for 30 days, the most they could collect is $90, and therefore a prisoner would only be allowed to be incarcerated for a certain amount of time to make up for that. Mr. Johnson stated, "It is the sponsor's position that it's violating a parole, just like if you violate a restraining order. ... If part of your parole is that you cannot be in contact with this person, and you do that, ... you go back to jail." Number 0788 REPRESENTATIVE BERKOWITZ next asked whether the private collection agencies would be, in essence, acting in the state's stead. He said he is wondering whether they will legally have the same constraints that law enforcement would have, in terms of going into people's homes or how they can collect. MR. JOHNSON said he didn't have an answer. CHAIRMAN GREEN suggested a professional collection agency would do it just as for any other bad debt. Number 0830 REPRESENTATIVE BERKOWITZ pointed out a distinction. If a person owes another person money, and sends a collection agency after that debt, that is between private parties. But if the state sends a collection agency after a person that owes money, he said he is wondering whether that collection agency is an agent of the state, in which case different rules apply, including the Fourth Amendment and probably all kinds of process and procedure that he doesn't really know about. He asked how that would impact the ability of the collection agency. MR. JOHNSON replied, "My response to that would be very much like if you get a parking ticket downtown, and you've violated a city ordinance, yet there is a private third-party collection agency collecting that debt from you. ... Or do they have that same responsibility that you've outlined?" REPRESENTATIVE BERKOWITZ said he doesn't know if there are different requirements for that private collection agency than there would be here. Number 0890 REPRESENTATIVE BUNDE restated that he is not opposed to the philosophy. He said there is one indeterminate fiscal note, and one for half a million dollars. He asked what the net gain is for the state, and how many people they would collect money from. MR. JOHNSON said the number approaches 3,800, and another 700 have absconded. They anticipate releasing another 900 on probation in 1999, whereas in 1998 they will release approximately 850. Under the best-case scenario, they expect to collect $5.5 million. Even under the worst-case scenario, he expects that the money raised could almost pay for the $561,000 in the fiscal note. Number 0981 REPRESENTATIVE JEANNETTE JAMES referred to Representative Berkowitz' question about collection procedures. She suggested the state would have a contract with an agency, and details would be worked out in the contract, by legal minds. MR. JOHNSON concurred. Number 1006 REPRESENTATIVE CROFT responded, "Well, but some of this threat is, 'If you don't pay us $3.30 a day, we're going to put you back in an institution that costs us $100 a day.'" He asked whether that is Mr. Johnson's understanding of where the fiscal notes come from, that they would be collecting some but reincarcerating some at a much higher rate than $3.30 a day. MR. JOHNSON said yes. He added, "However, I do want to go back to the example that I used in Texas, where when a person ceased to pay, that it was the third or fourth reason why he was violating, and by that red flag, Texas feels like they are preventing serious crime, they are keeping people [under] a little closer supervision. If they fail to pay, the collection agency reports; that's a red flag for the probation officer. That person may be involved in behavior that violates his parole. And, once again, the history in Texas is that once someone falls into what you're saying, that they have to go back to jail, it's not for not paying; it's for a myriad of others. As a matter of fact, the not paying fell fourth on the list. So, do I think anyone will be incarcerated for not paying $3.30 a day? Personally, no. I think that if someone is not paying, they've already done other things, and they have not been rehabilitated, and they are probably someone in society that we'd just as soon have in that $105-a-day bed." Number 1135 SAM TRIVETTE, Chief Probation Officer, Southeast Region Probation, Division of Community Corrections, Department of Corrections, came forward, offering some history. He told members the probation fee bill had passed the legislature in 1986, and the fee was put at $45 by regulation. However, it became clear soon thereafter that the fee was more difficult to collect than originally anticipated and required considerable probation officer time. They collected less than 10 percent of the anticipated fees, and ended up putting some probationers on community work service in lieu of cash payments. Number 1175 MR. TRIVETTE informed members it had turned into a paperwork nightmare. In rural Alaska, probationers living a subsistence lifestyle weren't able to pay the fee, and in some places there was little community service work to do. In urban communities, many probationers did not have work, and those that did could not afford to pay the fee. Or, occasionally, people refused outright. Mr. Trivette said, "Our experience has been, for example, that many of the people on probation and parole have restitution, and although you'd think ... that these people would be willing to apply for permanent fund dividends, in order to get some of that money after they pay the restitution, a lot of them won't even apply for a PFD unless we get a direct court order to do that, sometimes." Number 1207 MR. TRIVETTE told members that although AS 12.55.051 allows for a defendant to be incarcerated for one day for each $50 of fine owed, there is no indication that anyone was jailed for nonpayment of the fee back in those days. It became a fee with no consequences. Although less than 10 percent paid, the department was still obligated to try to collect the money, and spent considerable time and resources trying to do that. About three years later, Senator Adams proposed a bill to repeal the fee, because most of the probationers in his district did not have jobs and collection elsewhere in the state was not going well; that bill passed the Senate by a vote of 17 to 0, and passed the House by a vote of 37 to 0. MR. TRIVETTE discussed how SB 274 differs from that. First, the fee in SB 274 is over twice that of the previous fee, and the department is required to contract out the collection and administration of the fee. He told members the average currently collected is $23.60 per month for the 23 states that collect a probation fee; the highest fee is $40, and the lowest is $10. In addition, Section 7 requires that the parole board revoke parole for refusal to pay the fee. Mr. Trivette emphasized that right now, if a person commits violations, the parole board has discretion; but as the bill is now drafted, it absolutely requires revocation if, in fact, the person has not paid the fee. Number 1302 REPRESENTATIVE BUNDE asked whether the department would be more comfortable with the bill if it said "may." MR. TRIVETTE said yes. Number 1310 REPRESENTATIVE BERKOWITZ advised members he had been reading the Albert case, and it seems upon preliminary reading that incarceration based on a civil judgment is improper in the state of Alaska. Noting that Criminal Rule 39 is the rule that says criminal defendants have to pay for their state-appointed attorneys, he read, "Criminal Rule 39, recoupment judgments, are merely civil judgments. Nonpayment of them has no correctional consequence, and nonpayment does not give rise to contempt proceedings ...." He said it goes on about being incarcerated, then continued, "And the parallel argument, skimming through some of the documents here, is going to be these people have been incarcerated on an underlying crime, they've been paroled based on whatever behavior there is, and ... I would guess unless there's an express condition of parole that nonpayment of fees could result in reincarceration - which would require that would need to be a special condition of parole - it would be inappropriate to reincarcerate people based on nonpayment." Number 1372 REPRESENTATIVE JAMES agreed, but she asked whether this doesn't make it be part of the parole requirement. CHAIRMAN GREEN responded, "The way it is written." Number 1394 MR. TRIVETTE continued, saying this will be the first statute that mandates revocation of parole anywhere in Alaska; the board will have no choice but to revoke parole and put parolees back into a severely crowded system, which he suggested will cost much more than the monthly fee. He stated, "SB 274 goes on to require that the probationer or parolee assign their PFD checks to the state, and requires that the Department of Corrections ... attach their PFD if they become in arrears. However, the state would not get any of this money until prior requirements are satisfied, such as IRS [Internal Revenue Service], child support, restitution, court-ordered fines Department of Corrections are number eight in line for attachment by PFD." Mr. Trivette said the reality, based on experience with current probationers, is that it will be fairly unusual to receive any money after the other obligations are taken care of, under that section. Number 1430 REPRESENTATIVE BERKOWITZ asked whether it would have a priority above civil debtors. MR. TRIVETTE said he didn't know; he suggested Mr. Guaneli might be able to answer, specifying that it is AS 43.23.065(b). He next referred to indications that Texas collects $45 million a year from this; he said he'd received a figure of $40 million, but it is in the ballpark. He pointed out, however, that in Texas, this is usually the highest priority, before restitution, fines, child support, or anything else. Judges in most counties in Texas set the priorities of payments, but supervision fees in most counties are at the very top of the list. MR. TRIVETTE told members the Department of Corrections does not believe obligations to children or victims should be placed after probation and parole fees. A probation officer who works for him had worked in Texas for ten years; that officer made it clear that these fees are not only a top priority there, but probation officers are told they can be terminated if they don't collect the money. So, understanding that the fees in Texas average $20 a month, and that probation officers have it as one of their highest priorities, "before they do other things that we think are important in Alaska, like supervising, making sure people are going to treatment, those kinds of things," Mr. Trivette pointed out that Texas only collects about a third of the fees that people are obligated to pay. Number 1540 MR. TRIVETTE reported that information recently received from Texas indicates about 20 percent of probationers and parolees are reincarcerated for violation of conditions of probation or parole, without new criminal violations; Texas does not keep a separate breakdown of how many people are there just because of the fees. Mr. Martinez (ph), who is with their criminal justice policy council and has worked in the probation/parole system for several decades down there, told them that many times, violations start with a person being unable to pay the fee. Mr. Trivette said, "They get worried, they get bothered, they quit reporting, they start using drugs and alcohol again. And so, they think that ... this fee may be a cause of some of the problems that account for 20 percent of the population that gets revoked each year, going back to jail on condition violations, and not new crimes." Number 1600 MR. TRIVETTE discussed fee collection, acknowledging the sponsor's requirement that this be contracted out. When contacted, the one agency in town had said they weren't interested in that kind of work. Mr. Trivette told members that in all the states he is familiar with personally, and has talked to over the years, the probation staff do the collection themselves. He added, "They may have special people in their offices do the collections, but I don't know another state that does contracting out." He suggested they have no experience to look at, in terms of that. MR. TRIVETTE advised members, "Even if we contract this out, though, this is an issue. Even if we contract this out, it still is going to require a considerable part of the time on behalf of the [probation/parole officers], who have to work closely with the contractor to provide the information on these people. Also, we have an obligation, by law, to keep the court advised of these payments. So, even though ... a third party might be out there trying to do the collection, we still are responsible for keeping in contact with them, for getting their records, for making copies of records, for filing probation/parole violations, if in fact that becomes an issue." Number 1642 MR. TRIVETTE called attention to Section 3, which amends AS 12.55.100(a). He said they had assumed until a short while ago that this bill affects only felons. However, as Mr. Guaneli had pointed out, that statute applies to misdemeanants as well. Mr. Trivette said there is possibly an equal protection issue for these people being required to pay a probation fee when they are not being supervised or receiving services from a probation officer. MR. TRIVETTE concluded, "Finally, the Department of Corrections believes that the concept of this bill is a good idea. However, the previous track record does not support the reinstitution of this fee. It's easy to say that if everyone paid their bill that we would bring in approximately $5 million, but the past performance just does not indicate that. And the Department of Corrections is not real hopeful that, based upon the best example we have, which is the state of Texas, where they collect a third, that this will improve significantly in Alaska." Number 1720 CHAIRMAN GREEN asked whether they actually reincarcerate in Texas for failure to pay. MR. TRIVETTE said yes. CHAIRMAN GREEN suggested it may require some modification in law, then. Number 1735 REPRESENTATIVE BERKOWITZ said he hadn't read the bill thoroughly enough before, and Sections 5 and 6 do allow for special and standard conditions of parole, such that nonpayment can result in a violation of parole. He pointed out that those sections do not apply to misdemeanors, which do not receive parole conditions. CHAIRMAN GREEN asked Mr. Johnson whether it is the intent under Section 3 that the bill would include misdemeanants. Number 1760 MR. JOHNSON said it is not the intention under this bill to bring misdemeanants in, nor does he believe it does so. However, it had been discussed, and the sponsor had introduced an amendment to that effect in the Senate Finance Committee, which would have generated $22 million in PFDs. He then qualified his statement by saying if a misdemeanant was put on probation for some reason, he believes the bill would cover that. CHAIRMAN GREEN asked whether it covers all probationers. MR. JOHNSON said yes, adding, "And I do not know, legally, if the court would put a misdemeanant on probation or parole. If they did, this bill would cover that. But once again now, we're talking about a fee; there is actual supervision, and that kind of eliminates some of those concerns." Number 1820 REPRESENTATIVE BUNDE expressed understanding that from Mr. Trivette's testimony, the department might not want to use this often if it were permissive rather than mandatory. MR. TRIVETTE concurred. REPRESENTATIVE BUNDE suggested that currently felons don't qualify for a PFD. Number 1872 NANCI A. JONES, Director, Permanent Fund Dividend Division, Department of Revenue, said that is correct while they are incarcerated. She told members the other provision of this bill, which she had pointed out the previous day [during a hearing on another bill], is that felons or misdemeanants, once out of jail, lose their PFDs a second year. She stated, "So, there's two provisions in this bill. One is their levy power, that if they don't pay their fees that a person can assign their dividend, or the Department of Corrections can levy upon their dividend, in eighth order; they're at the bottom of the barrel, ... and we're taking their dividend. So, in essence, they're getting charged over on the left, and we're taking the dividend on the right. So, there is no more dividend. They won't even be eligible, and they don't even have to file. It's just because they were ... in jail the year before." Number 1924 REPRESENTATIVE JAMES said it seems this bill has a lot of differences from what happened before. She asked how many people in rural areas probably wouldn't be able to pay, out of the total 4,600 in the sponsor statement; she noted that there had been mention of 3,800 a little while ago. Number 1960 MR. TRIVETTE said it is hard to provide a concrete figure. He emphasized that he had worked for the Department of Corrections when the previous law was in operation, and the officers did everything they could to try to get people to pay. However, many who owed the fee lacked good social skills, a significant number were developmentally disabled, and a high percentage had substance abuse problems. Mr. Trivette stated, "A lot of these folks have a hard time maintaining regular employment. And, frankly, we feel if we can get them to maintain some semblance of employment, if we can get them to pay their restitution and their child support, that's a big step in the right direction. ... And we don't have an MIS in place - a management information system in place - right now, and so I don't have a good figure. But ... if we could get a third to pay, like Texas does, I think we'd be doing real good, Representative James." Number 1999 REPRESENTATIVE JAMES said she is trying to visualize how this would work, and the bill says if a person cannot pay, that person is not put back into jail for that. She said she doesn't know if the inability to pay is determined at the time of parole or later, but that parole or probation officers have contact with these people all the time and could determine whether a person could pay; she said that determination doesn't seem to be a hurdle. She asked whether the previous legislation had also excused those who could not pay. Number 2033 MR. TRIVETTE replied that he sees nothing in the bill about ability to pay; that is case law. Nor is it up to his department to make the determination. If a person hasn't paid for four or five months, even if the department believes there is a reasonable explanation, they don't have the authority to excuse that, by statute, and nothing in this bill gives them that authority. They have to go back to the parole board, or to the sentencing court, and those hearings take a considerable amount of time. Number 2060 REPRESENTATIVE JAMES suggested there is always a method to prove inability to pay, such as an income level. She said it seems appropriate to have court action if a person had been employed formerly, for example, and then didn't pay or refused to pay. She said if that isn't in the bill, they could add it. MR. TRIVETTE replied that it is not in the bill. If it were in the bill, and gave some leeway to the probation officers, it would certainly make it more palatable, because they wouldn't even have to go back to court. He restated that if it says, "you shall pay," the department has no choice but to notify the court. CHAIRMAN GREEN asked whether anyone had a suggested amendment. Number 2138 REPRESENTATIVE NORMAN ROKEBERG asked whether people on probation or parole are allowed to leave the state unless there is a condition prohibiting it. MR. TRIVETTE replied, "Yes, there is a provision under state law, called the interstate compact on probation and parolees, that does give us the authority to let them leave with a travel pass to go to a different state. And we can actually have them supervised in a different state." REPRESENTATIVE ROKEBERG asked whether this bill would provide for collection of any fees if someone was out of the state. MR. TRIVETTE said he doesn't believe the bill addresses that issue specifically. He said he assumes that where they are supervised is immaterial, and the department would have to collect that fee no matter where they were serving their time on probation or parole. CHAIRMAN GREEN said, "And if this were enacted, you'd have to send out to get them." Number 2161 MR. TRIVETTE agreed, adding that one problem now is when there are probationers or parolees that haven't paid restitution, the state must get a warrant and send a state trooper to bring them back. He said it is extremely expensive. MR. JOHNSON said in 1997, there were 20 individuals on probation and parole outside the state, out of 3,800. He said there are 15 from another state that Alaska is supervising. MR. TRIVETTE disagreed with those figures, adding, "We have hundreds, going either direction." He said there are that many in the Juneau office. CHAIRMAN GREEN asked Mr. Johnson what he was quoting from. Number 2217 MR. JOHNSON replied, "Well, I'm looking here at probation and parole. Persons received by the agency in Alaska is 15; persons sentenced to other jurisdictions, 20." MR. TRIVETTE responded, "Mr. Chairman, I can't speak to that book that he's got, but I can assure you that the numbers are much higher than that. We have an interstate compact office in the state of Alaska, and I think they have someplace in the area of 400 and some cases going either direction at this point .... One officer can't take care of all the cases going back and forth. But again, ... I didn't compile that book; it's not done by the state of Alaska. So, sometimes those things are hard to read; sometimes people that read surveys from other states don't get it quite right. I found that we simply can't rely upon that stuff sometime ... for hard evidence, if you need to have good figures." Number 2252 MR. JOHNSON asked whether they are talking about people from Alaska sent to other jurisdictions. CHAIRMAN GREEN added, "Or serving a parole someplace else." MR. JOHNSON said the number could be 150. He asked Mr. Trivette whether that is how he reads it, then specified that it is information provided by every state correctional agency. Number 2270 REPRESENTATIVE ROKEBERG inquired about the impact if probationers and parolees go to another state, or come to Alaska. He asked whether they would be subject to the provisions of this bill. MR. JOHNSON said he doesn't believe this bill would entitle the state to collect a fee from people on parole and probation from out of state. REPRESENTATIVE ROKEBERG asked whether this may be an encouragement to relocate out of the state. Number 2296 MR. JOHNSON said they would be locating to one of 23 other states that may collect a fee, and losing potentially the PFD, which even with this bill the person could receive after the second year. Number 2318 REPRESENTATIVE CROFT requested an explanation of the difference between probation and parole. MR. TRIVETTE said basically probation is granted by the court, as a judicial function. What is confusing is that in most states, probation is granted in lieu of jail time for less serious offenses. In Alaska, a parolee is a person who has gone to jail. In most states, the person would typically have been sentenced to at least a year of prison, rather than serving in a jail, and gets out after having served a portion or most of his or her time in prison; that person would be under supervision. There are two kinds of parole: mandatory parole, which is by operation of the law, and discretionary parole, where people are sometimes released for less serious offenses. "And the board says you get out a little bit early, but you're on supervision here, and condition," Mr. Trivette added. "So, parole is an executive function; probation is a judicial function." He said the conditions tend to be fairly similar. Number 2375 REPRESENTATIVE JAMES said she was working on an amendment but hadn't come up with anything yet. Number 2380 REPRESENTATIVE CROFT told members he had three amendments, based on what they'd heard that day. The first goes to the "may" versus "shall." The second goes to the amount. And the third goes to whether it is contracted out. Number 2400 REPRESENTATIVE CROFT made a motion to adopt Amendment 1, that "may" replace "shall" on the following lines: page 3, lines 3, 7, 8 and 9; page 4, lines 17, 21, 22, 23 and 28; and page 5, line 4. Along with that on page 4, line 15, "shall" would be replaced with "may be required to". CHAIRMAN GREEN objected for discussion purposes. TAPE 98-88, SIDE B Number 0006 MR. JOHNSON told members the purpose of the bill is not to punish but to raise revenue. While it probably wouldn't defeat the purpose, this would diminish its effect as a revenue tool to pay for the fees coming out of other Alaskans' pockets to supervise these people. CHAIRMAN GREEN asked how the department would react to this. MR. TRIVETTE answered that some people clearly could pay, and the department would certainly make a strong effort to collect from those people. If it were permissive, he suggested the department would not likely bother with the less collectible ones, and would instead concentrate more on child support, restitution, the student loan fund, and the private bill collectors that are in line to get their money right now. CHAIRMAN GREEN commented, "But you would probably still go after some, so that while the fiscal note would imply that you could get back a half a million or so, you might in fact do far less, but also at less cost, because you'd be going after those that are easy picking." MR. TRIVETTE said that would be his best guess. CHAIRMAN GREEN asked whether Mr. Trivette has any feel for how much less that would be. Number 0093 MR. TRIVETTE said he can only rely on past experience in the late '80s, as well as the experience of Texas, which to his knowledge is the state that collects the largest amount, about one third. He estimated for Alaska it probably would be 10 to 15 percent. Number 0109 REPRESENTATIVE BERKOWITZ referred to page 3, the issues regarding probations coming out of the court. He said this could have a huge repercussion that no one has discussed here. He indicated most misdemeanor cases result in some type of probation. For driving while intoxicated (DWI), for example, a person may serve three days with 20 suspended, plus a year's probation, which would cost $3.30 times 362 days. CHAIRMAN GREEN noted that would be about $1,000. REPRESENTATIVE BERKOWITZ suggested because of the relatively large fine, there would be more incentive to contest the case and take it to trial. He expressed surprise that nobody was present from the court system about this unintended consequence, and he said he supports the amendment because the "may" is very important. Number 0178 REPRESENTATIVE JAMES expressed the belief that "may" is discriminatory, because they would select the easy ones to collect. She stated a preference for "shall," further suggesting they add language to eliminate those who wouldn't have to pay because of a justifiable reason. CHAIRMAN GREEN suggested it is discriminatory even with "shall" because those who cannot pay don't have to. REPRESENTATIVE JAMES disagreed, saying is okay to do that based on need or ability to pay. Number 0235 REPRESENTATIVE BERKOWITZ said the more he thinks about it, the more crucial this is, in terms of process. Every misdemeanor case certainly is going to have a probationary period. With the "shall," there are two consequences: either the defendant will be more likely to go to trial because of this probation expense, or there will be a lot of negotiation to shorten the probationary period, which reduces the hammer over the defendant. Representative Berkowitz said there is a limited amount of "give" in the system, and those are the two immediate areas of flexibility that he sees. "And neither one of those responses does good things for public safety," he added. Number 0270 CHAIRMAN GREEN removed his objection to Amendment 1. REPRESENTATIVE BUNDE said that is fine on the "may" but he wants further discussion about the misdemeanors falling under this. Number 0290 REPRESENTATIVE CROFT told members the committee aide (Kevin Jardell) had suggested the change isn't necessary in a number of places. He then referred members to page 3, probation fees, and proposed amending Amendment 1 so that the only four changes of "shall" to "may" would be on page 3, line 3; on page 4, lines 17 and 28; and on page 4, line 15, where "shall" would be replaced with "may be required to". Number 0375 REPRESENTATIVE JAMES referred to subsection (a), beginning at page 3, line 3, noting that the last sentence says, "The fee amount shall be established by regulation by the Department of Corrections but may not be less than $3.30 a day." She asked whether anything in here allows those regulations to establish the decision-making process of the "may." Noting that she is still concerned about discrimination, Representative James indicated that as long as there is a selection process that is not arbitrary, she wouldn't have a problem with "may." Number 0407 REPRESENTATIVE CROFT said to accommodate that concern, he'd suggest some sort of language that says, "based on the ability to pay." He asked whether that is the criteria Representative James wants. REPRESENTATIVE JAMES affirmed that. Number 0420 REPRESENTATIVE BERKOWITZ pointed out that the constitution protects against discrimination in sentencing. He said there are certain requirements that like-situated individuals receive like sentences, based on the facts of the offense, not based upon extraneous facts like a person's wealth. Basic equal protection guards against the type of discrimination that Representative James is worried about in sentencing. Number 0442 REPRESENTATIVE JAMES responded that her concern is that with a "shall" turned into a "may," it may be done selectively, which the statute doesn't prohibit. REPRESENTATIVE BERKOWITZ replied that what the courts will do is will apply the "may" to all the defendants who come before them; there are certain profiles of cases, which are treated more or less equivalently. He stated, "If you take away too much discretion from the court, you take away the ability to sentence each defendant as an individual, which ... is the important thing; that's the best way of satisfying ... the criteria we use for sentencing. That's why the 'may' gives the court flexibility. But even within the 'may,' there are parameters that the court can't exceed, because prisoners and defendants, they have to be treated similarly." Number 0495 REPRESENTATIVE PORTER asked whether there wasn't something in the bill that dealt with the ability to pay in the first place. MR. JOHNSON said yes, referring members to Section 7, subsection (j), on page 4, lines 30 and 31, which says, "shows by a preponderance of the evidence that the parolee was unable to pay despite having made continuing good faith efforts to pay the fee." Number 0531 REPRESENTATIVE CROFT pointed out that it concerns revoking parole, not setting the right amount to begin with. He next referred to discussion between Representatives Berkowitz and James, suggesting in two places saying, "based on the ability to pay the fee." He told members the first place would be on page 3, line 5, after "probation". It would then read, "A court granting probation may require a periodic probation fee to be paid to the Department of Corrections as a condition of probation, based on the ability to pay the fee." And on page 4, line 19, after "parole", the same language would be used. Number 0640 REPRESENTATIVE BERKOWITZ spoke against that, saying there can be instances where a court would determine it is inappropriate to require a probation fee. He mentioned an example where there is a suspended imposition of sentence. CHAIRMAN GREEN pointed out that it now would say "may." REPRESENTATIVE BERKOWITZ said as modified, it says, "may, subject to ability to pay." He suggested that is really saying "shall, if you can pay." He stated, "And what I'm saying is the court needs the discretion to say, 'We're not going to charge you a fee at all, because essentially you're not costing us anything,' or 'It's inappropriate in this case to charge you a fee.'" He said no matter what they call these fees, they amount to a fine in essence, as they are out-of-pocket money to somebody. REPRESENTATIVE BERKOWITZ then stated, "The result is it's going to skew how the system reacts towards misdemeanant defendants. It's going to change the length of probation, and either going to result in increased periods of incarceration to compensate for probation, because prisoners aren't going to want to pay, as opposed to having this hammer over their head, and it's going to result in more trials, which is going to mean more court costs, more prosecutor costs, more defense costs. ... And it's not necessarily going to result in a better ration of justice. You know, if we want to tax people who get sucked up as defendants, let's tax them, because that's essentially what we're doing. These probationers, by and large, don't really cost anything." REPRESENTATIVE JAMES mentioned fees for services. Number 0740 REPRESENTATIVE PORTER questioned the logic of that argument, saying he hasn't met the person who would want to stay in jail rather than pay $3.30 a day, which a person wouldn't have to pay if he couldn't. He agreed it should say "based on the ability to pay the fee" as suggested in two places, but disagreed that it should say "may." Representative Porter stated, "If we're going to set a policy, let's set the policy. As I understood, the whole discussion was that we needed to be able to allow for a sliding scale and the ability to pay. So, the policy is ... we shall have this fee, and it's qualified by the ability to pay. But if you may do it, based on the ability to pay, then you may do it or you may not. But if you do it, you have to do it on the ability to pay." Number 0800 REPRESENTATIVE BERKOWITZ responded that what will result is that for relatively simple proceedings in misdemeanor court, there will be protracted bits of litigation on the ability to pay. Normally when someone walks in on an assault case, it is simple: the person serves five days, has 80 days suspended, and gets probation for one year. However, now defendants, most of whom have public defenders, will stand up and say they can't pay, and the prosecutor will argue the other side, chewing up court time and resulting in long battles that will delay justice in other cases. Representative Berkowitz described misdemeanor cases as "moving flotsam through the system," saying this added step will bottleneck the process significantly. Number 0850 REPRESENTATIVE BUNDE said that is a separate question, and he would like to see this bill amended to remove any misdemeanants from involvement in this. He said that would solve a lot of the questions in his mind. Number 0877 REPRESENTATIVE CROFT referred to Representative Porter's point. He said, "If, under a 'shall,' they can set a zero fee, then 'shall' and 'may' don't make a lot of distinction there. It's really the distinction we've made ... based on the ability to pay the fee." He asked Representative Porter if it is his interpretation that with "shall, based on the ability," the court could set the fee at zero if a person was unable to pay. REPRESENTATIVE PORTER said yes. REPRESENTATIVE CROFT suggested it is a somewhat theoretical argument, then. REPRESENTATIVE PORTER replied, "But you have to apply that standard to every person. That's what I'm getting at." REPRESENTATIVE JAMES said that takes care of her discrimination concern. Number 0912 REPRESENTATIVE BERKOWITZ referred to the next sentence, "The fee amount shall be established but may not be less than $3.30 a day." He said it cannot be zeroed out. REPRESENTATIVE JAMES said they might have to fix that. REPRESENTATIVE CROFT agreed they should at least look at it. He noted that it was going to be his second amendment. Number 0934 CHAIRMAN GREEN referred to page 3, beginning at line 3. He suggested putting on line 4, "shall require a period probation fee ... of not less than $3.30 a day, to be paid to the department," and dropping the second sentence. REPRESENTATIVE JAMES suggested, "not more than $3.30 a day." CHAIRMAN GREEN asked whether that would bypass the problem just stated. Number 0960 REPRESENTATIVE BERKOWITZ replied that the problem is that the department would set a fee, and it doesn't matter what the amount is. Once the court is locked in to assigning a fee, that is the fee they have to assign. There will then be situations where the defendant contests the ability to pay whatever fee it is. Number 0982 REPRESENTATIVE BUNDE said he wants it clear, where it says the fee amount shall be established by regulation, that it is not going to be $50 a day for one defendant but $3.50 for the next. He said it isn't clear that it is a blanket fee that shall be established, and that everyone who can pay it will do so. He expressed concern about a sliding scale where the wealthy can buy their way into probation but the indigent cannot. Number 1020 REPRESENTATIVE JAMES asked Nanci Jones, "When we passed the piece of legislation that provides people who file appeals to the decision ... on the permanent fund, there's a $25 fee, unless they can't pay; and how is it that you determine they can't pay?" Number 1037 MS. JONES indicated it is based on federal poverty guidelines. REPRESENTATIVE JAMES asked, "Well, can't we do the same thing?" REPRESENTATIVE PORTER said yes, then proposed using words to the effect of "not less than $3.30 a day for fines that are imposed." He explained, "What I'm trying to get at here is that it isn't that difficult to determine ability to pay. It's done every day that they get public defenders, and done every day that she waived the $25 fee and all those kinds of things. I don't think that we want to have probation have to fiddle around with trying to figure a sliding scale from zero to $3.30. Either they can afford $3.30 or they can't. And most folks can because of the permanent fund. But if for some reason it's already attached and they can't, don't mess with it." REPRESENTATIVE JAMES said it seems a number of members are on the same road. She suggested they try to agree on a conceptual amendment. Number 1144 CHAIRMAN GREEN called a brief at-ease at 5:30 p.m., then called the meeting back to order. REPRESENTATIVE CROFT withdrew Amendment 1. Number 1160 REPRESENTATIVE PORTER made a motion to adopt Amendment 2, which would do the following: On page 3, line 3, insert "as defined in 33.05.080" after the word "probation" and before "shall"; on page 3, line 5, after "probation", add "based on ability to pay"; on line 6, delete "$3.30" and insert "$1.50", and add the phrase, "if a probation fee is assessed"; on page 4, line 19, after "mandatory parole", add "based on ability to pay"; on line 20, delete "$3.30" and add "$1.50"; and at the end of that sentence, add the phrase, "if a parole fee is assessed". Number 1285 CHAIRMAN GREEN asked whether there was any objection. Hearing none, he announced that Amendment 2 was adopted. REPRESENTATIVE PORTER explained, "For the record, Mr. Chairman, what that did is relegate this to felonies and indicate that if a probation or parole fee is assessed, the floor is $1.50; the regulations may allow for assessments over $1.50, based on the ability to pay, but if an individual does not have the ability to pay $1.50, there is no fee." Number 1319 REPRESENTATIVE CROFT made a motion to adopt Amendment 3, substituting "may" for "shall" on page 6, line 23. REPRESENTATIVE PORTER objected. MR. JOHNSON told members that in every committee where this bill has been heard, it has been stated that the amount of time it takes probation officers to do the collections has been a major pitfall, and it was a major problems with the earlier bill, which was repealed. Number 1403 MR. TRIVETTE stated a preference for the permissive "may." He said the department would certainly look at contracting out, whichever way the bill is worded. He said he has no idea about other states' experiences with contracting out, nor do they know what agencies in the private sector may be willing to do this. Number 1436 REPRESENTATIVE PORTER spoke against Amendment 3, saying it will require additional work but there will be no additional people. Therefore, it will either detract from time available for supervision now or subsequently there will be a fiscal note requesting money for this function. He added, "We've got it worked out. It's not union work yet. Let's not make that mistake." CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 3 was Representatives Croft. Voting against it were Representatives Bunde, Porter, James and Green. Representatives Berkowitz and Rokeberg were not present. Therefore, Amendment 3 failed by a vote of 1-4. REPRESENTATIVE CROFT asked for confirmation that the felony-versus-misdemeanor been incorporated in Amendment 1. REPRESENTATIVE PORTER said it was, under the definition in Title 33. Number 1542 REPRESENTATIVE CROFT made a motion to delete Section 8, as Amendment 4. CHAIRMAN GREEN objected for discussion purposes. REPRESENTATIVE CROFT explained that he had before him Alaska v. Anthony, relating to prisoners suing for having their PFD taken away while incarcerated. The court had relied most heavily on the fact that they were incarcerated and that the state was paying for their time, so that was a legitimate interest the state had in taking away their PFDs. Representative Croft stated, "The effect of Section 8, ... it used to say during all or part of the calendar year immediately preceding they were incarcerated; so, it sort of rounded up no matter what. You were incarcerated for some portion, we're going to take away your dividend. That stretches it, but it would at least be justifiable on this rationale of 'we got you in jail; we're paying for you in jail; we're taking your dividend.'" REPRESENTATIVE CROFT continued, "But when you say 'either of two,' you could have a whole year where you were not, and they're taking your dividend. We're already assessing a fee for our probation services or parole, and they're not incarcerated. I worry that there's just not a legitimate basis, then, to take someone's dividend or their -- this is a sort of automatic, as opposed to the other, which would be based on ability to pay and we can assess up to this amount. So, that's why I'm moving it. I worry that we have removed the constitutional basis for what they upheld it before, by extending it for another year." Number 1630 MR. JOHNSON said he thinks the only real concern here would be for misdemeanants, who may not be in a parole situation, but if they were, an argument can be made that they are paying for something the state is providing. He stated, "They're not behind bars, but I think that the department will tell you that they consider an individual who happens to be on probation as still an inmate; he just doesn't happen to be incarcerated. And so, they are still under supervision, and there would be an argument that yes, there is expense, and they are paying for a service." CHAIRMAN GREEN asked whether Mr. Johnson still feels that would be necessary, given the amendment relating to felons. MR. JOHNSON said he was talking about (B), which says, "misdemeanor if the individual has been convicted of two or more prior crimes as defined in AS 11.81.900." He said he doesn't believe the felony is an issue, and he doesn't know the answer for the misdemeanor. Number 1694 REPRESENTATIVE JAMES expressed frustration that every time they turn around, they focus on the PFD as a way to pay for things. "And I just am ready to not do that anymore," she stated. "... I'd like to delete, on page 3, ... that section as well. However, I would like to have anyone have the ability to go through the assignment of the permanent fund, just as a matter of if there's a debt, they can go after it. ... But this seems to me like what they're saying is you're going to get it anyway, whether they are entitled to it or not." She said she'd like to take the PFD out of here, as it complicates it. CHAIRMAN GREEN maintained the objection and requested a roll call vote. Voting for Amendment 4 were Representatives James, Berkowitz, Croft, Porter and Green. Voting against it were Representatives Bunde and Rokeberg. Therefore, Amendment 4 was adopted by a vote of 5-2. Number 1826 REPRESENTATIVE PORTER made a motion to move from committee CSSB 274(FIN) am, as amended, with individual recommendations and attached fiscal notes. CHAIRMAN GREEN asked whether there was any objection. Hearing none, he announced that HCS CSSB 274(JUD) was moved from the House Judiciary Standing Committee. CHAIRMAN GREEN called a brief at-ease at 5:50 p.m., then called the meeting back to order. CSSB 319(RLS) - ARBITRATION The next item of business was CSSB 319(RLS), "An Act relating to arbitration; amending Rules 57(a) and 77(g), Alaska Rules of Civil Procedure; and providing for an effective date." It had been heard on May 5, 1998. Number 1850 REPRESENTATIVE ROKEBERG advised members that he had provided additional information, including testimony before the Senate Judiciary Committee and a copy of the standard local listing service document titled, "Earnest Money Receipt and Agreement to Purchase," which is used in Anchorage. He referred to the section of the latter document titled, "Mediation/Arbitration of Disputes," which says, "If a matter is not resolved through mediation, the matter shall then be submitted an decided by binding arbitration pursuant to Rules of the American Arbitration Association, or litigation, but not both." He told members that buyers and sellers may initial their preferences in choosing one or the other of those. Number 1935 REPRESENTATIVE ROKEBERG made a motion to adopt an amendment to reinsert, on page 5, line 23, Section 11, an effective date of January 1, 1999. He stated his belief that an amendment on May 5, 1998, had eliminated the effective date, and he said this would provide sufficient time for businesses and others affected to reprint forms to ensure consistency with this new legislation. REPRESENTATIVE ROKEBERG next referred to the phrase, "or a separate document" on page 2, line 15. He said it does allow for an addendum, which was one of his concerns. CHAIRMAN GREEN told Representative Rokeberg he didn't recall that amendment to Section 11. REPRESENTATIVE ROKEBERG restated his motion and his understanding from the previous hearing. CHAIRMAN GREEN asked whether there was any objection. Hearing none, he announced that the amendment was adopted. Number 2052 REPRESENTATIVE ROKEBERG noted that there was another amendment, 0-LS1545\F.1, B way it is drafted confuses him. However, he wanted to go on record stating its purpose. He told members that if an arbitration provision allowed for an appeal, that would be exempt under the provisions on page 3, subsection (c). In other words, if there is a nonbinding arbitration provision, they wouldn't have to meet the standards here. REPRESENTATIVE ROKEBERG made a motion to move from committee CSSB 319(RLS), as amended, with individual recommendations and attached zero fiscal note. Number 2173 REPRESENTATIVE BERKOWITZ objected. He explained that he has concerns, as he had not heard testimony from the alternative dispute section of the bar, nor from the American Arbitration Association, that this kind of language is acceptable and that the pattern has proven functional in the past. CHAIRMAN GREEN pointed out that it is voluntary. Number 2243 REPRESENTATIVE ROKEBERG mentioned that he had talked to a number of people in various business elements of the state, particularly the real estate associations. He said the Alaska Real Estate Association and the Anchorage Real Estate Association do not formally object to this bill. Representative Rokeberg said he had also been concerned about such businesses as investment bankers and broker/dealers, which use arbitration as a rule, but that there can be an addendum or separate recitation of this language in their agreements, rather than creating a separate form. CHAIRMAN GREEN asked whether the objection was maintained. REPRESENTATIVE BERKOWITZ said yes. Number 2341 CHAIRMAN GREEN requested a roll call vote, then noted that there was no quorum. He called an at-ease. TAPE 98-89, SIDE A Number 0006 CHAIRMAN GREEN called the meeting back to order at 6:55 p.m., following an at-ease of approximately 45 minutes. Present were Representatives Porter, Rokeberg, James and Green. REPRESENTATIVE ROKEBERG renewed his motion to move CSSB 319(RLS), as amended, from committee with individual recommendations and attached zero fiscal note. CHAIRMAN GREEN asked whether there was any objection. There being none, HCS CSSB 319(JUD) moved from the House Judiciary Standing Committee. SB 17 - CRIMINAL TRANSMISSION OF HIV Number 0040 CHAIRMAN GREEN announced the committee would address SB 17, "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)," sponsored by Senator Taylor. WAYNE MALONEY, Legislative Assistant to Senator Robin Taylor, Alaska State Legislature, came before the committee. He explained the bill has been extensively heard in the House Health, Education and Social Services (HESS) Committee. Mr. Maloney informed the committee that SB 17 was introduced with the goal of putting Alaska in a proactive position when it comes to dealing with individuals who knowingly place others at risk of HIV infection. He stated that 27 other states have adopted specific laws dealing with criminal felonies for knowingly transmitting or exposing others to HIV. MR. MALONEY pointed out that SB 17 is brief and to the point. It creates the crime of criminal transmission of HIV. It covers the actions and conduct known to transmit the disease. The legislation doesn't criminalize the disease; it criminalizes irresponsible conduct that puts others at risk. It also doesn't shift the burden of proof to the defendant; it must be proved that the defendant knew that he or she was infected and (indisc.) of being exposed. The provision of an affirmative defense protects the defendant and does not shift the burden of proof. Senate Bill 17 is modeled on an Illinois statute, which has been upheld in both the state appellate and supreme courts. He indicated he would answer any questions the committee may have. Number 0207 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, came before the committee. He said, "I know you've heard testimony about this bill before. I know you've heard testimony that there is, under Alaska current criminal law, ways in which this kind of conduct, at least at the most egregious and someone who intentionally passes on, or attempts to, can prosecuted for attempted murder. And on the lower end, there is a misdemeanor offense of reckless endangerment that is a possibility for prosecution. I'm not going to sit here and tell you that these are the best laws to prosecute under, but there are at least possibilities and I think in appropriate cases we can use those laws. As prosecutors, however, we review this problem as a public health problem and, in some ways, a mental health problem. Some of the cases that we've heard about, at least anecdotally, they haven't formally been submitted for us for prosecution, involve people who have -- mentally retarded people, people with some intellectual functioning problems, both the person who is infected and the partner." MR. GUANELI continued, "It's hard to know what they understand about their particular situation. And those kinds of cases we do not believe are really adequately dealt with under ... as a criminal law problem, but really as a public health and a mental health problem and that's where we think the efforts ought to be addressed. To the extent that this does have chilling effect on people coming forward or getting tested, I think that's a shame because it really needs to be dealt with as a public health issue. I understand the Dr. Middaugh from the Division of Epidemiology is on the line. I don't know if you need any further testimony from him, but I believe he is available. That concludes my comments, I'd be happy to answer any questions that you might have." Number 0354 CHAIRMAN GREEN said Mr. Guaneli spoke about prosecution. He asked, "Is the fact that it's knowing, does that give you some reassurance? I mean I know that's a lower standard to prove, but I'm just wondering if ... as you said, between these two partners is that still a pretty difficult thing to try and prove? I guess if he's got a test in front of him or some place, then he would have to be knowingly but...." MR. GUANELI stated, "That's correct. It's certainly if you've got a test or if a doctor has told you. I think even in some circumstances, the definition of 'knowing' under our law is practically certain. So I think even in some circumstances something even less than a test result might allow prosecution under statute. And that's certainly ... it's conduct that should not be condoned. There is no question about that, but the question is how to address it and whether a person belongs in jail or whether, you know, some kind of treatment ought to be offered. That's really, I guess, a question for you to decide." Number 0418 REPRESENTATIVE JAMES said the argument that she has heard is that these people want to get tested. She said she can't buy into that as an effect to this bill. Representative said, "I just don't understand that argument. And you mentioned it too that, you know, you think that they won't get tested. I just don't see that that's an effect." REPRESENTATIVE PORTER said the bill raises a misdemeanor to a felony. He said, "You can throw in how many more folks may not register because of that or want to get tested. I can't answer that question, but the problem right now is for all the felony crimes you have to prove that not only did they know that they had HIV, but they intended to transmit it, and that's pretty tough if not impossible. Reckless endangerment, a class A misdemeanor, which you can go to jail for a year for, is the same elements as the felony that's established in this crime - knowing you have it and engaging in a practice that ... is likely to give it. And so most everybody agrees that in that kind of a situation of these elements that reckless endangerment could be used, but it's a misdemeanor. So basically, what this does is raise a misdemeanor to a felony." Number 0670 REPRESENTATIVE ROKEBERG indicated he had heard this legislation two years ago in the House HESS Committee. He then made a motion to move SB 17 out of committee with individual recommendations and with the attached fiscal notes. There being no objection, SB 17 moved out of the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 7:05 p.m.