Legislature(1995 - 1996)
05/04/1995 02:45 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.