Legislature(2003 - 2004)

01/30/2004 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 357 - RESTITUTION                                                                                                          
Number 1847                                                                                                                     
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.    [Before  the committee  was  the  proposed  committee                                                               
substitute  (CS)  for  HB 357,  Version  23-LS1384\D,  Luckhaupt,                                                               
1/20/04, which was adopted as a work draft on 1/26/04.]                                                                         
Number 1853                                                                                                                     
REPRESENTATIVE SAMUELS  moved adopt the  proposed CS for  HB 357,                                                               
labeled  23-LS1384\H,  Luckhaupt,  1/29/04  as  the  work  draft.                                                               
There being no objection Version H was before the committee.                                                                    
Number 1860                                                                                                                     
SARA  NIELSEN,  Staff  to Representative  Ralph  Samuels,  Alaska                                                               
State  Legislature, spoke  on behalf  of Representative  Samuels,                                                               
one  of the  prime  sponsors  of HB  357,  regarding the  changes                                                               
incorporated  into the  CS.    She explained  that  Section 5  of                                                               
Version  D  was totally  removed.    This  was the  section  that                                                               
clarified   that  a   minor  should   remain  [accountable]   for                                                               
restitution past  age 19.  Because  this is already the  law, she                                                               
remarked, Section 5  of Version D seemed to  complicate the issue                                                               
rather than clarify it, and so the language was removed.                                                                        
MS. NIELSEN turned attention to page  1, line 4, and page 1, line                                                               
10, which  now contain the  language "unless the victim  or other                                                               
person   expressly  declines   restitution";  this   language  is                                                               
intended to address  a scenario in which a  victim simply doesn't                                                               
want restitution for whatever reason,  for example, if the victim                                                               
would rather  have the offender  go to alcohol  treatment instead                                                               
of paying  restitution.   She turned attention  to page  2, lines                                                               
15-19, and said this new Section  4 was added so that a defendant                                                               
would  be able  to  come  forward at  any  time  and pay  his/her                                                               
restitution.   Thus,  if  that  person had  been  ordered to  pay                                                               
restitution but  was making a  payment that  was not part  of the                                                               
payment schedule, the court should still accept the money.                                                                      
MS. NIELSEN turned  attention to the fourth change,  page 2, line                                                               
31 [through page 3, line 1],  and she said the following language                                                               
was added:   "The court  may not  reduce an order  of restitution                                                           
but may change  the payment schedule."  She said  this is sort of                                                           
a  compromise to  earlier versions'  repeal  of AS  12.55.045(f).                                                               
She noted  that Representative Gruenberg  was concerned  that the                                                               
court wasn't taking  into consideration the ability  to pay; this                                                               
additional   language   simply   gives  a   defendant   [who   is                                                               
experiencing  financial  difficulties   the  opportunity  to  pay                                                               
restitution at a later time].                                                                                                   
MS.  NIELSEN  turned   attention  to  page  3,   lines  2-7,  the                                                               
delinquent minor  section, which [mirrors]  what was done  in the                                                               
adult  section  to allow  the  court  to accept  [a  restitution]                                                               
payment at anytime.                                                                                                             
Number 1970                                                                                                                     
REPRESENTATIVE GRUENBERG  said he  supports the language  on page                                                               
2, line  31, through  page 3,  line 1,  which proposes  to change                                                               
Title 12.   He pondered whether that kind of  language could also                                                               
be put in Title 47 regarding  delinquency.  He said the committee                                                               
allowed the court to do a  payment schedule for adults but it had                                                               
not  done   that  for   juvenile  delinquents.     Representative                                                               
Gruenberg said the two statutes track  each other, one is for the                                                               
adults and  the other is  for the  delinquents, and there  may be                                                               
something already in the delinquency  statute, but he wanted that                                                               
to be investigated and, if appropriate, add that sentence.                                                                      
REPRESENTATIVE SAMUELS  turned attention to  page 3, line  1, and                                                               
suggested  adding the  words, "unless  specifically requested  by                                                               
the  victim" to  address situations  in which  a victim  requests                                                               
that a restitution order be dropped.                                                                                            
REPRESENTATIVE  GRUENBERG  warned  Representative Samuels  to  be                                                               
careful that such language is properly drafted.                                                                                 
MS.  NIELSEN,  on  the  question  of  whether  HB  357  could  be                                                               
challenged on a  constitutional basis, said she  had checked with                                                               
the Department of  Law (DOL), which relayed  that there shouldn't                                                               
be any such challenges].                                                                                                        
Number 2115                                                                                                                     
REPRESENTATIVE  SAMUELS moved  to adopt  [Amendment 1],  which he                                                               
said would stipulate that if  the victim chooses, he/she would be                                                               
able to drop the order of restitution.                                                                                          
Number 2125                                                                                                                     
REPRESENTATIVE  GRUENBERG objected  for  purposes of  discussion.                                                               
He asked that Amendment 1 be clarified.                                                                                         
REPRESENTATIVE SAMUELS explained that Amendment 1 would be:                                                                     
     Page 2, line 31, after "restitution"                                                                                   
         Insert ", unless specifically requested by the                                                                         
REPRESENTATIVE GRUENBERG removed his objection.                                                                                 
REPRESENTATIVE SAMUELS  asked if it  is possible for a  victim to                                                               
be  threatened  or  coerced into  dropping  a  restitution  order                                                               
against his/her will.                                                                                                           
Number 2174                                                                                                                     
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau, Criminal Division, Department  of Law (DOL), said                                                               
that  she  had  never  seen   that  situation  arise,  but  could                                                               
certainly imagine that  scenario if a [defendant] is  under a lot                                                               
of  stress with  a  high  restitution payment  and  tries to  put                                                               
pressure on the victim.                                                                                                         
REPRESENTATIVE   GRUENBERG  said   that   in  domestic   violence                                                               
situations,  a  lot of  times  [an  offender] will  pressure  the                                                               
victim to drop  the charge.  He offered  a hypothetical situation                                                               
in which a  victim is given the choice by  her abusive ex-husband                                                               
of either  dropping the restitution  order against him  or having                                                               
to fight him for custody of their child.                                                                                        
Number 2240                                                                                                                     
REPRESENTATIVE SAMUELS withdrew Amendment 1.                                                                                    
REPRESENTATIVE GRUENBERG asked if there  is other language in the                                                               
bill similar to that in Amendment 1.                                                                                            
REPRESENTATIVE SAMUELS indicated that there is.                                                                                 
REPRESENTATIVE  GRUENBERG  asked  Representative  Samuels  if  he                                                               
wanted to remove such language from the bill.                                                                                   
REPRESENTATIVE   SAMUELS  said   no,  because   there  might   be                                                               
situations in which the victim does not want restitution.                                                                       
CHAIR McGUIRE,  one of  the prime sponsors  of HB  357, indicated                                                               
that  if the  language  is removed  it  might [create  unintended                                                               
REPRESENTATIVE  GARA  said it  can  be  very expensive  and  time                                                               
consuming  to prove  restitution.   He said  sometimes there  are                                                               
victims who do  not want to be involved in  the court process, so                                                               
there will be certainly be  cases in which the court, prosecutor,                                                               
and defense attorney  spend time calculating and  ordering a full                                                               
restitution  amount when  the  victim really  doesn't  care.   He                                                               
explained that  [language] on page  1 requires restitution  to be                                                               
ordered unless the  victim expressly declines.   However, he said                                                               
it doesn't address the circumstance  in which the case doesn't go                                                               
to  trial,  the victim  never  shows  up,  and the  victim  never                                                               
expresses  whether  he/she wants  restitution,  but  the bill  is                                                               
requiring  a full  hearing and  litigation  over the  restitution                                                               
amount.  He  said maybe it is  not a bad thing that  a victim get                                                               
restitution  even if  he/she  doesn't  want it  or  care, but  he                                                               
expressed concern about spending the  money to require the scarce                                                               
resources of the judicial system  to create the restitution order                                                               
if the victim doesn't care.                                                                                                     
REPRESENTATIVE  SAMUELS said  he would  assume that  if there  is                                                               
money  involved,  then most  victims  are  going  to want  it  if                                                               
they've  suffered a  financial loss.    He acknowledged,  though,                                                               
that there may be a small  number of victims that aren't going to                                                               
follow  through   at  least  a   little  bit  on  the   issue  of                                                               
restitution.    He offered  the  scenario  in  which a  kid  goes                                                               
through a  neighborhood and shoots  out 40 car windows,  and said                                                               
that even  if the [victim]  doesn't want to  go to court,  all it                                                               
takes is  a phone call  from the  district attorney to  tell that                                                               
victim that he/she  has restitution coming.  He  opined that even                                                               
though the victim  might not have cared, he/she  would still take                                                               
the restitution.   Representative Samuels said that to  him it is                                                               
about fairness,  and that is the  [purpose] of the bill  - to try                                                               
to make people responsible for their actions.                                                                                   
TAPE 04-7, SIDE B                                                                                                             
Number 2394                                                                                                                     
MS. CARPENETI  relayed that victims  are contacted and  asked for                                                               
evidence of restitution.                                                                                                        
REPRESENTATIVE GARA  asked whether,  if there  was a  court order                                                               
that asked the victim for  receipts, but the victim hadn't handed                                                               
them  in or  told what  the  damages are,  the bill  says a  full                                                               
restitution  hearing  must  be  made  even  without  evidence  of                                                               
restitution.   He asked if the  court is obligated to  figure out                                                               
the restitution without the victim's help.                                                                                      
MS.  CARPENETI said  that practically,  that's not  how it  would                                                               
work.   She surmised  that there would  be a  restitution hearing                                                               
and  the court  would ask  for  evidence of  restitution, but  if                                                               
there isn't evidence, the court would  say the victim has a right                                                               
to restitution, but does not have to exercise that right.                                                                       
REPRESENTATIVE  GARA  pointed  out, however,  that  [proposed  AS                                                               
12.55.045(a)(1)]  says   the  court  shall,  unless   the  victim                                                               
expressly says  no, order restitution.   He said the  court would                                                               
be in  violation of  the law  if it ignored  the language  in the                                                               
MS. CARPENETI  speculated that  the court  would simply  say that                                                               
the restitution had been expressly declined.                                                                                    
REPRESENTATIVE GARA  suggested changing the wording  of [proposed                                                               
AS  12.55.045(a)(1), lines  4-5, to  read, "The  court shall,  if                                                               
presented with competent evidence, order restitution".                                                                          
REPRESENTATIVE SAMUELS  gave an  example of a  broken windshield,                                                               
and asked  whether, if  there is  no receipt  given, there  is no                                                               
Number 2301                                                                                                                     
MS.  CARPENETI agreed  that if  there are  no claims  or receipts                                                               
presented by the victim, then there is no restitution ordered.                                                                  
REPRESENTATIVE SAMUELS objected [to the suggested change].                                                                      
REPRESENTATIVE  GARA   said  he  disagrees   with  Representative                                                               
Samuels  and Ms.  Carpeneti, opining  that  if the  law says  the                                                               
court  has to  order restitution,  then  the court  has to  order                                                               
restitution, whether it is practical or not.                                                                                    
CHAIR McGUIRE  said she did  not like the word,  "competent," but                                                               
agreed with the rest of the wording of the amendment.                                                                           
REPRESENTATIVE  SAMUELS said  he did  not want  to put  a further                                                               
burden on the victim by using the term, "competent evidence."                                                                   
REPRESENTATIVE  GRUENBERG suggested  using,   "If presented  with                                                               
sufficient evidence."                                                                                                           
CHAIR McGUIRE  suggested just using "evidence",  not "sufficient"                                                               
or "competent."                                                                                                                 
MS. CARPENETI said  she thought that using  just "evidence" would                                                               
be fine.                                                                                                                        
Number 2196                                                                                                                     
CHAIR McGUIRE moved to adopt Conceptual Amendment 2, as follows:                                                                
     Page 1, line 4                                                                                                             
     After shall                                                                                                            
     Insert "when presented with evidence"                                                                                      
CHAIR McGUIRE noted  that there are other areas of  the bill that                                                               
would need  conforming amendments; for  example, page 1,  line 9.                                                               
She indicated  that the  intent of Conceptual  Amendment 2  is to                                                               
allow the drafter to make the necessary conforming changes.                                                                     
Number 2163                                                                                                                     
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Conceptual Amendment  2.  There being  none, Conceptual Amendment                                                               
2 was adopted.                                                                                                                  
Number 2150                                                                                                                     
REPRESENTATIVE SAMUELS  spoke about Conceptual Amendment  3 which                                                               
reads [original punctuation provided]:                                                                                          
     Sec. 47.12.120 Judgments and orders                                                                                        
     (4)  order  the  minor  and   minor's  parent  to  make                                                                    
     suitable restitution in  lieu of or in  addition to the                                                                    
     court's   order  under   (1),  (2)   or  (3)   of  this                                                                    
     subsection; under this paragraph,                                                                                          
          (A) except as provided in (B) of this paragraph,                                                                      
          the court may not refuse to make an order of                                                                          
          restitution to benefit the victim of the act of                                                                       
          the minor that is the basis of the delinquency                                                                        
     New section:                                                                                                             
     The court  may take  into consideration  the delinquent                                                                  
     minor's  ability to  pay past  age  19, or  the age  in                                                                  
     which the  court retains  jurisdiction over  the minor,                                                                  
          when determining the amount of the order of                                                                         
REPRESENTATIVE  SAMUELS explained  Conceptual  Amendment 3  would                                                               
allow  the court  to take  into  consideration [the  dependant's]                                                               
ability to  pay when between  the ages of 17  and 19.   It states                                                               
that  the  court   may  look  at  [a  minor's]   ability  to  pay                                                               
[restitution] later  on in life.   He emphasized  that Conceptual                                                               
Amendment 3 contains the word "may",  thus the court would not be                                                               
mandated to [consider this point].                                                                                              
Number 2082                                                                                                                     
REPRESENTATIVE SAMUELS moved to adopt Conceptual Amendment 3.                                                                   
Number 2078                                                                                                                     
REPRESENTATIVE GRUENBERG  objected for  discussion purposes.   He                                                               
said he does not  want to limit the age to 19.   Rather, he wants                                                               
to  give the  court the  discretion to  spread the  payments out,                                                               
regardless of the age of the juvenile.                                                                                          
REPRESENTATIVE  SAMUELS said  his intent  is  to get  rid of  the                                                               
artificial  barrier of  age, and  referred  the language  labeled                                                               
"New Section", which says, "past age  19."  He said sometimes the                                                             
jurisdiction of the  court goes to age 21, and  agreed that there                                                               
should be a payment schedule.                                                                                                   
REPRESENTATIVE GRUENBERG said he  supported the idea [of removing                                                               
age restrictions], but  gave an example of a 13  year-old who has                                                               
caused  $1,000 worth  of  damage.   The  court  may  say to  make                                                               
payments which  might end  before the  minor is 19.   He  said he                                                               
would like to see that situation addressed as well.                                                                             
REPRESENTATIVE  SAMUELS   said  if   the  payment   schedule  was                                                               
included, the  problem would be  addressed.  The reason  it says,                                                               
"may" is for just such cases involving younger kids.                                                                            
REPRESENTATIVE GRUENBERG  said he  understood the meaning  to be,                                                               
"it can be a  series of payments, and it can  extend past the age                                                               
of majority."   He indicated that he wanted to  see the bill with                                                               
the inclusion  of Conceptual  Amendment 3  before moving  it from                                                               
committee.  He then withdrew his objection.                                                                                     
Number 1987                                                                                                                     
CHAIR  McGUIRE asked  if  there were  any  further objections  to                                                               
Conceptual Amendment  3.  There being  none, Conceptual Amendment                                                               
3 was adopted.                                                                                                                  
REPRESENTATIVE   GARA   requested   Ms.  Carpeneti   respond   to                                                               
constitutional  issues.   He  said  he wants  see  that the  bill                                                               
orders   as  much   restitution   as   possible,  without   being                                                               
unconstitutional.   He  asked  if a  violation  of a  restitution                                                               
order counted as a violation of probation.                                                                                      
MS. CARPENETI replied that it did.                                                                                              
REPRESENTATIVE GARA  stated that  if probation is  violated, [the                                                               
defendant] can be  put in jail for the remainder  of the original                                                               
sentence.  He asked if that statement is correct.                                                                               
MS. CARPENETI replied that it is.                                                                                               
REPRESENTATIVE   GARA  said,   then,  that   there  could   be  a                                                               
circumstance  where  a  person was  recklessly  driving,  had  no                                                               
insurance,  and  injured a  family  causing  $1,000,000 worth  of                                                               
damages.   He  said there  is  no likelihood  that the  defendant                                                               
could come  up with  that amount.   Therefore, if  restitution of                                                               
the full amount  is ordered by the court, and  the defendant gets                                                               
out of  jail and is  unable to make  all of the  payments, he/she                                                               
will be thrown in jail because  of a violation of the restitution                                                               
order.  He  asked if there was a possible  due process problem in                                                               
that situation.                                                                                                                 
MS. CARPENETI  replied that  there is no  debtor's prison  in the                                                               
U.S., but  noted that AS 12.55.051(a)  specifically addresses the                                                               
problem.  If  a probation violation is only because  of a lack of                                                               
payment  of  restitution  and the  defendant  shows  that  he/she                                                               
cannot pay, they cannot be imprisoned.                                                                                          
Number 1872                                                                                                                     
REPRESENTATIVE GARA  said he was  comforted by [the  statute] but                                                               
wanted to make sure that HB 357 would not conflict with it.                                                                     
MS. CARPENETI asked  if he is worried about  the language, "shall                                                               
pay restitution."                                                                                                               
REPRESENTATIVE GARA  said he is  worried that if [the  bill] were                                                               
passed, that it would conflict with [a statute] on the books.                                                                   
MS.  CARPENETI  said she  did  not  see  a conflict  because  the                                                               
constitution says a victim has  the right to restitution and this                                                               
bill  says   [the  victim]  has   the  right  to  the   order  of                                                               
REPRESENTATIVE     GARA    mentioned     Southerland    Statutory                                                             
Construction, which he  described as a legal  treatise that deals                                                             
with conflicting statutes.  He  cautioned that the committee stay                                                               
within this  treatise's rules, adding  that sometimes  when there                                                               
are  two  conflicting  statutes,  the later  one  supercedes  the                                                               
earlier one, which is invalidated.   He surmised that such is not                                                               
the  bill's intention,  and suggested  that this  idea should  be                                                               
stated somewhere [in  the bill], and asked  Ms. Carpeneti whether                                                               
she agreed.                                                                                                                     
MS.  CARPENETI replied  that stating  the intent  in this  public                                                               
hearing, which is being recorded, is probably [sufficient].                                                                     
REPRESENTATIVE GARA said  he didn't think that  people would rely                                                               
on what is said in this hearing.                                                                                                
MS. CARPENETI stated  again that she did not see  a problem.  She                                                               
said she  thought it  was clear  [in the  bill] that  a procedure                                                               
needed to be followed; whatever is ordered.                                                                                     
REPRESENTATIVE  SAMUELS  pointed  out  that the  victim  has  the                                                               
constitutional right to restitution.                                                                                            
Number 1718                                                                                                                     
REPRESENTATIVE GRUENBERG said that  when the legislature passes a                                                               
law  and doesn't  specifically affect  other statutes,  the court                                                               
will  construe them  harmoniously and  will find  that the  prior                                                               
statute  survives.    He  said he  agrees  with  Ms.  Carpeneti's                                                               
CHAIR McGUIRE  opined that there  has been  sufficient discussion                                                               
on the  record regarding this issue  to show that this  bill does                                                               
not  mean to  supercede AS  12.55.501(a).   She pointed  out that                                                               
Representative  Samuels  is  correct   [regarding  the  right  to                                                               
restitution];  Article  I,  Section   24,  of  the  Alaska  State                                                               
Constitution  says   that  crime   victims  have  the   right  to                                                               
restitution from the accused.                                                                                                   
REPRESENTATIVE GRUENBERG turned  to Section 3, page  2, lines 12-                                                               
14, and  noted that the court  may order a payment  schedule.  He                                                               
asked if it is correct  that in considering the payment schedule,                                                               
the court could consider the defendant's ability to pay.                                                                        
REPRESENTATIVE SAMUELS said that is the intent.                                                                                 
REPRESENTATIVE  GRUENBERG said  that with  that clarification  he                                                               
would decline to offer an amendment.                                                                                            
REPRESENTATIVE GARA said  he was going to vote for  the bill, but                                                               
added that  most attorneys  do not  look up  legislative history,                                                               
especially in criminal cases.                                                                                                   
Number 1587                                                                                                                     
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department of  Administration (DOA), thanked the  sponsors of the                                                               
bill  for the  changes  to  it.   She  then suggested  additional                                                               
wording,  "at  the request  of  the  victim,"  to show  that  the                                                               
victims are exercising their right  to the restitution.  She said                                                               
she really  appreciates the removal  of the section  that applied                                                               
to  juvenile  court jurisdiction.    She  explained that  when  a                                                               
petition to revoke probation is  filed, and the person comes into                                                               
court and demonstrates  that the inability to pay  was not wilful                                                               
because he/she  could not  make the payments,  then they  get put                                                               
back  on  probation  and  are   put  on  a  more  doable  payment                                                               
schedule..  Her  point, however, is that a whole  new hearing has                                                               
to be  scheduled because  of not considering  in the  first place                                                               
the defendant's ability  to pay.  In conclusion,  she opined that                                                               
the amendments have been a big improvement to the bill.                                                                         
REPRESENTATIVE  GRUENBERG  asked  if  Ms. Wilson  had  any  other                                                               
changes to suggest that hadn't been discussed yet.                                                                              
MS. WILSON suggested  that on page 1, line 4,  instead of saying,                                                               
"unless   the  victim   or   other   person  expressly   declines                                                               
restitution,"  replace it  with,  "shall at  the  request of  the                                                               
REPRESENTATIVE SAMUELS said he was  not in favor of that [change]                                                               
because of the burden it puts on the victim to appear in court.                                                                 
REPRESENTATIVE  GRUENBERG  said  he wasn't  suggesting  that  the                                                               
victim go to  court, but rather that he/she simply  signs a piece                                                               
of paper.                                                                                                                       
REPRESENTATIVE  SAMUELS indicated  that he  still objects  to the                                                               
suggested change.                                                                                                               
CHAIR McGUIRE asked  whether there was further  discussion on the                                                               
bill.  Hearing none, she asked for a motion.                                                                                    
Number 1343                                                                                                                     
REPRESENTATIVE GRUENBERG  moved [to adopt the  proposed committee                                                               
substitute  (CS)  for  HB 357,  Version  23-LS1384\H,  Luckhaupt,                                                               
1/29/04,   as    amended,   from   committee    with   individual                                                               
recommendations and the accompanying  fiscal notes].  There being                                                               
no  objection,   CSHB  357(JUD)  was  reported   from  the  House                                                               
Judiciary Standing Committee.                                                                                                   

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