HB 55-COMPENSATION FOR WRONGFUL CONVICTION  8:22:52 AM CHAIR LYNN announced that the next order of business was HOUSE BILL NO. 55, "An Act relating to compensation for wrongful conviction and imprisonment." 8:23:10 AM REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, as prime sponsor, presented HB 55. He asked the committee to think about the events in their lives, such as weddings, births, graduations, deaths, retirements, and other significant events that had occurred. He further asked the committee to include the creation of the Internet, the terrorist attacks of September 11, 2001, and globalization of technology. He then asked the committee to imagine that during all that time they had been incarcerated in a small prison cell for a crime they had not committed. He stated that HB 55 sought to correct the suffering of Alaskans who had been wrongfully incarcerated. REPRESENTATIVE KAWASAKI stated that individuals suffer the consequences of their mistakes; however, the State of Alaska suffers no consequences when its legal system makes a life- altering mistake by incarcerating an innocent Alaskan and "stealing those years away." He said the proposed legislation would create a mechanism to provide financial compensation for those lost years to help the wrongfully convicted get back on their feet. Under HB 55, the exonerated individual would receive $50,000 a year, with a cap of $2 million, which meets the federal recommendations under the Federal Justice for All Act of 2004, and that it is the threshold most commonly used in the 30 other states that currently have wrongful conviction compensation statutes. Representative Kawasaki stated that while no amount of money could truly compensate for the time spent wrongfully incarcerated, the concept was to provide finances that would help the wrongfully convicted get back on his/her feet, reintegrate into society, and start a life after prison. REPRESENTATIVE KAWASAKI said the proposed legislation would proactively protect the state coffers by instituting a compensation plan to help the reintegration process rather than waiting for those who have been exonerated to sue the state for civil damages. He reported that according to the Alaska Innocence Project, "the average statute amount is roughly $330,000 per exonerated individual, while the average civil award amount is about $3.6 million." He said the proposed legislation would establish a $50,000/year compensation and protect the state from future civil suits. He related that while there had not been any exonerations in Alaska that would have fallen under "this current statute, as written," the overall rising wave of exonerations over the past 15 years meant that it was just a matter of time before it happened in Alaska. Representative Kawasaki concluded that the proposed legislation was "a proactive measure that rights the state's wrongs and protects us from future lawsuits, while fulfilling our moral duty as stewards of the public justice system." 8:27:17 AM CHAIR LYNN related that he had just seen on television that someone in the Lower 48 had just been exonerated from death row after about 30 years in prison, and he remarked that he did not know how it would be possible to adequately reimburse a person in that circumstance. He indicated that coming up with a formula for compensation would depend on many factors, including how long the person had been incarcerated, the age of the person when incarcerated, what the person's occupation was, and the person's physical condition. He asked the bill sponsor how he arrived at the proposed $50,000. REPRESENTATIVE KAWASAKI answered that amount was roughly the average of the amount the other states had incorporated similar statutes. In response to Chair Lynn, he said the formula used to determine the amount is complex. He indicated that when litigation is involved, factors such as whether or not the individual was in the prime of his/her life are taken into consideration. CHAIR LYNN expounded on the idea that arriving at a formula would be complicated because of all the variables involved. 8:29:19 AM REILY LEONARD, Staff, Representative Scott Kawasaki, Alaska State Legislature, on behalf of Representative Kawasaki, prime sponsor, related that the $50,000/year threshold was chosen, because that was the amount that Congress had established in 2004 in the aforementioned Act. He indicated that Congress had also established a $100,000 threshold for time spent on death row, which was seen as much more severe. He said some states adopted that standard, as well; however, he noted that Alaska does not have the death penalty, and the sponsor chose not to include that factor. 8:30:04 AM REPRESENTATIVE VAZQUEZ remarked that although it is extremely difficult to convict someone in Alaska - doing so is more common in the Lower 48 - she could envision in the future there may be someone who is wrongfully convicted [in Alaska]. 8:30:56 AM KATHLEEN A. FREDERICK, Chief Administrative Law Judge, Anchorage Office, Office of Administrative Hearings (OAH), Department of Administration (DOA), explained the reason the department did not submit a fiscal note was because at the present time there was no way to determine how many claims would result from the proposed legislation. 8:31:48 AM BILL OBERLY, Executive Director, Alaska Innocence Project (AIP), stated that the issue brought up under HB 55 is one of importance to AIP. He said the issue is neither conservative nor liberal, neither related to criminal prosecution nor to criminal defense, but is an issue of justice. He said AIP brought Steve Barnes - a man who was exonerated in New York after about 24 years in prison - to Alaska. CHAIR LYNN recollected having met Mr. Barnes. MR. OBERLY relayed that when asked, Mr. Barnes had illustrated how difficult the issue of compensation was by asking what price a person would put on having given up all his/her 20s, 30s, and half his/her 40s to sit in prison. Mr. Oberly said that was a sobering question, because "there's not enough money to sit in prison for a crime you did not commit." He said the federal government set the [$50,000] amount under President George H. Bush. He relayed that the State of Texas started out at $50,000, but now had the highest exoneration compensation rate of $80,000/year of wrongful conviction. MR. OBERLY referenced Chair Lynn's comment about a man shown on television who had been exonerated after 30 years on death row, and he offered his understanding that that person was Anthony Ray Hinton, in Alabama. He said Mr. Hinton sought recovery through the judge in the case, who awarded Mr. Hinton $1,000 for every day he had been in prison. He cautioned that without a statute in place, "those are the kind of awards that can be ... realized out there." He echoed the bill sponsor's remarks that HB 55 would provide a set amount of compensation, while also setting up a known amount that would be satisfactory without being at "the high end." 8:35:33 AM MR. OBERLY concurred with Representative Vazquez that it is difficult to get a conviction [in Alaska]. He said through good police and prosecutorial work, the vast majority of convictions are accurate. Notwithstanding that, he said Alaska's system is not perfect; therefore, he echoed the bill sponsor's statement that it is the state's moral duty to correct wrongful convictions. 8:36:07 AM REPRESENTATIVE TALERICO asked Mr. Oberly if there were statistics available showing how many wrongful convictions had occurred in Alaska that had been exonerated or whether the state had ever been involved in a civil suit related to that situation. MR. OBERLY answered that there had been no exonerations, to date, in Alaska. He indicated that AIP thinks it has identified a few wrongful convictions that have occurred in Alaska, and it is in the process of determining whether it can prove them in court; therefore, there may be a situation coming up where the proposed statute could be utilized. He said Alaska's system generally works as it should; therefore, wrongful convictions in the state are rare. He said there may have been civil suits for wrongful arrests, but that is not what was being addressed in this instance. He offered his understanding that there had not been any civil suits brought for wrongful conviction in Alaska. 8:38:06 AM REPRESENTATIVE KELLER asked if the proposed legislation would provide an incentive for lawyers to look for wrongful convictions, which may result in more litigation. MR. OBERLY responded that wrongful convictions are all he covers, and they are "one of the most complex and difficult cases to establish." He said he did not think there were any lawyers that were "struggling enough to undertake this as their money-making proposition." He explained that an average case takes 12 years. REPRESENTATIVE KELLER said Mr. Oberly's response was helpful. 8:40:07 AM CHAIR LYNN, after ascertaining no one further wished to testify, closed public testimony on HB 55. REPRESENTATIVE KELLER indicated he did not think anything would prevent the state from making reparations for wrongful convictions on a case-by-case basis. He said he was struggling with the idea of creating statute for a situation that had not occurred in Alaska, but said he did not think there was any reason there could not be "reparations in unusual circumstances." 8:41:07 AM REPRESENTATIVE KAWASAKI responded that he did not recommend operating on a case-by-case basis. He said he thought having a prescriptive way to [reimburse] any wrongfully convicted person "is the best way to go," and he said he thinks 30 other states had agreed to that. Further, President George W. Bush, in signing the Act in 2004, "recognized that, too." 8:42:00 AM REPRESENTATIVE KREISS-TOMKINS moved to report HB 55 out of committee with individual recommendations and the accompanying [zero] fiscal note. There being no objection, HB 55 was reported out of the House State Affairs Standing Committee.