Legislature(2015 - 2016)CAPITOL 106
01/26/2016 08:00 AM House STATE AFFAIRS
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HB 243-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD 8:09:28 AM CHAIR LYNN announced that the first order of business was HOUSE BILL NO. 243, "An Act relating to the permanent fund dividend; and relating to a permanent fund dividend for an individual whose conviction has been vacated, reversed, or dismissed or for an individual who has been pardoned because of innocence and wrongful conviction." [CHAIR LYNN passed the gavel to Vice Chair Keller.] 8:09:40 AM VICE CHAIR KELLER noted that there was a committee substitute available, and he asked the bill sponsor's staff to explain the changes that would be made by it. He noted there were people available to testify. 8:10:57 AM DANEEN TUCK, Staff, Representative Bob Lynn, Alaska State Legislature, presented HB 243 on behalf of Representative Lynn, prime sponsor. She said many people mistake HB 243 as a bill written for "the Fairbanks Four," but she explained it was the Fairbanks Four who brought attention to the lack of any law that would [allow a permanent fund dividend for] an individual whose conviction had subsequently been overturned, dismissed, or vacated. She said the sponsor worked during the interim so that this oversight would be corrected. MS. TUCK, in response to the prime sponsor, discussed the changes the aforementioned committee substitute would, if adopted, make to the original bill version. The first change was the removal from the bill title, and anywhere within the original bill, references to an individual who has been pardoned and references to "pardoned because of innocence and wrongful conviction". Ms. Tuck explained, "The reason for those removals is that if you pardon somebody, then you're asking the governor to make a finding of innocence. We did not want to do that, because the parties who were pardoned could possibly still have committed the crime, and those are not the ones that we were looking for; we were looking for ones that the courts had overturned, dismissed, vacated, or reversed their cases." MS. TUCK pointed out specific language [in the original bill version] that would be deleted [under the committee substitute]: "pardoned", from page 1, line 14; "pardon under (i)(2) of this section", from page 2, line 4; the language on page 2, lines 5- 7, which read as follows: (k) When a permanent fund dividend is paid under (i) of this section, the department shall also pay interest at the rate specified in AS 45.45.010 from the date each dividend would have been paid if the individual had been eligible. MS. TUCK explained it was found that throughout the history of the permanent fund dividend (PFD), no interest had ever been paid out. She offered a scenario wherein parents did not apply for their child's PFD, but within 60 days of turning 18, that child could apply. She said, "Even those types of Alaskans would not get any interest." She indicated that the language was taken out in the interest of fairness. MS. TUCK said the next change was [the deletion of Section 2, the language of which] she said is on page 2, lines 9-11 [of the original bill], which read as follows: (k) The Department of Corrections shall provide an application for a permanent fund dividend to any individual in the custody of the Department of Corrections who requests an application, regardless of the eligibility of the individual. MS. TUCK explained that the sponsor determined the language should be deleted after discussing the issue with the Department of Corrections and finding out "how bad it's handled." 8:15:03 AM CHAIR LYNN, regarding the deletion of references to the word "pardon", explained that people are not pardoned unless they were originally found guilty, and the bill is about people who are innocent. He echoed Ms. Tuck's statement that the proposed legislation was not being introduced to benefit the Fairbanks Four, but for all situations where a mistake was made and a correction needs to be made such that everyone can be treated equitably. He said a person could lose one year of the PFD or eighteen years, and he stated his belief that "there are others out there also who could fall under the parameters of this bill." He offered his understanding that "vacated" means "the thing never happened at all." 8:16:30 AM REPRESENTATIVE GRUENBERG directed attention to the phrase, "An Act relating to the permanent fund dividend", in the bill title. He said, "Unless we want it to be used for anything that somebody may think of, we really do need to narrow that down or it will be caught at some point and used." VICE CHAIR KELLER offered his understanding that Representative Gruenberg was remarking upon the broad nature of the bill title and warning that it could result in "too broad of a range of amendments" as the bill goes through the legislative process. REPRESENTATIVE GRUENBERG responded, "Yes." VICE CHAIR KELLER noted that the bill sponsor would like the bill to be moved from committee today, but said he is hesitant to do so. He said that determination would be made after getting the questions of the committee on the table. 8:17:31 AM REPRESENTATIVE VAZQUEZ suggested deleting "relating to the permanent fund dividend; and" from page 1, line 1, so that the title would read: "An Act relating to a permanent fund dividend for an individual whose conviction has been vacated, reversed, or dismissed." 8:18:01 AM VICE CHAIR KELLER clarified that the committee needed to adopt the committee substitute as a working document before it could entertain amendments to it. 8:18:25 AM REPRESENTATIVE GRUENBERG moved [to adopt the proposed committee substitute (CS), Version 29-LS1279\G, Martin, 1/25/16, as a work draft]. There being no objection, Version G was before the committee. 8:18:43 AM REPRESENTATIVE VAZQUEZ, in response to Vice Chair Keller, reiterated her suggested amendment, and stated her support of HB 243. She said she had been concerned about the interest rate and the pardon provision, but both provisions would be deleted under Version G. 8:19:59 AM REPRESENTATIVE GRUENBERG said, "That's an excellent amendment." Notwithstanding that, he suggested that the committee "wait and see what the final bill looks like, in case something else changes." 8:20:16 AM VICE CHAIR KELLER said he was inclined to "let this one soak a little bit." He then questioned why a law is needed to make this change rather than addressing the issue within the court system. He said he thinks there are questions about "the ownership." He said he is not certain whether "these things are untested in court." He asked whether the people that have been wronged have gone to court to ask for relief. 8:21:01 AM CHAIR LYNN responded that as far as the Fairbanks Four are concerned, they were trying to get their sentencing vacated and "this is just part of that." He expressed his surprise that the administration had not come forward to address the issue. He reiterated his focus was on fairness. He opined that the issue needs to be addressed and resolved. 8:21:51 AM The committee took a brief at-ease at 8:22 a.m. 8:22:49 AM VICE CHAIR KELLER suggested there may be testifiers available who could answer his questions. 8:22:57 AM REPRESENTATIVE TALERICO said he would like to ask someone with a legal knowledge about a situation in which a judgement may have been vacated, but where there are other charges involved. CHAIR LYNN offered his understanding that "vacated" means "nothing happened whatsoever." REPRESENTATIVE GRUENBERG inquired as to how much "this" would cost the Permanent Fund Division. MS. TUCK said she did not have the answer at present. 8:24:28 AM VICE CHAIR KELLER opened public testimony on HB 243. 8:24:52 AM MARY ELLEN BEARDSLEY, Assistant Attorney General, Commercial and Fair Business Section, Civil Division (Anchorage), in response to Vice Chair Keller, suggested a criminal attorney would be better equipped to answer questions regarding HB 243. 8:25:38 AM HILARY MARTIN, Attorney at Law, Legislative Legal and Research Services, Legislative Affairs Agency, responded to a previous question as to why legislation is necessary to address the issue. She said under current statute a person is not eligible to receive a PFD if he/she has been incarcerated as a result of conviction of a felony or sentenced as a result of a felony. She continued: You're ineligible for one year, and there's nothing that would let [the Department of] Revenue look back and decide if the conviction was gone that they should get these back PFDs. And so, you just need something in statute to allow that process to happen, because they were ineligible at the time the ineligibility was set, and there's nothing currently in statute to change that. 8:27:14 AM VICE CHAIR KELLER said if he experienced a PFD being held back wrongfully, he would be indignant about it. He said it seems like there are fundamental constitutional protections that would be in place when addressing the issue of ownership. He offered his understanding that Ms. Martin had said that the ownership does not happen because of this law, because it's the act of being incarcerated that disqualifies a person. 8:27:51 AM REPRESENTATIVE GRUENBERG asked if the bill sponsors were prepared to answer why the bill is necessary. 8:28:58 AM RICHARD ALLEN, Director, Office of Public Advocacy (OPA), Department of Administration, testified on behalf of OPA in support of HB 243. He said Alaska is one of a minority of states that does not have "a compensation bill," which he explained is a bill that would pay people who were proven to be wrongfully incarcerated a sum of money per each year they were incarcerated. He said, "It seems to me that the least we can do is give them back their dividends that they would have received had they not been in jail." He said OPA thinks HB 243 is common sense legislation. He concurred with Ms. Martin that legislation is necessary, because currently there is no vehicle to provide those people with the back dividends. He said he supposed people could sue in court to get the money back, but he opined this is a better way to address the issue. MR. ALLEN, in response to Vice Chair Keller, recollected that about 32 states provide that person is paid a set amount per year for every year that a person was wrongfully incarcerated. He offered his understanding that the lowest yearly remuneration is approximately $40,000, while the highest, given by the State of Texas, is $100,000. He said [William B. Oberly] was available to testify, and he surmised Mr. Oberly had those numbers available. 8:32:36 AM CHAIR LYNN clarified that HB 243 relates only to the PFD issue. He said there is another issue related to compensation [for those wrongfully accused], but he emphasized that he wanted to keep those issues separate. 8:33:15 AM WILLIAM B. OBERLY, Executive Director, Alaska Innocence Project (AIP), stated that AIP is a 501(c)(3) nonprofit organization whose mission is to identify and exonerate wrongfully convicted individuals in Alaska. He said AIP supports HB 243 because "it's the right thing to do." When a person is convicted and the conviction is vacated and the charge is dismissed, it means the person was wrongfully convicted, which means that the person's PFD was wrongfully denied him/her during the period of conviction. He posited that the State of Alaska would want to correct the wrongful denial of the PFD. MR. OBERLY continued as follows: And I think it provides some assistance to people who get out of jail or out of prison after a wrongful conviction, who have - in Alaska at this point - nothing else to ... help them when they get out. There aren't the services of someone who's correctly convicted and gets out and is helped by the parole and probation system; there is no compensation provided for the wrongfully convicted. So, this would provide them some ability to get back on their feet. And really the amount is a pittance compared to what the cost to the state is of wrongfully continuing to incarcerate an innocent person. MR. OBERLY said he agrees with Mr. Allen and [Ms. Martin] that the reason HB 243 is necessary is that there currently is no mechanism to correct this injustice. He said AIP had checked when the Fairbanks Four had been exonerated to see if they could get their PFDs, and there was no way they could do it under current statute. He urged passage of HB 243. 8:36:20 AM REPRESENTATIVE GRUENBERG inquired whether someone incarcerated out of state would lose his/her residency and, therefore, lose his/her eligibility for a PFD. CHAIR LYNN speculated that someone who is incarcerated and sent to an out-of-state facility is sent out of state against his/her will. REPRESENTATIVE GRUENBERG said that may be true, but he noted there is a specific statute that relates to eligibility for the PFD for those who are out of state. He said he did not recall the situation wherein a person is incarcerated [out of state] as being on that list. 8:37:46 AM REPRESENTATIVE GRUENBERG referred to probate, and asked whether a person who had been incarcerated, then subsequently exonerated, and then dies, would, under the proposed legislation, be allowed his/her estate to claim the PFD. If so, he questioned whether it would be necessary to adopt conforming amendments to Title 13. Further, he questioned whether any conforming changes needed to be made to the conservator statute to have someone appointed to help someone unable to handle the paperwork involved in claiming a PFD. VICE CHAIR KELLER stated that Representative Gruenberg's questions were now on the record, and he would give the appropriate entities time to respond later. 8:39:25 AM REPRESENTATIVE TALERICO questioned whether the bill language should be amended to clarify that when there are multiple convictions [of one individual], all convictions must be vacated. CHAIR LYNN offered his understanding that a person who had one conviction vacated, but still had one or more other current convictions, would still not be eligible for the PFD because of the pending conviction(s). REPRESENTATIVE GRUENBERG mentioned language "on line 11" and suggested language should be added to include waiting until after an appeal. MS. TUCK advised that most of the questions that had been asked could be answered by Jerry Burnett of the Permanent Fund Division. 8:42:27 AM VICE CHAIR KELLER reiterated that the committee would hold the bill; therefore, Mr. Burnett could choose to defer responses until the next bill hearing. 8:42:43 AM JERRY BURNETT, Deputy Commissioner, Office of the Commissioner, Department of Revenue, introduced Sara Race as the person who could answer questions about costs. 8:43:29 AM SARA RACE, Director, Central Office, Permanent Fund Dividend Division, Department of Revenue (DOR), indicated that the total for costs over the last 18 years is $159.28. CHAIR LYNN added, "Per person." REPRESENTATIVE GRUENBERG clarified that he is not asking about the administrative cost, but how much the division anticipates would be distributed to prisoners. MS. RACE responded that if a person was released from prison after 18 years, "that would be the total that would be administered to that individual." REPRESENTATIVE GRUENBERG clarified that he wants to know the total amount that would be coming out of the permanent fund. VICE CHAIR KELLER asked Representative Gruenberg if he was asking for an historical figure rather than trying to project into the future. REPRESENTATIVE GRUENBERG said he did not think [a projection] could be made easily. MS. RACE relayed that the division currently holds a reserve for paying out dividend money to individuals who have turned 18, and whose parents did not apply for a dividend. She said last year the amount was about $900,000 held in a reserve account in anticipation of those individuals coming forward to collect 18 years of unpaid dividends. 8:46:12 AM REPRESENTATIVE GRUENBERG suggested that the Department of Corrections or the Department of Law should be able to determine how many individuals have been wrongly convicted. He stated that he does not think it wise to assume that the number and amount related to the people who have turned 18 has anything to do with "the prisoners that are in this situation." 8:46:53 AM MR. BURNETT addressed why the proposed legislation is needed. He said there is current regulation, which allows a person whose conviction was vacated to apply within 60 days for a PFD; however, that is only for people who had previously applied for that dividend. He named the two reasons someone is eligible to receive a PFD: he/she meets the residency requirements and applied during the relevant period. The proposed legislation would create [an opportunity] for those people who did not apply. He said the division has already paid dividends to some of the people who have been vacated in the past, because those people had previously applied and met the regulations. He stated that estimating the cost of HB 243 would be complicated, because some of these people will never apply, some will, and some already have and have been paid. He said it is perfectly reasonable for a person not to have applied during an 18-year period. 8:48:36 AM MR. BURNETT addressed the previous question regarding people who are incarcerated out of state. He said currently people who are in the custody of the state and living Outside - not those incarcerated, but, for example, children who are getting medical treatment - maintain their eligibility. He stated, "We see this as analogous to that; they're ... in the custody of the state and they no longer will be denied the dividend because they were incarcerated." MR. BURNETT, in response to Vice Chair Keller, deferred to Ms. Race to answer a question about how the division handles people who are incapacitated and individuals who die during their eligibility period. MS. RACE said an estate has a certain amount of time to apply for the PFD. She said, "We would run something that's very parallel to that, giving them the opportunity ... [for] their families to come back to us and go through the same process as far as determining eligibility." 8:50:22 AM REPRESENTATIVE GRUENBERG indicated that "most of these people are fairly unsophisticated legally" and will require legal assistance to navigate the system. He said, "Otherwise you're going to have people who have been in jail a long time that are fairly disoriented, and they're given a few bucks when they get out and [will be] trying to find themselves and find some work." He said someone who was wrongfully in jail for 10 years would be owed $10,000 to $15,000, and one question that will come up will be pertaining to taxes, which will have to be withheld. Representative Gruenberg expressed concern that people in this possible situation would be able to "make use of this." He said it would take some work to ensure that current statutes are sufficient. He said there would be some cost involved in this, and he hoped there would not be a fiscal note. He said he strongly supports the bill, but would want a legal voice "to be legally sure that that is intended to cover incarcerated people." 8:53:10 AM VICE CHAIR KELLER stated that 2016 is the year when the legislature's focus is on the budget. He expressed appreciation to the sponsor for bringing HB 243 forward. He said Alaska has "the people's natural resources," a portion of which is monetized into the General Fund; however, more than 25 percent has been placed into the Alaska Permanent Fund. He said the ownership of the fund is different from the public common ownership of the other monetized natural resources. He said Alaska is unique in this, and the legislature is learning how to handle the issue. THEDA PITTMAN brought up AS 15.13, Alaska's campaign disclosure law. VICE CHAIR KELLER asked Ms. Pittman if she had an opinion regarding HB 243. MS. PITTMAN stated that she supports The Alaska Innocence Project. She said she was not worried about whether or not she would receive her own PFD after spending considerable time in the Lower 48 looking after her nephew, whom she noted is a Vietnam War veteran. 8:57:35 AM CHAIR LYNN said the budget is at the top of the list for consideration this session, but he opined that justice and fairness are even more important, and that is what HB 243 is all about. He expressed gratitude for the questions that had been brought forward. [HB 243 was held over.]