Legislature(1995 - 1996)

05/04/1995 02:45 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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  SENATE BILL NO. 167                                                          
                                                                               
       An Act relating to day fines in certain criminal  cases                 
       and release of  employment information  for use in  the                 
       collection of criminal judgments.                                       
                                                                               
  Co-chairman  Halford directed that SB 167  be brought on for                 
  discussion.    CHRIS  CHRISTENSEN, General  Counsel,  Alaska                 
                                                                               
                                                                               
  Court System, came before committee.  He explained that last                 
  year the legislature passed law authorizing courts to impose                 
  day fines  for certain  misdemeanor offenses.   Pursuant  to                 
  that law, the Supreme Court appointed an 11-member panel  to                 
  develop a day-fine plan  for implementation.  In the  course                 
  of developing that plan, problems  became apparent.  Some of                 
  the  problems  could   be  rectified  by  simple   technical                 
  amendments  to  the  original statute.    Those  changes are                 
  incorporated  within  SB  167.    However, there  are  other                 
  problems  that  are more  fundamental.   While  the proposed                 
  legislation does not address these problems, solutions could                 
  be incorporated therein.                                                     
                                                                               
  The first problem  relates to legislative intent  in passing                 
  the original law.   It is clear from committee  comments and                 
  floor debate that the primary intention of day-fines law was                 
  to  reduce the number of misdemeanor  offenders who are sent                 
  to  jail and to  increase fine collection  rates.  Day-fines                 
  legislation, as enacted,  will not  achieve either of  those                 
  objectives  without further changes.  Day-fines law excludes                 
  most misdemeanors  for which  people are  presently sent  to                 
  jail.  The vast majority (in  excess of 85%) of those jailed                 
  for misdemeanors are sentenced for one of six crimes:                        
                                                                               
       1.   DWI                                                                
       2.   Refusal to take a breathalizer.                                    
       3.   Driving with license suspended.                                    
       4.   Driving with license revoked.                                      
       5.   Misdemeanor assault.                                               
       6.   Violation  of  a  domestic   violence  restraining                 
  order.                                                                       
                                                                               
  As the law  currently stands,  a day fine  is applicable  to                 
  none  of  the   foregoing.     Day  fines   will  thus   not                 
  significantly reduce  the number  of misdemeanants  clogging                 
  the jail system.                                                             
                                                                               
  The second  problem is  that, as  now structured,  increased                 
  fine collection is unlikely.  Imposing  a day fine is one of                 
  several sentencing options  available to a  judge.  A  judge                 
  will only impose  a day fine, in  lieu of a regular  fine or                 
  jail if the judge feels the  defendant will actually pay the                 
  fine.  Review  of state collection practices  evidences that                 
  current fine collection rates are  "incredibly low."  People                 
  are supposed  to pay  their fines immediately  to the  court                 
  system.  If they  do not, we refer them to  the Dept. of Law                 
  fine collection unit  which is  funded by program  receipts.                 
  That unit is resource limited  and is only able to  go after                 
  PFDs to collect  fines.   The collection rate  is only  10%.                 
  The day-fines committee believes that until the Dept. of Law                 
  receives  additional resources  for fine  collection, judges                 
  are  unlikely  to  use  this  sentencing alternative.    The                 
  committee  thus   suggested  enactment  of   legislation  to                 
  prohibit  issuance  or  renewal  of  a state  license  until                 
                                                                               
                                                                               
  outstanding criminal fines are paid.                                         
                                                                               
  A  further  problem  with  day-fines  law pertains  to  fine                 
  amounts resulting  from the day-fines formula.   In order to                 
  avoid  separation  of  powers  questions,  the   legislature                 
  statutorily specified the unit scale and general formula for                 
  computing  day  fines.   A person  sentenced  for a  class A                 
  misdemeanor can be sent to jail for up to 365 days.  The law                 
  thus  allows for a fine  of up to  365 days of  salary.  The                 
  day-fines committee found that that would require imposition                 
  of fines of "incredible levels."  The committee thus lowered                 
  the maximum number of days of a  person's salary from 365 to                 
  45 days and discovered that even reduction would continue to                 
  require  "some  incredible  fines to  be  imposed."    As an                 
  example, Mr. Christensen cited the  case of a motorist cited                 
  for illegally passing a school bus.  That offense is a class                 
  B  misdemeanor.   When  an individual  is  convicted of  the                 
  offense,  it  involves  a  mandatory  court  appearance, six                 
  points on the  individual's driving license,  and a fine  of                 
  $100  to  $200.    Under day-fines  law,  reduction  of  the                 
  mandated 365  days of  pay to 45  days would require  that a                 
  person with an income of $10,000 receive  a fine of $275.  A                 
  person with income of  $40,000 would receive a $1,100  fine,                 
  and  an individual  with a  $100,000 income  would be  fined                 
  $2,800.00.  Since  fines are so  high, even after  committee                 
  reduction, the Supreme Court is reluctant to proceed without                 
  legislative  review  of fine  levels  and approval  of those                 
  levels.  Mr. Christensen stressed  that establishment of the                 
  foregoing  fines  is not  a  judicial power  but legislative                 
  power delegated to the courts.   He then reiterated need for                 
  the legislature to "sign off on  this before we implement it                 
  because we're not sure it's entirely what you expected."                     
                                                                               
  The second largest category of misdemeanors is fish and game                 
  offenses.  After much deliberation,  the day-fines committee                 
  excluded those  offenses from  the plan.   Unlike Title  11,                 
  which  has clear statutory  framework with classification of                 
  misdemeanors,  fish  and game  law  has no  clear sentencing                 
  structure.  There are many different penalty provisions.  It                 
  is not  always obvious  which  one applies  to a  particular                 
  offense.  Because many offense definitions overlap, the same                 
  conduct  can  be   charged  under  different  statutes   and                 
  regulations  with  entirely  different  consequences.    The                 
  committee   was  unwilling  to   impose  another   layer  of                 
  complexity  on  this  already overly  complex  system.   The                 
  committee recommended that the legislature appoint a special                 
  legislative committee or interagency working group to assess                 
  and   restructure  fish  and  game  penalty  provisions  and                 
  definitions of offenses.                                                     
                                                                               
  In his closing  comments, Mr.  Christensen stressed that  it                 
  will  require  a  significant  commitment  of  resources  to                 
  implement legislation  from last  year.   The proposed  bill                 
  takes  care of  technical problems,  but larger  fundamental                 
                                                                               
                                                                               
  problems  remain  outstanding.    Those   will  need  to  be                 
  addressed at some time.                                                      
                                                                               
  Responding  to  a  question  from  Co-chairman  Halford, Mr.                 
  Christensen  referenced   the  day-fine   report  which   he                 
  explained  had been  furnished to all  legislators' offices.                 
  He reiterated that even after reduction of the possible fine                 
  from 365  days to 45 days, fines  are very high for offenses                 
  that  "people   shouldn't   do  but   sometimes   they   do,                 
  thoughtlessly."  He  urged the  committee to review  numbers                 
  within the report  and advise  the court system  if that  is                 
  what was intended when authority  was provided.  Co-chairman                 
  Halford said he had no problem with the higher fines.                        
                                                                               
  Senator Rieger asked if authority allows the court system to                 
  use a  fraction of a day as  the basis for a day  fine.  Mr.                 
  Christensen suggested that authority to reduce the number of                 
  days  achieved  the  same  result.   He  questioned  whether                 
  application of a  percentage of daily pay could be utilized.                 
                                                                               
                                                                               
  End:      SFC-95, #61, Side 1                                                
  Begin:    SFC-95, #61, Side 2                                                
                                                                               
  In response to  an additional question from  Senator Rieger,                 
  Mr. Christensen explained that the statute allows for use of                 
  aggravating and mitigating  factors.  The court  is required                 
  to  set  a  presumptive  day  fine   for  an  offense.    If                 
  aggravating or mitigating  factors are found, the  judge may                 
  reduce  or  increase the  fine  within a  certain parameter.                 
  Some of the proposed technical changes relate to aggravators                 
  and mitigators.                                                              
                                                                               
  Co-chairman  Halford  voiced  his  belief  that  it  is  not                 
  excessive  to fine  someone  $1,000 or  $1,500 for  "a major                 
  violation that  endangers people."   He  further voiced  his                 
  support for a minimum fine of $5,000 for drunk driving "that                 
  becomes a super lien on the  vehicle on the second offense."                 
  No bank  would then loan on a car,  and no person would loan                 
  their  car  to  an  individual  after  that  individual  was                 
  convicted of DWI.                                                            
                                                                               
  Senator Rieger advised  of need  to review  the schedule  of                 
  fines, suggesting that  some may be  too low and others  too                 
  high.  The maximum amount of 365  days was placed in statute                 
  so that  the judge could  fine or sentence to  jail for that                 
  amount.  It  appears that  when converted to  a cash  basis,                 
  that flexibility was removed either  by the manner in  which                 
  the courts interpreted  the legislation or  the way the  law                 
  actually reads.  He said he was a proponent of day fines but                 
  agreed that the punishment must fit  the crime.  He attested                 
  to problems stemming from erratic enforcement of law.                        
                                                                               
  Mr. Christensen directed attention to  the fine schedule and                 
                                                                               
                                                                               
  noted that a fine for a level  six offense (the most serious                 
  misdemeanor) if  applied to DWI  (which is not  now covered)                 
  could  amount to $5,500  for a person  with $100,000 income.                 
  The  problem is  that because DWI  carries a  mandatory jail                 
  sentence, a  day fine cannot  be applied.   Both Co-chairman                 
  Halford and Senator  Rieger indicated support for  a fine of                 
  that magnitude.  Senator Rieger  then questioned whether the                 
  legislature had the courage to change DWI from the mandatory                 
  three  days  in  jail to  a  stiff  fine.   The  Co-chairman                 
  suggested that if  the change had an  enforcement mechanism,                 
  there would  be support.   Unless  there are  provisions for                 
  something  like  a  super  lien,  the  money   will  not  be                 
  collected.                                                                   
                                                                               
  In  response  to   a  question   from  Senator  Sharp,   Mr.                 
  Christensen explained that for certain misdemeanors, a judge                 
  has the  option of imposing  the standard jail  sentence and                 
  fine or the day fine.  When a day  fine is imposed, there is                 
  no possibility of a jail sentence, but the defendant is "hit                 
  with a  very, very stiff  fine."  Thereafter,  the defendant                 
  cannot  be put in  jail because he  or she does  not pay the                 
  fine  because  the constitution  prohibits  imprisonment for                 
  debt.   As  a  result  of  further  discussion  and  concern                 
  expressed  by  Senator   Sharp,  Mr.  Christensen  suggested                 
  revising  the  traditional  system of  jail  and  a fine  to                 
  include larger fines based  on salary.  The fine  would then                 
  serve as  a condition of probation.  If  it is not paid, the                 
  defendant  would  go to  jail.   Mr.  Christensen questioned                 
  whether  that  would   work  within  the  confines   of  the                 
  constitution.  He noted that  in the present situation,  the                 
  judge "really has to make his decision up front."  The judge                 
  evaluates the defendant and determines whether to impose the                 
  traditional jail time and fine or  a substantial day fine in                 
  lieu of the traditional sentence.  The judge will not levy a                 
  day fine if he or she suspects it will go unpaid.                            
                                                                               
  Senator Zharoff questioned whether alternatives such as jail                 
  time, a low fine, or a higher fine could be imposed based on                 
  the   defendant's   economic   status.     Mr.   Christensen                 
  acknowledged concerns  regarding equal protection.   Under a                 
  day fine, an individual pays a percentage of what he  or she                 
  actually makes.  No matter how poor an individual may be, if                 
  the defendant is making money, he  or she may receive a  day                 
  fine--a percentage  of salary.   The  court will  frequently                 
  impose fines under  the traditional  system, and people  who                 
  cannot  pay  have the  option  of performing  community work                 
  service.  Statutes  have a dollar value for  each day of the                 
  fine.  Judges have the option  of allowing defendants to pay                 
  day fines with legislatively defined community work service.                 
  A judge could not send people to jail "just because they had                 
  no money."                                                                   
                                                                               
  In response to a further question from Senator  Zharoff, Mr.                 
  Christensen voiced his understanding  that while the statute                 
                                                                               
                                                                               
  does not clearly say,  day fines are based on  a defendant's                 
  income rather than combined income of a husband and wife.                    
                                                                               
  Discussion  followed  among  committee   members  concerning                 
  disposition of  the bill and  whether it should  be reviewed                 
  during  the   interim  in   order   to  incorporate   needed                 
  fundamental changes in law.  Mr. Christensen reiterated that                 
  the court is reluctant to proceed with implementation of day                 
  fines without further legislative review.   The court system                 
  will review comments  before committees  and send the  issue                 
  back to the day-fines committee for additional work.                         
                                                                               
  Senator Rieger expressed  support for implementation  of day                 
  fines.   He then  voiced support  for legislative  direction                 
  that allows  the day-fine  schedule to  be more  flexible (a                 
  combination  of  limits on  days,  total days,  fractions of                 
  days, a sliding scale, etc.) and removes prohibition against                 
  use of day fines  for misdemeanors that are now  exempt from                 
  application.  He then asked if  that would be sufficient for                 
  the courts to  implement the program.   Mr. Christensen said                 
  he  could  not  predict  what  the  courts  might  do.    He                 
  acknowledged that the foregoing  changes would help  achieve                 
  one of the purposes  of the day-fine concept:   reduction of                 
  the  number of  misdemeanants clogging  jails.   Co-chairman                 
  Halford  expressed  doubt  that  there  would  be sufficient                 
  legislative support  for inclusion  of DWI  offenders unless                 
  there is assurance  of collection of "major,  multi thousand                 
  dollar fines."                                                               
                                                                               
  Co-chairman Halford voiced his understanding that  day fines                 
  relate  to income but do not apply against assets.  He cited                 
  instances  of  individuals  who  may  have  low  income  but                 
  "tremendous assets" and  suggested that they "ride  the very                 
  low penalty schedule."   He  then asked if  that aspect  was                 
  considered.  Mr.  Christensen acknowledged  the concern  and                 
  suggested that a  judge might decide that a  day fine is not                 
  appropriate for a particular defendant, and  the traditional                 
  jail  sentence  and standard  fine  would  be imposed.    He                 
  stressed that for 90% of  the public, the day-fine  approach                 
  works.                                                                       
                                                                               
  Responding to a question from  Co-chairman Halford regarding                 
  the  seasonal  nature  of  income  for some  residents,  Mr.                 
  Christensen noted that one of the proposed technical changes                 
  requires that judges must believe that the fine will be paid                 
  within one year.   The  original provision required  payment                 
  within six months.  The technical change extends that period                 
  to one year.                                                                 
                                                                               
  Senator Rieger asked if  a judge could suspend a  portion of                 
  the imposition  of a  day fine.   Mr.  Christensen responded                 
  negatively.   However, a  technical change  relates to  set-                 
  aside of conviction.  At the present time a judge may impose                 
  a suspended imposition of sentence and allow one's record to                 
                                                                               
                                                                               
  remain clean.  Day-fine  law does not allow that.   The day-                 
  fines committee felt that if the state allowed for suspended                 
  imposition of  day-fines, it  would encourage  defendants to                 
  pay.   The technical change thus allows a judge to set aside                 
  a conviction if, in the interest  of justice, he believes it                 
  is warranted, and the person has paid his or her fine.                       
                                                                               
  Co-chairman Halford  voiced concern  that the proposed  bill                 
  was introduced on  the 100th day  of a 120-day session,  and                 
  the committee which  should properly deal with such an issue                 
  waived referral to Finance.                                                  
                                                                               
  Further  discussion  followed  regarding  inclusion  of  DWI                 
  offenses.  Co-chairman  Halford stressed  need to ensure  an                 
  arrangement such as three days in jail or a fine of $5,000--                 
  "whichever   the  judge  determines   to  have  the  maximum                 
  deterrent value on that particular offender.  "  If there is                 
  no mechanism for collection, the state will likely never get                 
  paid.  Senator  Rieger expressed his understanding  that the                 
  bill as presently proposed would  not accomplish all that it                 
  should.  Co-chairman Halford suggested that the bill be held                 
  for additional work and advised that  he would bring it back                 
  for further discussion at the next meeting.                                  
                                                                               

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