HB 357-RESTITUTION  REPRESENTATIVE RALPH SAMUELS, sponsor of HB 357, told members that HB 357 is a conforming statute to art. 1, sec. 24, of the Alaska Constitution. In 1994, the legislature approved and put on the ballot a victims' right amendment to the constitution, which was overwhelmingly approved by the voters. One of the rights was the right to restitution from the accused. HB 357 mandates the court to order restitution and allows the court to set up a payment schedule based on the offender's ability to pay. The bill contains one exception to the requirement, and that is at the express request of the victim. During the House committee process, discussion centered around the fact that sometimes victims of violent crimes never want to deal with those crimes again and decline restitution. He noted the Department of Law has drafted an amendment that deals with the technical aspects of collection and disbursement of restitution. CHAIR SEEKINS noted that Version Q was before the committee. He indicated that the bill says the court may not reduce restitution but can change the payment schedule and asked if it could require an offender to pay $1 per year until paid in full. SENATOR FRENCH thought that would have the effect of reducing the award if the offender was only on probation for 5 years and the restitution award was $500. He questioned what happens at the end of the probation period if a large portion of the restitution is unpaid. REPRESENTATIVE SAMUELS explained that the bill does not change what occurs now. He added: If something happens now, they're still on the hook for it. What the hammer is now - I couldn't talk to the very specifics of that. As we went through the process researching this bill, the advice always given was take the time to go file a civil suit as the victim. We tried to get away from that. We're trying to make it - you know, here's the guy that had his windshield smashed in, he wants to get his money back without having to hire a lawyer. That was the point of doing this. The ins and outs and the technical aspects - we didn't change anything so whatever it is now, we didn't touch it. SENATOR FRENCH said that is a very frustrating area of the law for the district attorneys, the victims, and even the defense attorneys because a criminal system gets caught up in what is, to a large degree, a civil process. He said he is glad Representative Samuels has introduced this legislation because this is a troublesome area of law. REPRESENTATIVE SAMUELS said at one time he tried to address problems with juveniles and adults in civil court in the bill: And we tried to tie it saying that automatically a civil suit would be filed and that didn't work either and as it grew and we couldn't manage it anymore, it got cut back to where we didn't change any other - we went from, on page 1 line 4, it said the court may, originally, and we changed it to shall and other than that we didn't change a lot of the substance of the way that the system works now so - you will order the restitution however long it takes the person - is the way we're headed. We tried to do more than that and make it easier but we seemed to be making it more difficult as we went down that road. I agree with Senator French, it's not easy. CHAIR SEEKINS said as he reads it, the court will not be able to consider the defendant's ability to pay restitution and it must order full restitution. He asked if the hammer is that it must be paid before the offender is off probation. MS. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), said that restitution, like fines, is considered to be a civil matter that the victim can pursue after the period of probation so it can go beyond the period of probation. CHAIR SEEKINS said he was questioning if, at the time the restitution is ordered, a civil judgment is placed against the defendant in favor of the person to whom restitution is due. MS. CARPENETI replied, "Generally the law provides, I think, in the area of restitution, like fines, that it's a civil judgment that the person can pursue." She said that maybe three or four years ago, the legislature gave to the DOL the authority to collect for victims. The department can do bank sweeps and executions against the permanent fund dividend. CHAIR SEEKINS asked at what point that free collection service ends. MS. CARPENETI believed the service continues until restitution is complete. SENATOR OGAN expressed concern about taking away all discretion from the judge to consider the circumstances when ordering restitution. CHAIR SEEKINS said he reads Sec. 12.55.051, Enforcement of Fines and Restitution, to mean the court can order restitution and non-payment can be used to cancel probation. After probation, or even if probation is not part of the sentence, the offender could be in contempt of court for non-payment of restitution. However, he believes the court has leeway if the offender can show he or she is unable to pay but is making good faith efforts and the court could even restructure the payment schedule. Therefore, the court would have some discretion to address the situation Senator Ogan described. He added that a defendant can actually request a hearing regarding inability to pay. He imagined the court would then examine whether the repayment schedule is bringing harm to other innocent people, such as the offender's family. REPRESENTATIVE SAMUELS agreed with Chair Seekins and said a judge could postpone restitution from an 18 year old who cannot pay until that person turns 25. He repeated that restitution is required by the Constitution. 9:15 a.m. SENATOR THERRIAULT referred to page 2, line 12, and asked why the reference to subsection (f) is being deleted. MS. CARPENETI said it removes the provision that allows the court to consider the level of fines and reduce them under certain circumstances. She said she does not see this bill as changing the way the court determines the amount of restitution. She said she believes the court does take other factors into consideration, but once a judge arrives at an amount, it cannot be reduced, but the payment schedule can be changed. SENATOR THERRIAULT asked for descriptions of the two subsections being deleted on page 3, section 7. MS. CARPENETI said that AS 12.55.045(e) is a provision that specifically addresses restitution in vehicle theft cases, which will no longer be necessary since HB 349 orders restitution in all cases. The removal of AS 12.55.045(f) is conforming to the rest of the provision, which says restitution must be considered no matter what the length of sentence. SENATOR THERRIAULT moved to adopt Amendment 1, which reads as follows. A M E N D M E N T 1  OFFERED IN THE SENATE TO: CSHB 357(JUD) Page 2, lines 16-19: Delete all material and insert the following: "(n) Notwithstanding another provision of law, the court shall accept (1) payments of restitution from a defendant at any time; and (2) prepayments of restitution or payments in anticipation of an order of restitution. If the recipient has elected to have the Department of Law collect the judgment of restitution under AS 12.55.051(g), the court shall forward all payments of restitution to the Department of Law within five days of the court's acceptance." Page 3, lines 3-7: Delete all material and insert the following: "(f) Notwithstanding another provision of law, the court shall accept (1) payments of restitution from a defendant at any time; and (2) prepayments of restitution or payments in anticipation of an order of restitution. If the recipient has elected to have the Department of Law collect the judgment of restitution under AS 12.55.051(g), the court shall forward all payments of restitution to the Department of Law within five days of the court's acceptance. AN UNIDENTIFIED MEMBER objected. MS. CARPENETI explained when a victim asks DOL to collect on his or her behalf, a procedure is set up that requires DOL to keep track of what has been paid to the victim. Amendment 1 makes clear that even though DOL may be collecting on a judgment, a judge or a clerk of court may accept payment on that order of restitution because, in some circumstances, the defendant may pay at sentencing. The court needs to be able to take possession of the money right then. If the victim has chosen DOL to collect, that money must then go to the DOL for accounting purposes. She said Amendment 1 is primarily a housekeeping measure. CHAIR SEEKINS announced that with no further objection, Amendment 1 was adopted. He then took public testimony. MS. BARBARA BRINK, Alaska Public Defender's Agency, said she does not object to efforts to collect restitution on behalf of crime victims, but she is not convinced that removing all discretion from the judge is the best way to do that. She said the district attorneys do a very good job at making and documenting requests for restitution and providing evidence of what is owed. Frequently, defense attorneys and their clients agree, upon receiving that documentation, it should be a part of the court order. Under HB 357, the court will be forced to order restitution in cases where the victim is not involved at all and the evidence of the cost of restitution may be less than reliable. For example, a police officer is not likely to spend a lot of time estimating the cost of damage in a simple case of a person charged with reckless driving who engaged in a fender bender in a parking lot. It is likely the victim's insurance company will pay to repair the damages. Then, the court order will require restitution on the part of the defendant so the crime victim will get a windfall. Also, the police officer's estimate could be grossly wrong. She said the current procedure for ordering restitution is simple, less time consuming, and works well. She suggested that if restitution must be ordered in every single case, there will be many more situations in which defendants cannot pay the full amount before probation is over. Therefore, instead of doing a thoughtful fact finding process at the beginning of a person's sentence, hearings will have to be held years later at the end of the defendant's probationary sentence. SENATOR THERRIAULT said the language at the beginning of the bill says, "The court shall, when presented with evidence...." He asked if that satisfies Ms. Brink's concerns. MS. BRINK replied the rules of evidence don't apply at a sentencing hearing so the question of whether or not the evidence is reliable would be "iffy." She maintained that her point was if the victim does not work with the prosecutor to document the loss, the court will be relying on a very brief investigation. SENATOR THERRIAULT asked if putting a modifier on that phrase would alleviate Ms. Brink's concern. He suggested specifying that the evidence must be documented or substantiated. MS. BRINK said it would. SENATOR OGAN suggested using the word "reasonable." CHAIR SEEKINS recounted a personal situation in which he had to provide the court with the cost of repairs to his vehicle to prove clear and convincing evidence of the loss. He said the court is aware of what constitutes evidence. REPRESENTATIVE SAMUELS pointed out the phrase, "when presented with evidence," was added by the House Judiciary Committee. He was told by DOL afterward that it was redundant because a court would never order restitution without a receipt. MS. SARA NIELSEN, staff to Representative Samuels, added that restitution is ordered after a person is convicted of a crime so the "fender-bender" argument would not hold. SENATOR FRENCH noted that the "fender-bender" could have been caused by a person who was driving recklessly and added, "...now the issue is what do you pay to fix the car and her example is a rooky cop says looks like $2,000 to me and maybe it's 5 - maybe it's 1 - and whether or not the rooky cop's estimation in the field on a busy day is sufficient to justify the restitution award that could eventually lead to the revocation of a person's probation if it's not satisfied." MS. NIELSEN responded that according to DOL, the evidence must be documented. MR. STEVE BRANCHFLOWER, Director of the Office of Victims' Rights, stated support for HB 357, particularly the provision that allows the court to take into account the offender's present ability to pay. At present, once an offender is sentenced to jail time, the court reduces restitution because that person's earning potential during the incarceration period is nominal. That reduction in restitution does not allow for a potential windfall or the possibility that the offender will get a job after being released. To the extent the restitution awards are reduced, that is inconsistent with a victim's right under art. 1, sec. 24, to get full restitution. As previously mentioned, the court has jurisdiction and discretion under AS 12.55.051 to make allowances where a defendant can show good faith efforts to pay restitution but is no longer able to. He agrees that adding a modifier to the word "evidence" on page l, line 4, would be redundant because the courts never order restitution without evidence of the cost. CHAIR SEEKINS announced that with no further participants, public testimony was closed. SENATOR OGAN moved to add the word "reasonable" before the word "evidence" on page 1, line 10, and objected for the purpose of discussion [Amendment 1]. SENATOR THERRIAULT noted that previous testifiers have pointed out that language is unnecessary. He suggested deleting it instead of modifying it. SENATOR FRENCH asked the sponsor if his desire is to have restitution ordered in every single case no matter what the defendant's ability to pay. REPRESENTATIVE SAMUELS replied: To me, you want to get away from the defendant's current ability to pay. As far as the language being in or out, what they said - it wasn't necessary but it certainly didn't hurt anything. So, I'll be perfectly honest, this is keeping peace in the family to keep the language in there. I'll be perfectly honest, it didn't hurt anything. And to add reasonable, and if I could, the amendment should also include line 4 also. There's two places where there's.... CHAIR SEEKINS asked if the amendment shortened the debate in the [House Judiciary Committee]. REPRESENTATIVE SAMUELS said it did. SENATOR OGAN amended Amendment 1 to add "reasonable" to line 4 as well. REPRESENTATIVE SAMUELS expressed concern that adding the word "reasonable" will give the lawyers one more thing to argue about and that the issue will become who is the better attorney rather than making sure the victim gets paid. SENATOR OGAN suggested it might keep the victim from overcharging. He said he has no problem mandating that people pay restitution but is concerned that if the bill takes away the judge's discretion to decide whether to order restitution, it should provide for discretion regarding the amount. SENATOR THERRIAULT commented that the word "reasonable" will apply to the evidence, not the price. CHAIR SEEKINS noted that is why he suggested "clear and convincing." SENATOR FRENCH felt that standard would be too high. SENATOR THERRIAULT remarked, "I think we're just asking what kind of evidence, what kind of documentation, what you need to show the court that you have actually suffered an out-of-pocket expense and again, it's not whether you went to the lowest price windshield shop in town, it's what you have to show that you've actually forked money out." CHAIR SEEKINS said if he had an accident, his insurance company would require him to get three estimates and to use the lowest estimate. If someone else hit him, he could get his vehicle repaired wherever he wanted to as a claimant as long as the repair cost was within reason. The victim has the right to not have to go to the cheapest repair shop to get his or her car fixed. SENATOR FRENCH questioned whether inserting "a preponderance of the" [evidence] would satisfy members' concerns. It would complicate the matter in that it inserts a civil standard into a criminal proceeding and it puts some burden on the victim to bring forward evidence. CHAIR SEEKINS said that would result in a civil judgment. SENATOR FRENCH said it is that way right now but part of the idea [behind HB 357] is to not force the victim to go through the hoops of the civil system and instead to use the power of the criminal court to get restitution. REPRESENTATIVE SAMUELS offered, "...on a preponderance - it's really a 50 percent, 51 percent, that's not a monetary amount. It's kind of an apples and oranges to me. A suggestion I just got from the Department of Law was maybe, perhaps, credible evidence...." SENATOR THERRIAULT agreed "credible" was a good suggestion because it would apply to a valid receipt. SENATOR THERRIAULT moved to amend Amendment 1 to change the word "reasonable" to the word "credible." CHAIR SEEKINS announced that without objection, Amendment 1 was amended. CHAIR SEEKINS asked if there was further discussion on Amendment 1 [to insert the word "credible" prior to the word "evidence" on lines 4 and 10 on page 1]. There being none, Amendment 1 as amended was adopted. SENATOR OGAN moved SCS CSHB 357(JUD) and its attached fiscal notes from committee with individual recommendations. CHAIR SEEKINS announced that without objection, the motion carried.