Legislature(1993 - 1994)
02/11/1994 01:35 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 54
"An Act relating to violations of laws by juveniles;
and providing for an effective date."
Co-Chair Larson observed that HCS CSSB 54 (JUD) had been
assigned to a subcommittee consisting of Representative
Hanley as Chair and Representatives MacLean, Hoffman,
Parnell and Brown.
Representative Hanley noted that members were provided with
a committee substitute for SB 54, work draft 8-LS0384\N,
dated 2/3/94 (copy on file). He compared the work draft to
HCS CSSB 54 (JUD). He noted that the work draft on page 1,
line 11 deleted "unless the record is, by law, a public
record;" and inserted "unless disclosure is authorized by
law".
Representative Hanley observed that page 2, line 25 of the
work draft added a new mitigator, that the defendant was a
minor when charged.
Representative Hanley referred to changes made on page 5,
lines 20-26 of the work draft. He explained that unless the
minor is convicted of murder in the first degree, attempted
murder in the first degree or murder in the second degree,
the defendant is not automatically waived if they prove they
are amenable to treatment.
Representative Hanley added that page 6, line 7 of the work
draft clarifies that minors taken into custody can be
informally disposed of by the court.
Representative Hanley noted that on page 8, line 19 of the
work draft "treatment facility" was added as a potential
placement of juveniles.
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Representative Hanley stated that page 10, line 9 - page 13,
line 6 of the work draft pertains to public records. He
explained that the public records portion of the previous
version was separated into two sections, Department of
Health and Social Services and court records. Language
contained in HCS CSSB 54 (JUD) pertaining to public records
which threatened the loss of federal funding was removed.
Representative Hanley MOVED to ADOPT work draft 8-LS0384\N,
dated 2/3/94 (copy on file). There being NO OBJECTION, it
was so ordered.
RALPH SAMUELS, ANCHORAGE testified in support of HCS CSSB 54
(FIN). He told the Committee that his brother was killed in
his home by a juvenile committing a robbery. He stressed
that the crime was committed five years ago and that the
defendant was apprehended two days after the crime. The
juvenile involved confessed to the crime but the waiver
hearing has not been resolved. He emphasized that, although
the juvenile has confessed and was found with the deceased's
car, the waiver may be denied because the confession was not
taken in the presence of the juvenile's parents. The
juvenile waived the right to have his parents present.
Mr. Samuels provided members with articles regarding
juvenile offenders (copy on file).
JODY ENGLESON, JUNEAU YOUTH SERVICES expressed concern that
the problem of juvenile violence is being addressed in a
piece meal fashion. She suggested that a task force by
created to address the problem of juvenile crime. She
emphasized the need for prevention and early intervention.
She asserted that the legislation would have a greater
effect on minorities. She maintained that incarceration as
an adult would have adverse affects on minors. She felt
that chances for rehabilitation are better in juvenile
correction facilities. She asserted that juveniles caught
carrying guns are not penalized. She emphasized that
juveniles must learn that their actions will result in
adverse consequences before the crimes committed become
serious.
Representative Martin expressed concern that violent
juvenile offenders are having detrimental affects on younger
or less violent offenders while being housed in juvenile
correctional facilities. He asserted that juveniles respond
to discipline and guidelines.
DEBORAH WING, DIRECTOR, DIVISION OF FAMILY AND YOUTH
SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES testified
in support of HCS CSSB 54 (FIN). She referred to page 8,
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line 19. She noted that the additional language, "treatment
facilities" would have a fiscal impact on medicaid receipts.
Representative Brown pointed out that placement in a
treatment facilities would be optional. Ms. Wing noted that
under this provision that juveniles could be placed in
private treatment facility.
KATHERINE TIBBLES, SOCIAL SERVICES PROGRAM OFFICER,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES explained that
there are a number of juveniles waiting for treatment beds
in state facilities. She stated that the Department
anticipates pressure from the Public Defender Agency and the
Alaska Court System to place juveniles in detention into
treatment beds. She stressed that the Department would
possibly make placements out of state. Medicaid would only
provide approximately 50 percent of the cost.
In response to a question by Representative Brown, Ms.
Tibbles clarified that federal funding would not be lost as
a result of language regarding disclosure of juvenile
records.
SHERRIE GOLL, ALASKA WOMEN'S LOBBY stated that the Alaska
Women's Lobby believes that the current waiver system is
working adequately in most cases. She noted that the Alaska
Women's Lobby does not object to automatic waivers for
serious crimes, such as murder in the first degree.
Ms. Goll suggested that a three tier system be created. She
questioned if juveniles will receive longer sentences when
tried as an adult. She reiterated that juvenile correction
facilities have a lesser rate of recidivism than adult
correctional facilities. She urged the Committee to
consider a planned approach.
Ms. Goll noted that the state of Alaska's Supreme Court has
found that the state's interest in lightening its burden can
not be viewed as justification for subverting the burden of
proof. She entreated the Committee to approach the issue of
juvenile waivers with "small steps, and not take too major a
bite out of the juvenile justice system, without taking a
planned overview."
Representative Martin emphasized the cost to victims of
juvenile crimes. Ms. Goll stressed that additional juvenile
offenders in adult facilities could result in the early
release of adult prisoners, due to overcrowding in the
state's adult correctional facilities.
DUANE UDLAND, DEPUTY CHIEF, ANCHORAGE POLICE DEPARTMENT
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testified via the teleconference network from Anchorage. He
stated that the Anchorage Police Department supports the
legislation.
EDWARD MCNALLY, DISTRICT ATTORNEY, ANCHORAGE, DEPARTMENT OF
LAW testified via the teleconference network from Anchorage.
(Tape Change, HFC 94-32, Side 1)
Mr. McNally urged the Committee to take prompt action on the
legislation. He noted that serious crimes committed by
juveniles are continuing to occur.
Co-Chair Larson read a list of victims of juvenile crimes
that could not testify on their behalf.
Representative Hanley provided members with AMENDMENT 1,
insert on page 5, line 14, "was" and delete "is" after "when
a minor who" and add "at the time of offense" after "age".
(copy on file). He explained that Amendment 1 would clarify
that the age at the time the offense was committed would
determine the offender's age for the waiver process.
Representative Hanley MOVED to ADOPT AMENDMENT 1. There
being NO OBJECTION, it was so ordered.
Co-Chair MacLean provided members with AMENDMENT 2
(Attachment 2). She explained that the Amendment would
address a potential problem arising from the housing of
juvenile offenders in adult facilities. She stated that a
child would not be housed with an adult who has committed
crimes against minors or who has used minors to commit
crimes.
Co-Chair MacLean MOVED to ADOPT AMENDMENT 2.
DIANE SCHENKER, SPECIAL ASSISTANT, DEPARTMENT OF CORRECTIONS
spoke in opposition to Amendment 2. She noted that the
Department is concerned with the mandate to separate
juveniles who are waived to adult status, due to the lack of
space in facilities. She stressed that the Department
currently attempts to keep juvenile offenders separate from
adult prisoners. She requested that the Department be
allowed to keep its flexibility in housing juvenile
offenders. She noted that offenders are sometimes housed in
gymnasiums. She observed that under the amendment a
juvenile female offender could not be housed with an adult
female offender that had been convicted of a vehicular
homicide involving a small child. She asserted that the
adult offender would not represent a particular risk to the
juvenile offender. She maintained that although the
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Department agrees that separation is preferable, they may
not have the resources.
In response to a question by Representative Hanley, Co-Chair
MacLean clarified that the amendment refers to sleeping
quarters. Ms. Schenker maintained the Department's
objections. She emphasized that only five percent of the
state's prison population are in segregated status. She
asserted that the Department's fiscal note will be increased
as a result of the amendment. She noted that frequent
movement through the system makes it difficult to track
offender's offenses before temporary placements are made.
Representative Parnell MOVED to AMEND Amendment 2, to delete
"or in which the offense that was committed by the prisoner
for which the prisoner was convicted involved a juvenile as
an accomplice." There being NO OBJECTION, it was so
ordered.
Representative Therriault questioned the wording of "crime
against a person". He felt that the wording was too broad.
Ms. Schenker stressed that the Department makes good
professional judgement in making housing assignments. She
emphasized that the offender's behavior is considered. She
asserted that categorizing by the crime of conviction is not
necessarily the best protection.
After conferring with Margot Knuth, Criminal Division,
Department of Law and Co-Chair Larson, Co-Chair MacLean
MOVED to AMEND AMENDMENT 2 as AMENDED to read: "A juvenile
committed to the custody of the commissioner when the
juvenile has been convicted as an adult may not be placed in
a cell with an adult prisoner convicted of a sexual offense
in which the victim of the crime was a juvenile." Ms.
Schenker observed that the amendment as amended would allow
the Department more flexibility. There being NO OBJECTION,
Amendment 2 was AMENDED.
There being NO OBJECTION, Amendment 2 was ADOPTED as
amended.
Representative Brown provided members with AMENDMENT 4
(Amendment 3 was withdrawn) (Attachment 3). She explained
that Amendment 4 would limit the burden of proof shift to
the most serious crimes. She provided members with charts
demonstrating the number of defendants that would be
affected (copy on file).
Representative Brown pointed out that in juvenile waiver
cases the state does not have to prove "beyond a reasonable
doubt." The state is only required to present a
"preponderance of evidence" that the defendant is not
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amenable to treatment. She added that the courts have
clearly established that a psychological evaluation is not
required to satisfy the preponderance of evidence standard.
The defendant's history of adjudication, the nature of the
offense and the testimony of treatment providers, family and
opinions of agency personnel are factors that may be used to
support a waiver request.
REPRESENTATIVE IRENE NICHOLIA asserted that statistics show
that Alaska Natives, other minorities and the poor are more
likely to be arrested, convicted and incarcerated than the
majority of our population. She stated that incarceration
rates of Alaska Natives are approximately 37 percent while
they represent 16 percent of the total population. She
maintained that 50 percent of all juveniles in detention are
minority youth. She stressed that Alaska Natives are three
times more likely to be detained than non-Natives.
Co-Chair Larson asked if victims of crimes are
disproportionately Alaska Natives. Mr. McNally agreed that
victims are disproportionately Alaska Natives. He assured
members that the legislation will be used to protect Alaska
Natives. He asserted that Alaska Native juvenile offenders
are not primarily being detained for violent crimes. He
noted that alcohol is usually implicated in cases involving
Native Alaskans.
Representative Brown expressed concern that defendants at
the lower end of the economic spectrum will not have the
resources to provide psychological evaluations.
Representative Grussendorf noted that the status quo will
remain for defendants under the age of 16.
Representative Brown clarified that murder in the first and
second degree and attempted murder will not be affected by
the amendment. Juvenile defendants of unclassified and
class A felonies against persons would have to demonstrate
that they are amendable to treatment if the state seeks a
waiver in their case.
(Tape Change, HFC 94-33, Side 1)
REPRESENTATIVE FRAN ULMER spoke in support of Amendment 3.
She noted that property offenses would not be affected by
the amendment. She observed that Alaska state prisons are
full. She maintained that juveniles tried as adults and
housed as adults would not spend much time in jail for
nonperson crimes. She emphasized that the time they do
spend in prison will have an adverse affect.
In response to a question by Representative Hanley, Mr.
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McNally clarified that the Administration supports the
automatic waiver of juveniles who are 16 or older at the
time the offense was committed. He stated that the
Administration supports the automatic waiver of cases
involving charges of: first degree murder, attempted first
degree murder, second degree murder, kidnapping, rape (first
degree sexual assault), members of a 6 person drug ring,
armed robbery, assault causing serious injury (usually with
a weapon), attempted kidnapping, attempted rape, and
possession of explosives with intent to commit murder or
kidnapping.
In response to a question by Representative Parnell, Mr.
McNally clarified that all unclassified felonies are crimes
against a person. He noted that arson of an unoccupied
building is a class A felony.
MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW noted
that crimes contained in AS 11. 41 are crimes against
persons. She noted that drug offenses, property offenses
and arson are not included. Property offenses and most drug
offenses would be excluded by the amendment. The sale of
heroine and cocaine to an individual who is more than three
years younger than the defendant would be included.
Representative Brown MOVED to ADOPT AMENDMENT 4.
Representative Martin OBJECTED. A roll call vote was taken
on the motion.
IN FAVOR: Brown, Grussendorf, Hanley, Parnell, Therriault,
MacLean, Larson
OPPOSED: Martin
Representatives Hoffman, Navarre and Foster were not present
for the vote.
The MOTION PASSED (7-1).
Representative Brown provided members with AMENDMENT 5
(Attachment 4). She explained that Amendment 5 would allow
the court to order remedial education as a part of the
sentencing of a waived juvenile. She questioned what
opportunities will exist for juveniles in adult facilities
to obtain a General Education Diploma.
Ms. Schenker stated that the Department of Corrections
supports Amendment 5.
Ms. Knuth asserted that the amendment would give judges
additional options for sentencing. She noted that the
amendment would allow greater flexibility for judges.
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Ms. Schenker noted that the Department of Corrections cannot
force offenders to participate in programs other than work
programs.
Representative Ulmer noted that the Department of
Corrections cannot enforce something that the court has not
ordered. She observed that nearly 70 percent of those
incarcerated in Alaskan prisons have not finished their high
school education. She asserted that there is a direct
correlation between education and recidivism.
Ms. Schenker noted that the Department would like to be able
to require remedial education during pretrial status. She
suggested that "charged or" be added to convicted.
Representative Hanley pointed out that the legislation
refers to the court imposing sentence.
Ms. Schenker suggested that page two, section 3 of Amendment
5 is redundant. She also suggested the deletion of
"required by AS 12.55.057" and the insertion of " ordered by
the court in subsection (7) of section 4.
Ms. Schenker noted that statutes regarding the revoking of
parole if the remedial requirement is ignored, may need to
be addressed.
Representative Brown spoke in support of the retention of
section 3.
Representative Hanley MOVED to delete "under As 12.55.057"
on page 2, line 1; delete all of section 3 on page 2; and to
delete "under AS 12.55.057" on page 2, line 30 and insert
"ordered by the court." Co-Chair Larson noted that the
drafter would be given the ability to renumber the sections.
In response to a statement by Representative Martin
regarding the education provision, Ms Knuth clarified that
the section states, "if the program is made available to the
defendant by the Department of Corrections.
There being NO OBJECTION, Amendment 5 was amended.
Representative Martin OBJECTED to the adoption of Amendment
5 as Amended. A roll call vote was taken on the motion
IN FAVOR: Brown, Grussendorf, Hanley, Parnell, Larson,
MacLean
OPPOSED: Martin, Therriault
Representatives Hoffman, Navarre and Foster were not present
for the vote.
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The MOTION PASSED (6-2).
HCS CSSB 54 (FIN) was reported out of Committee with a "do
pass" recommendation and with three fiscal impact notes, one
by the Department of Health and Social Services, one by the
Department of Corrections and one by the Alaska Court
System; and with four zero fiscal notes, two by the
Department of Administration, one by the Department of
Public Safety, and one by the Department of Law.
Transmittal of the bill was to be held until 2/15/94 to
allow agencies an opportunity to revise their fiscal notes
for consideration by the Committee.
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