Legislature(1997 - 1998)

05/07/1998 04:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                
     - 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:                   
 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                  
 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                
 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                     
 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                
 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                     
 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               
 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                     
 4/25/97      1485     (S)  READ THE THIRD TIME  SB 17                         
 4/25/97      1485     (S)  MTN TO REMOVE (ADM, LAW)FN ANALYSES                
 4/25/97      1485     (S)  ADDRESSING FISCAL IMPLICATION ADP Y14              
 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                     
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             
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            
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,              
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            
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              
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                
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                
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                    
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                   
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               
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                  
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                
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             
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.                           
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee                
meeting at 7:05 p.m.                                                           

Document Name Date/Time Subjects