Legislature(2003 - 2004)
01/26/2004 02:05 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 348 - NOTICE RE OFFICE OF VICTIMS RIGHTS [Contains brief testimony in support of HB 357.] Number 0128 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 348, "An Act relating to the rights of certain victims of crime to receive information about the office of victims' rights." House Bill 348 has four prime sponsors: Representatives Stoltze, Dahlstrom, Samuels, and McGuire. Number 0190 REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, one of the prime sponsors of HB 348, offered that this bill is one of the simpler parts of a "victims' rights package" being introduced by members of the House. The bill will require law enforcement officers and prosecutors, at the time of initial contact, to notify victims, via a printed brochure or other written material, that the Office of Victims' Rights (OVR) exists and is available as a resource. The OVR, he noted, is an agency that is located within the legislative branch of government, was modeled statutorily on the Office of the Ombudsman, and was created to ensure that the constitutionally guaranteed rights of crime victims are upheld. Article I, Section 24, of the Alaska State Constitution details the rights of crime victims; this provision of the Alaska State Constitution was adopted in 1994. He noted that the OVR currently prints a brochure detailing its services. REPRESENTATIVE GRUENBERG opined that HB 348 is a very fine bill. He raised the concern, however, that initial contact may not always be the best time to give information to the victim of a crime; he offered instances of when the victim is unconscious, in shock, inebriated, or underage as examples. He pondered whether it might be better to alter the bill so that it leaves the time of notification up to the discretion of the person giving it. REPRESENTATIVE STOLTZE posited that "victim" is broadly enough defined in statute to allow for instances in which the actual victim is underage or deceased - in those instances the notification would be given to family members. CHAIR McGUIRE suggested clarifying that issue through additional research. REPRESENTATIVE GARA noted that HB 348 adds a fifteenth [right] under AS 12.61.010(a), and remarked that this [right] seems reasonable to him. He added, however, that he wanted to make sure that HB 348 is actually needed. He asked whether there is evidence that law enforcement or prosecutors are currently not notifying victims of the existence of the OVR. REPRESENTATIVE STOLTZE said that despite everyone's best intentions, there are instances where victims are not being notified until far too late in the process. He remarked that HB 348 is part of a broader education process, adding that sometimes a statute is the best way to go about ensuring that certain actions are taken. He mentioned that someone relayed to him an instance of being told something along the lines of, "We're not required to tell you about it," with the implication being that victims are supposed to find out on their own about the OVR. Number 0550 CHAIR McGUIRE, one of the prime sponsors of HB 348, noted that the OVR has relayed that while most law enforcement officers and prosecutors do notify victims about the existence of the OVR, there are some cases where notification has not occurred; some victims do not get in touch with the OVR until too late for the OVR to assist them. She mentioned that in the case of victims' rights, it is not always clear how those rights are to be upheld; thus the goal of HB 348 is to ensure, via statute, that victims are notified about the existence of the OVR. Things get very harried when a crime has been committed, she remarked, with a lot of activity taking place, and that's one of the reasons that Miranda rights violations take place, for example; HB 348 is intended to clarify that notification of the OVR is one of the steps that must be taken upon initial contact. REPRESENTATIVE GARA asked why victims of class B and class C misdemeanors are not listed among those that are to be notified of the existence of the OVR. REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 348, offered his understanding that the OVR covers felonies. REPRESENTATIVE STOLTZE added that the OVR has jurisdiction only over certain types and classes of crimes; for example, the OVR would not have jurisdiction over [misdemeanor] property crimes. REPRESENTATIVE SAMUELS suggested that victims of felonies need to know what their rights are in much the same way that defendants need to be notified of their rights; the sponsors have simply chosen the OVR, via HB 348, as the vehicle though which to tell victims about their constitutional rights. He referred to the OVR as a victim's ombudsman, opined that the bill does not impose a big burden on law enforcement officers or prosecutors, and noted that it does not have much in the way of penalties for noncompliance. He suggested that if it is later found that the OVR's jurisdiction needs to be expanded, then that can be done through a different bill. REPRESENTATIVE GARA asked whether the OVR is statutorily precluded from helping victims of crimes other than those currently listed in HB 348. Number 0864 STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR), Alaska State Legislature, explained that the OVR has been in existence for approximately 18 months, during which it has handled several hundred cases. One of the things that the OVR discovered, he relayed, is that most of its clients learned about the OVR either at the last minute or just at the very time when they had to make critical decisions and was oftentimes too late. The problem, he outlined, is that many rights which victims have are tied into various stages of the criminal process and are thus time sensitive. For example, victims have specific rights during the investigative stage, the arraignment stage, the bail-hearing stage, the trial stage, and so forth. Therefore, if victims are not aware by a particular point in time that they have certain rights specific to a given stage in the criminal justice process, then those stages go by without an invocation of the rights associated with them. MR. BRANCHFLOWER surmised that the number one reason for the commonly heard refrain of, "Boy, if I'd just known about you ... six months ago ..." or, "... a year ago ..." seems to be simply a lack of awareness that the OVR exists as a resource for crime victims. To remedy this, he explained, the OVR has undertaken a very aggressive program to educate those in the criminal justice system: police agencies, victim support organizations, district attorney offices, judges, and so forth. The OVR has given more than 40 presentations in the last eight months, but this is only just scratching the surface; what is needed, he opined, is a law like HB 348, which would require law enforcement officers and prosecutors to notify victims that the OVR is available to assist them. MR. BRANCHFLOWER, turning to the jurisdictional issue, explained that by statute, the OVR has jurisdiction over all felonies and class A misdemeanors involving domestic violence or crimes against a person under AS 11.41. Thus the OVR does not have jurisdiction to provide services to victims of class B, or lower, misdemeanors. House Bill 348 would place an affirmative obligation on the part of prosecutors and law enforcement officers to notify crime victims - those in the appropriate categories - upon first contact with them and without request from them, that the OVR exists. This includes providing victims with the OVR's address, telephone number, and other contact information. The requirement imposed by HB 348 would be satisfied if officers and prosecutors give victims a brochure, which would be provided to law enforcement officers and prosecutors by the OVR. Number 1113 MR. BRANCHFLOWER relayed that upon taking a poll of police officers, they encouraged him to make the requirement as simple and clear as possible; thus HB 348 is simply a "notice" requirement rather than an "explanation" requirement. One of the reasons for this, he added, is, as Representative Gruenberg pointed out, many times victims are intoxicated, in shock, don't speak English, or for some other reason not of a mind to start learning what their rights are. The benefit of being given a brochure is that victims can take it home, read it, perhaps even read it over with family, and then decide whether to contact the OVR. He noted that the definition of victim [AS 12.55.185(17)] is extremely broad and includes immediate family such as parents and siblings. Therefore, if law enforcement or prosecutors have any contact with those folks, a brochure could be given to them [as well]. MR. BRANCHFLOWER relayed that the OVR's brochure has been distributed pretty widely - about 16,000 copies have been circulated around the state - and that it is an informational brochure which provides contact information. In conclusion, he said that "this" is one way of getting word out to victims, especially in the Bush, who would benefit from being notified, early on, of what their rights are. He suggested that there might be others available to speak about the hardships resulting from not knowing about the existence of the OVR. REPRESENTATIVE GARA raised the issue of whether information about the Violent Crimes Compensation Board (VCCB) ought to be incorporated into the OVR's brochure. MR. BRANCHFLOWER indicated that VCCB information could be added to the OVR's brochure; he noted that law enforcement agencies are currently required to notify victims about the availability of the VCCB. REPRESENTATIVE GARA expressed a desire to see a paragraph regarding the VCCB added to the OVR's brochure, which could then be handed out to all victims of violent crimes. "Should we or should we not consider doing that?" he asked. MR. BRANCHFLOWER mentioned that he is not conversant with the VCCB's jurisdiction or whether that organization has jurisdictional restraints similar to the OVR in terms of the class of crime for which someone would be entitled to compensation. REPRESENTATIVE SAMUELS raised the concern that altering HB 348 to require the restructuring and reprinting of the OVR's brochure to include VCCB information might create a fiscal note. He suggested that perhaps a written request from the committee that the OVR's brochure be altered when it is next scheduled for printing would be sufficient. "Rather than put it in the statute, as long as we get to the same place, that seems cleaner to me than having [the OVR] print up a whole new batch and throwing the [current] ones ... in the trash. Number 1295 REPRESENTATIVE GARA said he is worried that a future OVR director might not remember to restructure the brochure if such were not specifically required via statute. CHAIR McGUIRE suggested that adding intent language to the bill would be sufficient to ensure that new OVR brochures include information regarding the VCCB. REPRESENTATIVE GARA agreed, indicating that he did not want the OVR to incur additional costs. MR. BRANCHFLOWER relayed that he is intending to reprint the OVR's brochures in the spring, and that he believes he can find room on it for information regarding the VCCB. REPRESENTATIVE GARA mentioned that he would probably be offering a conceptual amendment to add [intent language]. On the issue of the OVR's jurisdictional restraint, Representative Gara asked Mr. Branchflower whether he sees any benefit to expanding the OVR's jurisdiction to include class B misdemeanors. MR. BRANCHFLOWER said no, adding that cases involving class B misdemeanors are generally resolved too quickly for assistance from the OVR to be necessary. Number 1516 JUDITH McARTHER (ph) stated that the OVR's brochure needs to be handed out as soon as possible, and relayed that she did not find out about the OVR until approximately 18 months after the incident with which she was involved took place. Number 1563 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), relayed simply that the PDA has no problem with HB 348. Number 1583 PAGE LINDER (ph) relayed that she was involved in an automobile accident in June of 2003; she was hit head on by a drunk driver without insurance. The driver left the scene of the crime, so it was also considered a hit and run incident. At the time of the accident, she was put in contact with a police officer, was taken to the hospital, and was given paperwork to fill out regarding proof of insurance and the police officer's information. She said that she'd tried to keep up with process, but it wasn't until she was given a subpoena for court and showed up there that she discovered that the drunk driver was only being charged with driving without insurance; he was not charged with reckless driving, or with driving while intoxicated, or with leaving the scene of the accident, or with hitting another vehicle. MS. LINDER mentioned that the drunk driver, after hitting her vehicle head on, had also attempted to run her over when she got out of her car; in the process of attempting to run her over, he struck her car again, leaving behind his bumper and license plate, which was later used to identify him as the person to take into custody. She explained that she'd only found out about the OVR in late August through a friend; when she contacted the OVR, she relayed that she'd wished she'd known about the OVR and its services at the time of the accident, because, by the time she did become aware of the OVR, she'd almost lost her window of opportunity to receive its help. With the OVR's help, the drunk driver was additionally charged with several felonies as well as with misdemeanor reckless driving and driving without insurance. She concluded by saying she feels that HB 348 would be a very beneficial bill. Number 1706 REBECCA ROBERTS (ph) offered her support of HB 348. She relayed that in June of 2003, her son was the victim of a violent crime - first degree felony assault. She added: Had we known about the [OVR] at the time the incident occurred, we might have been able to be afforded true justice, meaningful assistance, and compassionate treatment before the law. Victims are unlikely to attempt to assert rights they do not know they have. Victims' rights can be ensured only if resources are sufficient, legally mandated, and enforced. I urge you to pass this legislation. I did want to make a comment on the [VCCB]. I fully support their efforts. I believe their brochure was offered to me on at least five occasions, three of which physicians called me personally to let me know that our son was a candidate for [the VCCB's] services and assistance. But at no time was I ever informed about the [OVR]. MS. ROBERTS said that she was also calling in to offer her support of HB 357. CHAIR McGUIRE, upon determining that no one else wished to testify, closed public testimony on HB 348. Number 1791 REPRESENTATIVE GARA made a motion to adopt Amendment 1, a handwritten amendment which read [original punctuation provided]: Insert at p. 3 line 17 after "purpose." "To the extent feasible, new versions of this pamphlet printed after the effective date of this act shall also include information about compensation from the Violent Crimes Compensation Board." Number 1796 REPRESENTATIVE ANDERSON objected and [asked] whether the bill's sponsors concur with Amendment 1; he added that he did not think it was necessary. REPRESENTATIVE SAMUELS said he understood the intent of Amendment 1 and agreed with it, but indicated a preference for addressing it after it has been reviewed by Legislative Legal and Research Services to ensure that the wording will not cause difficulties. REPRESENTATIVE STOLTZ said he concurred with Representative Samuels's comments. Number 1853 REPRESENTATIVE GARA withdrew Amendment 1. REPRESENTATIVE OGG pointed out that generally, when rights are created, remedies follow along; HB 348, however, appears to create a right without providing a corresponding remedy for noncompliance. REPRESENTATIVE STOLTZE suggested that there are remedies available through existing statutes. MR. BRANCHFLOWER referred to AS 12.61.010(b), which says: (b) Law enforcement agencies, prosecutors, corrections agencies, social services agencies, and the courts shall make every reasonable effort to ensure that victims of crimes have the rights set out in (a) of this section. However, a failure to ensure these rights does not give rise to a separate cause of action against law enforcement agencies, other agencies of the state, or a political subdivision of the state. MR. BRANCHFLOWER characterized the above language as a hold harmless provision, with the OVR primarily providing education to law enforcement agencies. However, in extreme cases, the OVR can undertake other remedies available under its authorizing statutes; these remedies essentially amount to providing reports to the public. He added that such has been done in the past in exceptional cases. REPRESENTATIVE OGG said he just wanted it to be clear that [HB 348] creates a right that has no corresponding remedy if that right is violated. REPRESENTATIVE GRUENBERG turned attention to page 3, lines 11- 12. He asked whether class A misdemeanors involving theft would fall under the OVR's jurisdiction. MR. BRANCHFLOWER said no, reiterating that the only class A misdemeanors that fall under the OVR's jurisdiction involve domestic violence or crimes against a person under AS 11.41. CHAIR McGUIRE, upon learning that someone else wished to testify on HB 348, reopened public testimony. Number 2051 ANNA FAIRCLOUGH, Executive Director, Standing Together Against Rape (STAR); Member, Anchorage Assembly, Municipality of Anchorage (MOA), remarked that [as the Executive Director of STAR], she'd attended a meeting with Victims For Justice, Inc. (VFJ), the Alaska Women's Resource Center (AWRC), and Abused Women's Aid in Crisis (AWAIC) - the domestic violence shelter in Anchorage - during which the concern was raised that HB 348 might engender a fiscal note should law enforcement officers in Anchorage notify every crime victim of the OVR. She elaborated: "Our concern is that somehow the [OVR] would become a clearinghouse or the referral base for victim services in Anchorage." MS. FAIRCLOUGH, as an Anchorage Assembly member, relayed that the assembly had had a less than desirable experience with the OVR in relation to the Godfrey case. She expressed a desire to discuss in detail with committee members, at another time, how the OVR presented information to the public, the service that this provided, what Anchorage was already involved in doing, and how [the OVR's involvement] did not expedite the process. She acknowledged that the OVR's intent was noble, but said that her concern and dissatisfaction stemmed from the fact that Anchorage had already been doing all the things that the OVR publicly suggested. "When it became a public ping-pong paddle with who ... had jurisdiction, it was a very uncomfortable feeling as an Anchorage Assembly member - to sit on that." MS. FAIRCLOUGH [on behalf of STAR] pondered whether, should the OVR become a referral office, more people will be hired in order to deal with possible workload increases. CHAIR McGUIRE read brief portions of the OVR's brochure. REPRESENTATIVE SAMUELS surmised that social service organizations would only be helped by ensuring that information about the OVR gets distributed. "The [OVR] is basically a law firm ...; they're just the ombudsman," he remarked, adding that the OVR will be able to let those that call their office know about other available resources. Number 2219 MS. FAIRCLOUGH argued, however, that from the point of view of sexual assault victims, another layer of bureaucracy is not a good thing - it will not make them come forward; instead, it will stop them from seeking help. CHAIR McGUIRE pointed out, however, that HB 348 merely requires that information about the OVR gets distributed to crime victims; it doesn't mandate that victims go through the OVR in order to receive any other organization's services. "In point of fact, this is in addition, perhaps, to any other resources that are available to a woman in that [situation]," she added. She said she sees no harm in requiring distribution of the OVR brochure. MS. FAIRCLOUGH remarked that at the aforementioned meeting, none of the groups present took a position on HB 348. She offered her belief that the Anchorage Police Department (APD) does not want to become a referral service and is, in fact, trying to consolidate all of the pieces of literature it is now distributing regarding the social service organizations that are available in Anchorage. CHAIR McGUIRE explained, however, that an important distinction is that the OVR was statutorily created for the purpose of enforcing victims' constitutional legal rights, whereas the opportunity to access STAR and similar organizations is not a legal right - it is simply an opportunity. REPRESENTATIVE GARA asked whether the concern about excessive literature is something the legislature ought to consider. CHAIR McGUIRE reiterated the distinction between the OVR and social services organizations. The OVR enforces victims' constitutional rights, rights much like those afforded to defendants as a result of case law. With regard to whether law enforcement should be required to distribute information about the OVR, she said, "I think it is critical because I think [that] when a crime occurs, there ought to be as much attention paid to the victims as there [is] to the defendants; it's critical for me to know that ... an officer ... responding to an incident is paying ... attention to both sides of the equation." The more attention that can be given to victims' rights, the better, she indicated, adding that it is also important to continue other forms of outreach to victims. TAPE 04-3, SIDE B Number 2393 MS. FAIRCLOUGH, in response to Representative Gara, said she believes the police in Anchorage are doing all they can to reduce excessive literature. Furthermore, the police aren't mandated to carry those other vehicles of information. Ms. Fairclough relayed that she wasn't opposed to the distribution of the material; however, if there is a way to consolidate it, then there would be one piece rather than multiple pieces. She noted that carrying a particular amount of any kind of brochure will be an issue, she said. Ms. Fairclough clarified that "we" do want victims to be supported whenever possible, although she didn't want [the OVR] to become a referral service for victims. The police were trying to avoid the aforementioned by creating one pamphlet that would detail all the services available to victims. Although there have been assurances that the OVR won't become a referral service, she expressed concern that victims with the OVR's brochure will start calling its number. CHAIR McGUIRE said she would continue to make sure that the OVR wouldn't become a bureaucratic barrier to obtaining the other services that are available. Furthermore, there is no intention for the OVR to become a clearinghouse. MS. FAIRCLOUGH noted that there are hundreds of thousands of other victims that are unrepresented. She relayed her belief that police officers will continue to hand out the names of organizations such as AWAIC, AWRC, and STAR. She noted that she is the new legislative chair for the Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), and expressed her appreciation for various pieces of legislation dealing with [the issues with which she is involved]. REPRESENTATIVE GARA noted that his staff would be working on an amendment regarding information about the Violent Crimes Compensation Board. CHAIR McGUIRE mentioned that Anchorage Assemblymen Tremaine and Traini were in attendance. Upon determining that there was no further committee discussion, Chair McGuire set HB 348 aside. HB 357 - RESTITUTION Number 2177 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 357, "An Act relating to restitution; and providing for an effective date." House Bill 357 has four prime sponsors: Representatives Stoltze, Dahlstrom, Samuels, and McGuire. Number 2165 REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HB 357, 23-LS1384\D, Luckhaupt, 1/20/04, as the work draft. REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 357, stated that the changes embodied in Version D can be found on page 2, line 26, where a new Section 5 was added. This new Section 5 clarifies that the court retains jurisdiction into adulthood. Number 2141 CHAIR McGUIRE remarked that there was no objection to the motion. Therefore, Version D was before the committee. REPRESENTATIVE SAMUELS pointed out that the committee packet should contain a sponsor statement and a letter of support from the Anchorage School District. He highlighted the language change from "may" to "shall" on page 1, line 4. The result of this change will be that if an individual causes someone else financial hardship, then that individual will pay at least part of the price. With regard to new Section 5, he opined that a [juvenile] shouldn't be let off the hook [just because he/she turns 18]. REPRESENTATIVE GRUENBERG provided the committee with a copy of the current AS 12.55.045. He relayed his understanding that even with respect to a large amount of restitution, [the repeal of AS 12.55.045(f)] is taking away the court's flexibility to consider the defendant's ability to pay restitution. This could lead to a very unfair result. He posed an example in which a young person, with dependants to support, does damage to a school building. If the court can't even consider [the defendant's ability to pay], it may lead to innocent children being left with no support. Therefore, he opined, the court, in some cases, should be able to consider such things. He said he hesitates to completely repeal AS 12.55.045(f), which, he recalled, requires the defendant to show clear and convincing evidence of his/her inability to pay. He announced that he supports the legislation itself, but reiterated his belief that the court should have some flexibility to consider the [defendant's ability to pay]. REPRESENTATIVE SAMUELS noted that AS 12.55.045(f) includes the following language: "the defendant's sentence includes a period of unsuspended incarceration exceeding 90 days". He remarked that of course the individual has no ability to pay during the 90 days when he/she is incarcerated and not working. However, the individual shouldn't be let off the hook when the individual is no longer incarcerated. He remarked that the individual should be reminded of what he/she did even if it's through payment of only $10 per week. He offered his belief that providing latitude to the courts means that there could be unfair situations from judge to judge. REPRESENTATIVE GRUENBERG suggested that perhaps this is something that needs to be discussed between now and the bill's next hearing. Number 1762 TAMARA de LUCIA, Associate Victims' Rights Advocate, Office of Victims' Rights (OVR), Alaska State Legislature, noted that AS 34.50.020 currently caps damages for vandalism against public buildings, including school vandalism, committed by minors at $10,000. House Bill 357 will bring AS 12.55.045 into line with the [current] stated legislative purpose: "a public policy favors requiring criminals to compensate for damages and injuries to their victims". She highlighted that victims of a terrible crime can never be made whole. Although much of the suffering that victims go through can't be compensated, a restitution award is a way in which a defendant can attempt to right the wrong. MS. de LUCIA characterized the provision repealing the court's ability to take into account an offender's ability to pay restitution as important. She explained that often the court reduces the restitution award when an offender has been sentenced to jail time because the defendant's earnings while incarcerated will be nominal or nonexistent. However, a reduction in the restitution award doesn't account for a potential windfall that that offender may receive during his/her lifetime nor does it account for the possibility that the offender may obtain a good job and then be able to compensate the victim. Offenders are often young and have a lifetime of earnings ahead of them. She opined that allowing restitution judgments to be reduced from the actual damages suffered is unfair to the victim and does not hold offenders accountable for their crime. Number 1680 CHAIR McGUIRE, one of the prime sponsors of HB 357, turned to AS 34.45.020 and noted that it only refers to minors. REPRESENTATIVE GARA said he supported obtaining every last penny of restitution possible from someone who commits a crime against someone else, and therefore he agrees with the concept and the approach. However, he expressed concern with regard to deleting any reference to the criminal's ability to pay. He posed an example in which a criminal disfigures someone and this results in $500,000 worth of medical bills. The judge in such a situation has the ability to place the offender in jail and retain jurisdiction over the offender for 10 years from the date of the crime. Under HB 357, the judge wouldn't be able to consider the defendant's ability to pay and, thus, over the course of the next 10 years this defendant would have to come up with $500,000 while the court has jurisdiction. Therefore, he expressed concern that HB 357 may result in the court saying that the defendant must pay more money than he/she will ever have. He questioned whether the aforementioned may cross a constitutional line and thus he asked if any constitutional research had been done on this matter. MS. de LUCIA responded that Article 1, Section 24, gives victims a constitutional right to restitution from their offenders. She said that she doesn't have any information that indicates this provision would go against the constitutional rights of defendants. However, she noted that she isn't an authority on the latter. In further response to Representative Gara, Ms. de Lucia specified that she had done no research [regarding whether HB 357 may cross a constitutional line]. Number 1449 JUDITH McARTHUR (ph) informed the committee of her daughter's car accident, which resulted in $420,000 worth of medical bills to date for her and her friend. She pointed out that there was a separate hearing for restitution during which the defendant denied having any property, although some research revealed that the defendant did own property. The defendant claimed that because the state had taken his driver's license, he [was earning] insufficient money to pay restitution. Ms. McArthur noted that her daughter had to replace her car, which wasn't considered in restitution. Furthermore, because of neurological deficits [due to this incident] it's taking six years [for her daughter] to complete college. She echoed earlier sentiments that restitution can never make her daughter and her friend whole. "Restitution does need to be ordered; it does need to be made," she said. Number 1312 LINDA WILSON, Deputy Director, Alaska Public Defender Agency, Department of Administration (DOA), began by saying that although the [PDA] certainly supports restitution and restorative justice, it does have concerns with HB 357. The language change from "may" to "shall" is problematic because nowhere in the legislation is there language specifying that there be a request from the victim for reimbursement of loss. She asked if [this language change] would require the court to go through a process to determine the amount of any loss. She noted that many times victims don't request restitution. MS. WILSON turned to the fiscal note and the provision repealing AS 12.55.045(e) and (f). As mentioned earlier, she remarked, if a large amount of restitution is owed, there is the presumption that the defendant has the ability to pay, and so the defendant would have to overcome that presumption. Without taking into consideration the defendant's ability to pay, she said she felt that the legislation binds the ability of the courts and the judges to be fair in determining restitution. MS. WILSON posed a situation in which a defendant is unable to pay, yet that is part of the conditions for release. Currently, in such a situation, if the defendant petitions for revocation of the defendant's probation, it must be proven that it was a willful violation. Therefore, there is a process by which to determine whether the defendant can pay or not and whether the nonpayment is willful. REPRESENTATIVE GARA said he is trying to determine whether there might be a constitutional problem with [the bill], for example, in a situation in which an individual pays as much as he/she can in restitution but [still] doesn't have enough to pay it all. MS. WILSON answered that it would be cruel and unusual punishment to incarcerate an individual for his/her inability to pay [restitution]. Number 0941 REBECCA ROBERTS (ph) informed the committee that she is the parent of a child who was permanently disfigured as the result of a violent crime. She indicated she supported HB 357 because it would require judges to order restitution in every case in which victims have suffered financial loss. In the case of a juvenile, she opined that a juvenile's restitution order should survive past the legal age of 19. Ms. Roberts relayed her belief that young offenders should be held accountable. By not ordering restitution the juvenile justice system is leading youth into thinking that there are no serious consequences to crime. Many studies confirm that repeat offenders commit much, if not most, of the predator violent crime. Furthermore, many juvenile offenders are becoming violent at earlier ages. Ms. Roberts concluded by urging the committee to pass HB 357. CHAIR McGUIRE, upon determining that no one else wished to testify, closed public testimony. REPRESENTATIVE SAMUELS turned to the constitutional issues and highlighted that victims have a constitutional right to restitution "right off the bat." Therefore, he opined, forcing the court to make the judgment is not going to be a problem. He reiterated his earlier sentiments regarding the need for those [juveniles] who commit crimes to pay into their adulthood [when able to do so]. He said he would obtain an opinion from Legislative Legal and Research Services regarding the constitutionality of such. He also offered to review [subsection] (f) of the current statute in order to see that everyone's concerns are addressed. CHAIR McGUIRE suggested that Legislative Legal and Research Services should also be asked to review mandatory minimum sentences because she believes that issue will engender a similar line of questions. By not removing subsection (i), by taking away the courts' discretion, and by requiring that the defendant pay restitution in some way, [it will result] in "beefing up" a part of the sentence. It will be interesting, she remarked, to see what Legislative Legal and Research Services returns on the aforementioned issue as well as the one regarding how the [defendant's] constitutional right bumps up against the victim's constitutional right to restitution. REPRESENTATIVE GARA clarified that he wasn't saying that [the legislation] is unconstitutional; rather, that he didn't want to pass legislation that would jeopardize an existing statute merely because there was a desire to have a better one. Number 0591 CHAIR McGUIRE announced that CSHB 357 [Version D] would be set aside.