Legislature(2003 - 2004)

03/22/2004 08:04 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                       HB 357-RESTITUTION                                                                                   
REPRESENTATIVE  RALPH SAMUELS,  sponsor of  HB 357,  told members                                                               
that HB 357  is a conforming statute  to art. 1, sec.  24, of the                                                               
Alaska Constitution.  In 1994, the  legislature approved  and put                                                               
on the  ballot a  victims' right  amendment to  the constitution,                                                               
which  was overwhelmingly  approved  by the  voters.  One of  the                                                               
rights  was the  right to  restitution from  the accused.  HB 357                                                               
mandates the court  to order restitution and allows  the court to                                                               
set  up a  payment schedule  based on  the offender's  ability to                                                               
pay.   The bill  contains one exception  to the  requirement, and                                                               
that is at  the express request of the victim.   During the House                                                               
committee  process,  discussion  centered around  the  fact  that                                                               
sometimes  victims of  violent  crimes never  want  to deal  with                                                               
those  crimes  again  and  decline   restitution.  He  noted  the                                                               
Department of  Law has drafted  an amendment that deals  with the                                                               
technical aspects of collection and disbursement of restitution.                                                                
CHAIR SEEKINS noted  that Version Q was before  the committee. He                                                               
indicated  that   the  bill  says   the  court  may   not  reduce                                                               
restitution but can  change the payment schedule and  asked if it                                                               
could require an offender to pay $1 per year until paid in full.                                                                
SENATOR FRENCH  thought that  would have  the effect  of reducing                                                               
the award if  the offender was only on probation  for 5 years and                                                               
the restitution  award was  $500. He  questioned what  happens at                                                               
the  end of  the  probation  period if  a  large  portion of  the                                                               
restitution is unpaid.                                                                                                          
REPRESENTATIVE SAMUELS  explained that  the bill does  not change                                                               
what occurs now. He added:                                                                                                      
     If  something happens  now, they're  still on  the hook                                                                    
     for it.  What the hammer  is now  - I couldn't  talk to                                                                    
     the  very specifics  of that.  As we  went through  the                                                                    
     process researching this bill,  the advice always given                                                                    
     was  take the  time  to go  file a  civil  suit as  the                                                                    
     victim. We  tried to get  away from that.  We're trying                                                                    
     to make  it -  you know,  here's the  guy that  had his                                                                    
     windshield smashed in,  he wants to get  his money back                                                                    
     without having to hire a  lawyer. That was the point of                                                                    
     doing this. The ins and  outs and the technical aspects                                                                    
     - we didn't  change anything so whatever it  is now, we                                                                    
     didn't touch it.                                                                                                           
SENATOR FRENCH  said that is a  very frustrating area of  the law                                                               
for the  district attorneys,  the victims,  and even  the defense                                                               
attorneys because  a criminal system  gets caught up in  what is,                                                               
to  a  large  degree,  a  civil  process.  He  said  he  is  glad                                                               
Representative  Samuels has  introduced this  legislation because                                                               
this is a troublesome area of law.                                                                                              
REPRESENTATIVE  SAMUELS said  at  one time  he  tried to  address                                                               
problems with juveniles and adults in civil court in the bill:                                                                  
     And  we tried  to tie  it saying  that automatically  a                                                                    
     civil suit would  be filed and that  didn't work either                                                                    
     and as  it grew and  we couldn't manage it  anymore, it                                                                    
     got cut back  to where we didn't change any  other - we                                                                    
     went from,  on page 1  line 4,  it said the  court may,                                                                    
     originally, and we  changed it to shall  and other than                                                                    
     that we  didn't change  a lot of  the substance  of the                                                                    
     way that the  system works now so - you  will order the                                                                    
     restitution however long  it takes the person  - is the                                                                    
     way we're  headed. We  tried to do  more than  that and                                                                    
     make  it easier  but we  seemed  to be  making it  more                                                                    
     difficult  as we  went  down that  road.  I agree  with                                                                    
     Senator French, it's not easy.                                                                                             
CHAIR SEEKINS said as he reads it,  the court will not be able to                                                               
consider the defendant's  ability to pay restitution  and it must                                                               
order full  restitution. He asked if  the hammer is that  it must                                                               
be paid before the offender is off probation.                                                                                   
MS.   ANNE  CARPENETI,   Assistant  Attorney   General,  Criminal                                                               
Division, Department  of Law (DOL),  said that  restitution, like                                                               
fines, is  considered to be  a civil  matter that the  victim can                                                               
pursue after  the period  of probation  so it  can go  beyond the                                                               
period of probation.                                                                                                            
CHAIR  SEEKINS  said he  was  questioning  if,  at the  time  the                                                               
restitution is  ordered, a civil  judgment is placed  against the                                                               
defendant in favor of the person to whom restitution is due.                                                                    
MS. CARPENETI replied,  "Generally the law provides,  I think, in                                                               
the area of  restitution, like fines, that it's  a civil judgment                                                               
that the  person can pursue." She  said that maybe three  or four                                                               
years  ago, the  legislature gave  to  the DOL  the authority  to                                                               
collect  for  victims. The  department  can  do bank  sweeps  and                                                               
executions against the permanent fund dividend.                                                                                 
CHAIR SEEKINS  asked at what  point that free  collection service                                                               
MS. CARPENETI  believed the  service continues  until restitution                                                               
is complete.                                                                                                                    
SENATOR OGAN  expressed concern about taking  away all discretion                                                               
from  the  judge  to consider  the  circumstances  when  ordering                                                               
CHAIR SEEKINS said he reads  Sec. 12.55.051, Enforcement of Fines                                                               
and  Restitution, to  mean the  court can  order restitution  and                                                               
non-payment can be used to  cancel probation. After probation, or                                                               
even  if probation  is not  part  of the  sentence, the  offender                                                               
could be  in contempt  of court  for non-payment  of restitution.                                                               
However, he  believes the  court has leeway  if the  offender can                                                               
show he or she is unable to  pay but is making good faith efforts                                                               
and  the  court  could  even restructure  the  payment  schedule.                                                               
Therefore, the  court would have  some discretion to  address the                                                               
situation Senator Ogan  described. He added that  a defendant can                                                               
actually  request  a  hearing  regarding  inability  to  pay.  He                                                               
imagined  the  court would  then  examine  whether the  repayment                                                               
schedule is bringing  harm to other innocent people,  such as the                                                               
offender's family.                                                                                                              
REPRESENTATIVE  SAMUELS  agreed with  Chair  Seekins  and said  a                                                               
judge could postpone  restitution from an 18 year  old who cannot                                                               
pay until that  person turns 25. He repeated  that restitution is                                                               
required by the Constitution.                                                                                                   
9:15 a.m.                                                                                                                       
SENATOR THERRIAULT  referred to  page 2, line  12, and  asked why                                                               
the reference to subsection (f) is being deleted.                                                                               
MS.  CARPENETI said  it  removes the  provision  that allows  the                                                               
court  to consider  the  level  of fines  and  reduce them  under                                                               
certain circumstances.   She said she  does not see this  bill as                                                               
changing the way the court  determines the amount of restitution.                                                               
She  said she  believes the  court does  take other  factors into                                                               
consideration, but once  a judge arrives at an  amount, it cannot                                                               
be reduced, but the payment schedule can be changed.                                                                            
SENATOR THERRIAULT asked for descriptions  of the two subsections                                                               
being deleted on page 3, section 7.                                                                                             
MS.  CARPENETI said  that  AS 12.55.045(e)  is  a provision  that                                                               
specifically addresses restitution in  vehicle theft cases, which                                                               
will no  longer be necessary  since HB 349 orders  restitution in                                                               
all cases.  The removal of  AS 12.55.045(f) is conforming  to the                                                               
rest of the provision, which  says restitution must be considered                                                               
no matter what the length of sentence.                                                                                          
SENATOR THERRIAULT  moved to  adopt Amendment  1, which  reads as                                                               
                      A M E N D M E N T  1                                                                                  
OFFERED IN THE SENATE                                                                                                           
     TO: CSHB 357(JUD)                                                                                                          
Page 2, lines 16-19:                                                                                                            
     Delete all material and insert the following:                                                                              
          "(n) Notwithstanding another provision of law, the                                                                    
court shall accept  (1) payments of restitution  from a defendant                                                               
at any  time; and (2)  prepayments of restitution or  payments in                                                               
anticipation of  an order  of restitution.  If the  recipient has                                                               
elected to  have the  Department of Law  collect the  judgment of                                                               
restitution under  AS 12.55.051(g),  the court shall  forward all                                                               
payments  of restitution  to the  Department of  Law within  five                                                               
days of the court's acceptance."                                                                                                
Page 3, lines 3-7:                                                                                                              
     Delete all material and insert the following:                                                                              
          "(f) Notwithstanding another provision of law, the                                                                    
court shall accept  (1) payments of restitution  from a defendant                                                               
at any  time; and (2)  prepayments of restitution or  payments in                                                               
anticipation of  an order  of restitution.  If the  recipient has                                                               
elected to  have the  Department of Law  collect the  judgment of                                                               
restitution under  AS 12.55.051(g),  the court shall  forward all                                                               
payments  of restitution  to the  Department of  Law within  five                                                               
days of the court's acceptance.                                                                                                 
AN UNIDENTIFIED MEMBER objected.                                                                                                
MS. CARPENETI explained when a victim  asks DOL to collect on his                                                               
or her  behalf, a procedure is  set up that requires  DOL to keep                                                               
track of  what has  been paid  to the  victim. Amendment  1 makes                                                               
clear that  even though DOL  may be  collecting on a  judgment, a                                                               
judge or  a clerk of  court may accept  payment on that  order of                                                               
restitution  because, in  some circumstances,  the defendant  may                                                               
pay at sentencing. The court needs  to be able to take possession                                                               
of  the  money right  then.  If  the  victim  has chosen  DOL  to                                                               
collect,  that money  must  then  go to  the  DOL for  accounting                                                               
purposes.  She  said  Amendment 1  is  primarily  a  housekeeping                                                               
CHAIR  SEEKINS   announced  that   with  no   further  objection,                                                               
Amendment 1 was adopted. He then took public testimony.                                                                         
MS.  BARBARA BRINK,  Alaska Public  Defender's  Agency, said  she                                                               
does not  object to efforts  to collect restitution on  behalf of                                                               
crime  victims,  but  she  is not  convinced  that  removing  all                                                               
discretion from  the judge is the  best way to do  that. She said                                                               
the  district  attorneys  do  a  very  good  job  at  making  and                                                               
documenting requests  for restitution  and providing  evidence of                                                               
what  is owed.  Frequently, defense  attorneys and  their clients                                                               
agree, upon receiving that documentation,  it should be a part of                                                               
the court order. Under HB 357,  the court will be forced to order                                                               
restitution in cases where the victim  is not involved at all and                                                               
the  evidence  of  the  cost  of restitution  may  be  less  than                                                               
reliable. For example, a police officer  is not likely to spend a                                                               
lot of time estimating  the cost of damage in a  simple case of a                                                               
person  charged with  reckless driving  who engaged  in a  fender                                                               
bender  in a  parking lot.  It is  likely the  victim's insurance                                                               
company will  pay to  repair the damages.  Then, the  court order                                                               
will  require restitution  on the  part of  the defendant  so the                                                               
crime  victim will  get a  windfall. Also,  the police  officer's                                                               
estimate could be  grossly wrong. She said  the current procedure                                                               
for  ordering restitution  is simple,  less  time consuming,  and                                                               
works well. She suggested that  if restitution must be ordered in                                                               
every single  case, there will  be many more situations  in which                                                               
defendants cannot pay  the full amount before  probation is over.                                                               
Therefore, instead of doing a  thoughtful fact finding process at                                                               
the beginning  of a person's  sentence, hearings will have  to be                                                               
held  years later  at  the end  of  the defendant's  probationary                                                               
SENATOR  THERRIAULT said  the language  at the  beginning of  the                                                               
bill says,  "The court shall,  when presented  with evidence...."                                                               
He asked if that satisfies Ms. Brink's concerns.                                                                                
MS.  BRINK  replied  the  rules  of evidence  don't  apply  at  a                                                               
sentencing  hearing  so  the  question  of  whether  or  not  the                                                               
evidence is  reliable would  be "iffy."  She maintained  that her                                                               
point was  if the  victim does  not work  with the  prosecutor to                                                               
document the  loss, the  court will  be relying  on a  very brief                                                               
SENATOR THERRIAULT  asked if  putting a  modifier on  that phrase                                                               
would  alleviate Ms.  Brink's  concern.  He suggested  specifying                                                               
that the evidence must be documented or substantiated.                                                                          
MS. BRINK said it would.                                                                                                        
SENATOR OGAN suggested using the word "reasonable."                                                                             
CHAIR SEEKINS recounted  a personal situation in which  he had to                                                               
provide the  court with  the cost  of repairs  to his  vehicle to                                                               
prove  clear and  convincing evidence  of the  loss. He  said the                                                               
court is aware of what constitutes evidence.                                                                                    
REPRESENTATIVE SAMUELS  pointed out  the phrase,  "when presented                                                               
with evidence,"  was added by  the House Judiciary  Committee. He                                                               
was told by  DOL afterward that it was redundant  because a court                                                               
would never order restitution without a receipt.                                                                                
MS.  SARA NIELSEN,  staff to  Representative Samuels,  added that                                                               
restitution is ordered after a person  is convicted of a crime so                                                               
the "fender-bender" argument would not hold.                                                                                    
SENATOR  FRENCH noted  that the  "fender-bender" could  have been                                                               
caused by a person who  was driving recklessly and added, "...now                                                               
the issue is what do you pay to  fix the car and her example is a                                                               
rooky cop says looks  like $2,000 to me and maybe  it's 5 - maybe                                                               
it's 1  - and whether  or not the  rooky cop's estimation  in the                                                               
field  on a  busy day  is sufficient  to justify  the restitution                                                               
award that could eventually lead  to the revocation of a person's                                                               
probation if it's not satisfied."                                                                                               
MS. NIELSEN  responded that according  to DOL, the  evidence must                                                               
be documented.                                                                                                                  
MR.  STEVE  BRANCHFLOWER,  Director  of the  Office  of  Victims'                                                               
Rights,  stated support  for HB  357, particularly  the provision                                                               
that  allows  the  court  to take  into  account  the  offender's                                                               
present  ability  to  pay.  At   present,  once  an  offender  is                                                               
sentenced  to jail  time, the  court reduces  restitution because                                                               
that person's  earning potential during the  incarceration period                                                               
is nominal.  That reduction in  restitution does not allow  for a                                                               
potential windfall or the possibility  that the offender will get                                                               
a job after being released.  To the extent the restitution awards                                                               
are reduced,  that is  inconsistent with  a victim's  right under                                                               
art.  1,  sec.  24,  to   get  full  restitution.  As  previously                                                               
mentioned,  the court  has jurisdiction  and discretion  under AS                                                               
12.55.051  to make  allowances where  a defendant  can show  good                                                               
faith efforts  to pay restitution  but is  no longer able  to. He                                                               
agrees that adding  a modifier to the word "evidence"  on page l,                                                               
line  4,  would  be  redundant because  the  courts  never  order                                                               
restitution without evidence of the cost.                                                                                       
CHAIR  SEEKINS  announced  that  with  no  further  participants,                                                               
public testimony was closed.                                                                                                    
SENATOR OGAN moved  to add the word "reasonable"  before the word                                                               
"evidence" on  page 1, line 10,  and objected for the  purpose of                                                               
discussion [Amendment 1].                                                                                                       
SENATOR THERRIAULT  noted that  previous testifiers  have pointed                                                               
out  that  language  is unnecessary.  He  suggested  deleting  it                                                               
instead of modifying it.                                                                                                        
SENATOR  FRENCH  asked the  sponsor  if  his  desire is  to  have                                                               
restitution  ordered in  every  single case  no  matter what  the                                                               
defendant's ability to pay.                                                                                                     
REPRESENTATIVE SAMUELS replied:                                                                                                 
     To  me,  you want  to  get  away from  the  defendant's                                                                    
     current ability  to pay. As  far as the  language being                                                                    
     in or out, what they said  - it wasn't necessary but it                                                                    
     certainly didn't  hurt anything. So, I'll  be perfectly                                                                    
     honest, this  is keeping  peace in  the family  to keep                                                                    
     the  language in  there. I'll  be perfectly  honest, it                                                                    
     didn't hurt anything.  And to add reasonable,  and if I                                                                    
     could, the  amendment should also include  line 4 also.                                                                    
     There's two places where there's....                                                                                       
CHAIR SEEKINS asked if the  amendment shortened the debate in the                                                               
[House Judiciary Committee].                                                                                                    
REPRESENTATIVE SAMUELS said it did.                                                                                             
SENATOR OGAN  amended Amendment 1  to add "reasonable" to  line 4                                                               
as well.                                                                                                                        
REPRESENTATIVE  SAMUELS expressed  concern that  adding the  word                                                               
"reasonable" will give the lawyers  one more thing to argue about                                                               
and that the issue will become  who is the better attorney rather                                                               
than making sure the victim gets paid.                                                                                          
SENATOR   OGAN  suggested   it   might  keep   the  victim   from                                                               
overcharging. He  said he  has no  problem mandating  that people                                                               
pay restitution but is concerned that  if the bill takes away the                                                               
judge's  discretion to  decide whether  to order  restitution, it                                                               
should provide for discretion regarding the amount.                                                                             
SENATOR  THERRIAULT commented  that  the  word "reasonable"  will                                                               
apply to the evidence, not the price.                                                                                           
CHAIR  SEEKINS  noted  that  is   why  he  suggested  "clear  and                                                               
SENATOR FRENCH felt that standard would be too high.                                                                            
SENATOR  THERRIAULT remarked,  "I  think we're  just asking  what                                                               
kind of  evidence, what kind  of documentation, what you  need to                                                               
show the court  that you have actually  suffered an out-of-pocket                                                               
expense and again, it's not whether  you went to the lowest price                                                               
windshield shop in  town, it's what you have to  show that you've                                                               
actually forked money out."                                                                                                     
CHAIR SEEKINS said  if he had an accident,  his insurance company                                                               
would require  him to get three  estimates and to use  the lowest                                                               
estimate.  If someone  else hit  him,  he could  get his  vehicle                                                               
repaired  wherever he  wanted to  as a  claimant as  long as  the                                                               
repair cost  was within reason. The  victim has the right  to not                                                               
have to  go to  the cheapest repair  shop to get  his or  her car                                                               
SENATOR FRENCH  questioned whether inserting "a  preponderance of                                                               
the"  [evidence]  would  satisfy   members'  concerns.  It  would                                                               
complicate the matter in that it  inserts a civil standard into a                                                               
criminal  proceeding and  it puts  some burden  on the  victim to                                                               
bring forward evidence.                                                                                                         
CHAIR SEEKINS said that would result in a civil judgment.                                                                       
SENATOR FRENCH  said it  is that  way right now  but part  of the                                                               
idea [behind  HB 357] is  to not force  the victim to  go through                                                               
the hoops  of the civil  system and instead  to use the  power of                                                               
the criminal court to get restitution.                                                                                          
REPRESENTATIVE  SAMUELS offered,  "...on a  preponderance -  it's                                                               
really a  50 percent, 51  percent, that's not a  monetary amount.                                                               
It's kind  of an apples  and oranges to  me. A suggestion  I just                                                               
got  from the  Department  of Law  was  maybe, perhaps,  credible                                                               
SENATOR  THERRIAULT  agreed  "credible"  was  a  good  suggestion                                                               
because it would apply to a valid receipt.                                                                                      
SENATOR THERRIAULT moved to amend  Amendment 1 to change the word                                                               
"reasonable" to the word "credible."                                                                                            
CHAIR SEEKINS  announced that without objection,  Amendment 1 was                                                               
CHAIR SEEKINS asked if there  was further discussion on Amendment                                                               
1 [to insert the word "credible"  prior to the word "evidence" on                                                               
lines  4 and  10 on  page 1].  There being  none, Amendment  1 as                                                               
amended was adopted.                                                                                                            
SENATOR  OGAN moved  SCS CSHB  357(JUD) and  its attached  fiscal                                                               
notes from committee with individual recommendations.                                                                           
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               

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