Legislature(2001 - 2002)
02/26/2001 01:38 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
February 26, 2001
1:38 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator John Cowdery
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
Senator Dave Donley, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 97
"An Act relating to fees for probation and parole."
PREVIOUS COMMITTEE ACTION
SB 97 - See Transportation minutes dated 2/26/01.
WITNESS REGISTER
Ms. Loretta Brown
Staff to Senator Jerry Ward
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Introduced SB 97
Mr. Bruce Richards, Special Assistant
Office of the Commissioner
Department of Corrections
4500 Diplomacy Drive, Suite 109
Anchorage, Alaska 99508-5927
POSITION STATEMENT: Opposed to SB 97
Ms. Lynda L. Zaugg, Director
Division of Community Corrections
Department of Corrections
4500 Diplomacy Drive, Suite 109
Anchorage, Alaska 99508-5927
POSITION STATEMENT: Testified on SB 97
Ms. Barb Brink
Alaska Public Defender Agency
900 West 5th Avenue, Suite 200
Anchorage, Alaska
POSITION STATEMENT: Testified on SB 97
Mr. Michael Stark
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on SB 97
Mr. Robert Buttcane
Division of Juvenile Justice
Department of Health &
Social Services
PO Box 110601
Juneau, Alaska 99801-0601
POSITION STATEMENT: Opposed to SB 97
ACTION NARRATIVE
TAPE 01-5, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:38 p.m. Present were Senator Therriault, Senator
Ellis and Chairman Taylor. Senator Cowdery arrived at 1:43 p.m.
Chairman Taylor announced the first order of business would be SB
97.
SB 97-PROBATION AND PAROLE FEES
MS. LORETTA BROWN, staff to Senator Ward, said other states
have used probation and parole fees to offset the cost of
supervision. There is a common perception that criminals are
penniless and unemployable, but most offenders on probation can
afford modest supervision fees. The agreement of release for most
parolees is to find a job, and part of a probation officers job is
to help with that. By 1992, almost half of the states allowed
probation departments to charge fees for probation supervision,
ranging from $10 to $40 a month. Many of these fees are being
raised but successful programs have figured out how to recoup the
cost - nonpayment has been replaced with community service. If a
person cannot pay the fee because of unemployment or because he or
she may be in a full time rehabilitation program or, in the case of
Alaska, a person may be living in a village, probation could not be
revoked. It is not uncommon for offenders who are willfully behind
in fee payments to have also violated other conditions of his or
her probation. Therefore, it is argued that probation fee programs
are not likely to increase probation failure rates. Probation will
not be revoked solely because fees have not been paid.
MS. BROWN noted when fee collecting was first introduced many
probation officers did not like it, but administrators made it
clear that fee collection was part of the job. Rather than
detracting from casework, fee collection furthers the goal of
helping probationers avoid relapsing into criminal behavior A
study by the National Council on Crime and Delinquency found that
collections rarely occupied more than two percent of a probation
officers time. The requirement of fee payment is a good barometer
of a probationers overall adjustment while on probation. Mr. Monty
Morgan, Director of Adult Probation in Jefferson County, Texas,
said there is a direct correlation between probation compliance and
fee payment. Offenders learn to budget and meet ongoing financial
obligations and they learn to accept responsibility for making
payments and taking charge of their lives.
MS. BROWN said fees were collected in Alaska a few years ago but
the program was rescinded. One of the reasons for being rescinded
was because the money collected was not enough to offset the cost
of the program. Even though the fee does not completely cover the
cost of supervision, it would augment the budget and provide for
extra services that are not affordable now.
SENATOR THERRIAULT asked how the fee of $3.30 was arrived at.
MS. BROWN replied that SB 97 says the fee should be no less than
$1.50 a day, which come to $45 a month. This fee was proposed a
few years ago in another bill and Senator Ward wanted to use it
again.
Number 594
MR. BRUCE RICHARDS, Special Assistant to the Commissioner,
Department of Corrections (DOC), said DOC is opposed to SB 97 based
on the department's past experience with probation and parole fees.
DOC agrees that fees are appropriate for other states but not for
Alaska. 1989 through 1991, when DOC had a fee of $45 a month, the
collection rate was approximately eight percent. Many offenders,
when coming out of an institution, do not have the ability to pay a
fee on top of victim restitution fines and other things of this
nature. It is also difficult for people of rural Alaska where
there is not much opportunity for employment. SB 97 would require
a collection fee of not less than $1.50 per day, and DOC would set
this rate in regulation. SB 97 requires that fee collections be
contracted outside of DOC. DOC has had some difficulty in
researching who would take this type of contract. Collection
agencies are only interested in collecting on delinquent debt, but
a bank could set up an escrow account to administer collection of
fees.
MR. RICHARDS said in reference to the Texas fee, the fee is
commonly made the first priority of collections prior to victim
restitution. When the collection fee is moved to the top of the
list, the collection success rate goes up but victims who are in
line for restitution become second to the fee. DOC does not see
how the fee would benefit the state monetarily. Using the escrow
system as an example, there would be a $35 set up fee, which the
state would be responsible for when the offender is released, and
an annual maintenance fee.
Number 850
SENATOR COWDERY asked if a person's Permanent Fund Dividend (PFD)
could be used for the fee.
MR. RICHARDS said offenders do not receive a PFD the first year he
or she is out of prison - the state has already taken it.
SENATOR COWDERY asked if the second year PFD could be used.
MR. RICHARDS said if it were available it would be on the list
after child support, victim restitution and other things in statute
that have to come first.
SENATOR COWDERY asked what had a higher priority than education,
public safety and transportation. He asked where the money should
come from to support the probation system - should something else
be cut.
MR. RICHARDS said offenders are required to pay for their own
treatment after he or she leaves the institution. He does not know
where, in line, the probation fee should be, but child support and
victim restitution would come above probation fees.
Number 1011
SENATOR THERRIAULT asked for more information about the previous
fee program and how long it was in use.
MR. RICHARDS said the program was from 1989 to 1991.
SENATOR THERRIAULT asked about the percentage of people who paid
the fee.
MR. RICHARDS said DOC went back and found receipts for the program
and divided that number by the number of cases - that number came
to eight percent. The last year of the fee program approximately
$120,000 was brought in, and there were fewer than 3,000
probationers on the caseload.
Number 1062
CHAIRMAN TAYLOR said he would like to know how a person on
probation made the payment during the time the program was in
operation. Was the payment made to a different agency or office?
He said there probably was not a great deal of zeal on the part of
the probation officer to make sure the fee was collected. He would
like to know who kept track of the money, how it was handled, and
why it was a couple years later when the collection rate was
discovered to be eight percent.
MS. LYNDA ZAUGG, Director of Community Corrections, DOC, said the
old policy said, "Probation compliance is the responsibility of the
supervising probation officer. Whereas the responsibility for
payment rests with the probationer. The probation officer shall
arrange and monitor the probationer's payment, which will be made
to the clerk, designated for this purpose by the chief probation
officer."
CHAIRMAN TAYLOR asked if "clerk" was the clerk of court.
MS. ZAUGG said it is a clerk in the probation office. The clerk
accepted the money and forwarded it to DOC accounting in Juneau,
which then forwarded it to the general state account.
CHAIRMAN TAYLOR noted the fee picked up another $100,000 in one
year for the general fund.
MS. ZAUGG said the amount was $120,400.
CHAIRMAN TAYLOR said the $120,400 may not have supported the
program but it helped.
Number 1217
MR. RICHARDS said there was also the community work service
component for the people who did not pay the fee. She said keeping
track of this was very intensive and time consuming.
CHAIRMAN TAYLOR said that when the program stopped the community
lost the benefit of the service and the state lost the revenue.
MR. RICHARDS said that was correct, but probation officers were
able to spend more time providing supervision as opposed to
tracking money and community work service hours.
CHAIRMAN TAYLOR said he felt DOC did not want to collect the fees
and therefore the program did not succeed.
CHAIRMAN TAYLOR said on prioritization, the legislature often times
makes decisions on where money should go first.
It would seem to me that if such a program were to be
implemented, as contemplated in this bill, before that
guy can make any child support payments, or make any
restitution payments, or make any payments for his
treatment, he's got to be out of jail and on probation.
And if we have to, as budgets and revenues around here
decline, if we have to cut back on probation and more
people have to stay in jail longer, then the first entry
is he's got to get on probation and get back out on the
street where he can make this money. It would seem to me
that would be your number one priority in making sure
that department was taken care of. And if revenues were
necessary to do that from the individual, for him to get
back on the street, as opposed to sitting further in
jail, I don't think there's a whole lot of them that
would feel real bad about paying a couple three bucks to
be out. And that's literally what the choice is that
you're talking about. I would think we could probably
take another look at that.
Number 1359
SENATOR COWDERY said the incentive is to stay on parole and if a
person does not pay they will go back to jail. He said it may not
be cheaper, but after a person is paroled it would be easy to come
up with $100 a month.
MS. BARB BRINK, Alaska Public Defender Agency (APDA), testifying
via teleconference from Anchorage, said fees are not simply
collected by garnishing wages or attaching PFD checks but also by
filing petitions for parole and probation and from filing petitions
for revoked parole. APDA represents people accused with not making
a good faith effort to pay the fee. APDA would help collect data
concerning the parolee's income - what he or she were doing with
their time, or whether he or she were in treatment or if they were
engaged in a seasonal occupation that excluded them from earning
money. APDA gathers this evidence to persuade the court that the
person was making a good faith effort. Ms. Brink said SB 97
assumes that everyone is completely capable of paying the fee, and
the bill requires APDA to gather the evidence and prove that people
are not able to pay.
MS. BRINK said the fiscal note is small because APDA anticipates a
half time attorney who would not start until the program is in
operation. She wanted to highlight how dangerous it is to predict
this type of thing. There is no way of knowing how many cases APDA
would have. The language is mandatory; every person does have to
be ordered to pay, even if the judge can see the person does not
have the mental facility to come up with this type of money. Ms.
Brink said there are many indigent people who would not be able to
pay.
MS. BRINK said that in fiscal year 1998, APDA handled over 3,800
new felony and juvenile delinquency cases. If only three fourths
of these cases had some type of probation or parole, and if 10
percent of these people are unable to pay, this would be a huge
additional caseload - over 300 new cases per year. Because of
this, SB 97 could be more expensive than the fiscal note APDA has
submitted.
Number 1568
SENATOR COWDERY asked how many of the 3,800 cases were bonded.
MS. BRINK said APDA does not have the ability for this type of
data, but very few of APDA's charged felony clients are released
from custody before his or her trial, the vast majority remain in
custody until their trial.
MR. MICHAEL STARK, Assistant Attorney General, DOC, noted there are
hidden costs in SB 97 and that the program is not likely to pay for
itself. Some of the costs are enhanced risks to public safety,
particularly for the small probation office where time will be
taken away from supervision for bookkeeping and follow up. The
past fee structure was a considerable burden for rural Alaskan
probation/parole offices because there may only be one or two
officers.
MR. STARK said the type of offender today is more serious than in
1989 through 1991. There are probably close to 4,000 probation and
parolees who are being supervised at any one time, many of which
are out for violent offenses. Mr. Stark hoped the committee would
look at the issue of diminished supervision because SB 97 would
cause some diminishment of supervision.
MR. STARK noted that it costs over $100 a day to house an offender
and her or she gets a credit of $50 a day toward paying off their
incarceration fee. It is mandatory for the parole board to revoke
parole for any offender who does not pay but who has the ability to
pay. Yet there is no measure, such as the $50 per day, so a person
may owe a lot of money and have to go back to jail for a year or
two. This would be costly for the state.
Number 1796
SENATOR COWDRY asked if there had been any consideration for
privatizing collections.
MR. STARK said the Attorney's General (AG) office pursues
collections for money owing to different state agencies. SB 97
does mandate DOC to contract out with either a "collection agency
or other person for the administration and collection of probation
fees imposed under AS 12.55.104 and parole fees imposed under AS
33.16.155." Two years ago an identical bill was introduced and DOC
made efforts to see if any collection agency would be willing to
take this on. None were willing because it would not be
financially feasible for them. Banks were looked at for setting up
escrow accounts and there would also have to be follow-up for
pursuing collections therefore more than one agency would have to
be contracted with.
SENATOR COWDERY said the court has privatized its collections.
MR. STARK said he had talked with an employee of the court system
and that person said the court does not contract out collections.
The AG's collection section still pursues fines and restitution.
MR. STARK said the target population in Alaska are not well off and
do not have the resources for paying the fee. He said the idea of
a fee is a worthy idea because these people owe a debt to society.
Mr. Stark is concerned that SB 97 would decrease supervision of a
parolee, which may cause harm to victims and their families.
SENATOR THERRIAULT asked if there was a fiscal note.
MR. RICHARDS said a fiscal note had been sent last week.
CHAIRMAN TAYLOR said his office had not received the fiscal note.
Number 2033
MR. ROBERT BUTTCANE, Juvenile Probation Officer, Department of
Health and Social Services (DHSS), Juvenile Justice, said DHSS
opposes SB 97. He said a fiscal note is being finalized but it has
not been submitted yet. DHSS has not had experience assessing
probation fees against juvenile offenders or their families.
However, the juvenile system emphasizes the competency development
of a juvenile offender equal to restoration of a victim and the
assurance of public safety. In implementing the restorative
justice model, DHSS has emphasized the need of the juvenile
offender to make his or her victim whole. A great deal of emphasis
is placed on restitution to victims. In calendar year 2000,
$132,000 was collected from the PFD in restitution that went to
victims. SB 97 lists the probation fee as the eighth of eight
priority uses for the PFD. In many of the juvenile cases, the PFD
has already been used to compensate victims for their loss.
Therefore, the monies that might otherwise have been available for
probation fees would not be accessible through the PFD. This also
places hardship on parents who are expected to contribute to the
cost of care of their child when the child is placed in an out-of-
home setting. The court orders the parent to make child support
payments that go to the state to help offset the cost of care.
Parents are also expected to contribute all or portions of the cost
for treatment or counseling such as anger management classes,
family therapy, and sex offender classes.
MR. BUTTCANE said it is not infrequent that the juvenile offender
has offended against their parent, such as stealing the car. The
offender would be put on formal probation because he or she would
need the guidance and structure that probation provides. The
offender is also expected to make restitution to the person whose
property may have been damaged as well as to the parent. SB 97
makes the minor and the parent responsible for the probation fee.
Most juvenile sex offenders offend against siblings or relatives
and a fee would add more turmoil. Offenders are removed from the
home and child support orders are imposed on the parents - SB 97
would add insult to injury to the parents.
MR. BUTTCANE added that most of the juveniles on probation are
middle adolescents, 15 and 16 years old, but there are children on
probation who are 12 and 13, and their capacity to generate income
is low. Not all 12 year olds incur restitution obligations that
would take their entire PFD but some do. There were 1,360 youth on
juvenile probation in fiscal year 2000. DHSS did and informal
inquiry to its field probation offices and asked how many families
they felt would give the court reason to find they had no ability
to pay. Based on that response, the estimate was from 60 to 70
percent.
MR. BUTTCANE said an accounting process would have to be employed
to communicate to a contractor when the juvenile was placed on
formal probation and when his or her case was withdrawn from
probation, causing a paperwork flow from DHSS to the contractor.
Delinquency dispositions are for an indeterminate period of time,
not to exceed two years, so each probation case is different.
Additional support personnel would be needed to process the
paperwork. The delinquency system does not have its own attorney;
it relies on the District Attorney (DA) in most communities. DA's
are not inclined to get involved in cases that relate to fee
processing or do litigation on whether or not a family has the
means to pay a fee. Because of this, DHSS may have to rely on
Assistant AG's who are located in Anchorage and Fairbanks for
assistance. This would increase DHSS's attorney fee payments to
the Department of Law. Right now, most juvenile cases are heard in
court without an attorney - SB 97 requires an attorney.
TAPE 01-5, SIDE B
MR. BUTTCANE said the fee would be a challenge for DHSS to
implement.
Number 2197
SENATOR COWDERY asked if people are paroled without a source of
income.
MR. BUTTCANE said the delinquency system does not have a parole
mechanism.
SENATOR COWDERY wondered how the system would get the juvenile
offenders attention without a fee. He said someone needed to be
held accountable.
Number 2133
MR. BUTTCANE said that most juvenile offender parents are active
participants in the process of holding their children accountable.
Most parents participate in the counseling and treatment processes
and they do this willingly.
CHAIRMAN TAYLOR said it seems incredible to him that 48 states can
collect some type of fee but Alaska cannot. Texas alone picks up
50 percent of the cost of supervision off the fee. Chairman Taylor
said he challenges DOC to come up with something that explains why
Alaska is so much different from Texas in being able to collect
fees. He thinks there is an opportunity for DOC to be a willing
participant in fee enhancement, and the legislature would be
willing to work with DOC in finding something the department could
work with.
SENATOR THERRIAULT asked Ms. Brown to address the questions that
had been raised during the meeting.
MS. BROWN said successful programs charge an average of $10 to $40
a month, and, generally, people on probation do not have a problem
with that amount. When they do have a problem it is usually in
some other area. Most of the cases that are being sent back to
jail are not just for nonpayment - probationers are not abiding by
other areas of the probation. Generally, it is found that caseload
is not increased and it is cheaper to have someone on probation
than to have him or her incarcerated. Most states do not revoke
probation solely on nonpayment of fees.
SENATOR THERRIAULT asked if Senator Ward considered the cases where
there was a sex offense within the family.
MS. BROWN said Senator Ward had not communicated this to her.
CHAIRMAN TAYLOR said he would hold SB 97 in committee until members
had a chance to review the fiscal note.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 2:42.
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