Legislature(1993 - 1994)
04/16/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 54: OFFENSES BY JUVENILE OFFENDERS Number 472 MS. HORETSKI stated that CSSB 54 (JUD), dated April 16, 1993, was the product resulting from numerous discussions among the DOL representatives, Department of Health and Social Services (DHSS) officials, the sponsor's staff, the legislative drafters, and herself. She noted that SB 54 addressed many public policy issues. She outlined changes incorporated into CSSB 54 (JUD). The first change, she said, appeared on the bottom of page 3, in section 4. MS. HORETSKI said that CSSB 54 (JUD) was a more narrowly- drafted juvenile waiver bill. She called the members' attention to page 5, section 7 of CSSB 54 (JUD). Regarding crimes other than those she had already mentioned, new language appeared on lines 16-18, and provided that when a petition for waiver was filed, the minor had the burden of proving, by a preponderance of evidence, that he or she was "amenable to treatment" within the juvenile court system. MS. HORETSKI noted that under existing law, the District Attorney or an intake worker filed a petition for waiver; CSSB 54 (JUD) would not change that. Nor, she said, did CSSB 54 (JUD) change the fact that a hearing was held once a petition was filed. The standard for whether a juvenile stayed in juvenile court or was waived to adult court, amenability to treatment, was not changed in CSSB 54 (JUD) either, she said. MS. HORETSKI said further that the court was the entity which ultimately decided whether a juvenile was waived to adult court, under both the current law and that proposed in CSSB 54 (JUD). The only factor changed in CSSB 54 (JUD), she said, was that the burden of proof on the treatment issue was shifted to the juvenile, instead of being on the state, as in current law. Number 573 REPRESENTATIVE GREEN asked which court would make the determination as to whether a juvenile should be waived to adult court. MS. HORETSKI replied that a superior court judge, acting as a children's court judge, would make that determination. Number 583 REPRESENTATIVE NORDLUND asked to which crimes the new burden of proof applied. Number 586 MS. HORETSKI responded that, as in existing law, the "amenability to treatment" standard applied to all petitions for waiver for all crimes, and to juveniles of all ages. She mentioned that petitions for delinquency were filed in approximately 18% of cases which were accepted and on which action was taken. In most instances, she said, petitions were not filed. She said that the number of cases, under existing law, in which petitions for waiver were filed was so small that they did not even appear on the DHSS' pie charts. MS. HORETSKI noted that section 5 on page 4 of CSSB 54 (JUD) was also new, and had been included at the request of the sponsor. Because the vast majority of cases did not involve the filing of a petition, she said, section 5, in conjunction with section 6, would allow for restitution in a matter which was "informally adjusted" by the DHSS. Number 637 REPRESENTATIVE GREEN asked if the restitution provisions would apply primarily to situations in which property had been damaged. He also asked what would happen in a rape case. Number 642 MS. HORETSKI stated that section 5 proposed to amend AS 47.10.020, which dealt with informally adjusted cases. She stated that whether or not a petition for waiver into adult court was filed for a sexual assault case would depend on the facts of the case, but the cases which were informally adjusted were usually minor offenses, she added. She stated that the next change in CSSB 54 (JUD) appeared on page 6, and pertained to sealing records. MS. HORETSKI commented that under current law, if a juvenile was tried as an adult and convicted, there was a provision under which a juvenile could request that his or her records be sealed. Language in CSSB 54 (JUD) stated that the court could not seal a juvenile's records under certain circumstances. A conforming amendment appeared on lines 12- 13, she added. The new language provided that if a juvenile was waived into adult court and convicted, records of the conviction could not be sealed unless the juvenile was convicted of an offense which would not have transferred him or her into adult court in the first place. Number 655 MS. HORETSKI called the members' attention to page 8, section 10. She said that existing law, AS 47.10.090, dealt with juvenile records, but was very poorly written and difficult to understand. The drafter had rewritten the section, she said, in order to make it easier to interpret. She stated that new language appeared on page 8, lines 19- 27. She noted that the general rule was that records involving juveniles were confidential. Subsection (b) created an exception to that rule, she said. MS. HORETSKI explained that if a minor was at least 16 years old and was adjudicated delinquent, then the following would be public records: petitions filed to have the juvenile declared a delinquent, petitions filed to revoke probation, petitions filed to waive the juvenile into adult court, and judgments related to any of those petitions. Many juvenile court records would remain confidential, she noted, including educational and psychological records. Number 713 REPRESENTATIVE NORDLUND asked Ms. Horetski to explain how section 1 of CSSB 54 (JUD) related to the section which she had just described. Number 716 MS. HORETSKI explained that section 1 provided that every person had the right to inspect public records, except in certain cases, including the records of juveniles. A further exception to that exception, she said, was when certain juvenile records were deemed public records. She said that language in section 1 cross-referenced language on page 8. MS. HORETSKI commented that there was new conforming language on page 9, line 5. She stated that subsection (2) on page 9, lines 10-12 was new, and provided that state or city law enforcement agencies could disclose to school officials information regarding cases that was needed by the school officials to protect the safety and well-being of the school's students and staff. Number 752 CHAIRMAN PORTER mentioned that there had been two recent cases in Anchorage in which police had taken action against students for firearms' offenses, but later could not disclose to school officials which students had been involved and what the nature of the illegal activity was. Current law precluded law enforcement officials from disclosing certain information about students to school officials, resulting in possible threats to the safety of students and staff. Number 768 MS. HORETSKI said that new language also appeared on page 10, lines 18-26. She noted that subsection (i) was included in the Senate-passed version of SB 54, and provided that victims who wanted to file civil suits against a juvenile offender were included in the group of persons with legitimate interest in the inspection of records. She said that this section would apply to all offenses, and to juveniles of all ages. MS. HORETSKI commented that the final change in CSSB 54 (JUD) was the deletion of conforming language on page 11. It was brought to MS. HORETSKI's attention that some committee members did not have page 11 of the draft committee substitute; an "at ease" was called at 4:14 p.m. in order to have copies made and distributed. The meeting was called back to order at 4:15 p.m. MS. HORETSKI pointed out that certain applicability language on page 11 had been deleted, as it was no longer needed because of other changes made to the bill. She noted that the present applicability section mentioned civil actions and criminal offenses which took place on or after the effective date of SB 54; therefore, she said, the bill was not retroactive. Number 808 CAPTAIN GLENN FLOTHE, from the ALASKA STATE TROOPERS, testified via teleconference from Anchorage in support of automatic waivers for juvenile offenders who committed serious or violent crimes. He deemed it important to hold juvenile offenders responsible for their actions by imposing sentences commensurate with the crime committed. He urged the committee to support SB 54. TAPE 93-62, SIDE B Number 015 JAY PAGE, representing the ANCHORAGE CHAMBER OF COMMERCE'S CRIME COMMITTEE, testified via teleconference from Anchorage in support of SB 54. He said that he had sent a U. S. Department of Justice report to the committee members, and summarized the findings of the report for the committee. The report found that there had been a dramatic increase in juvenile violent crime. He said that the report also found that the most effective response to first and second offenders was to impose sanctions which were carefully designed to instill values of discipline and responsibility. MR. PAGE added that the report found that such sanctions benefited juveniles more than leniency did. He commented that Title 47 of the Alaska Statutes held as a basic premise that juveniles were incapable of understanding their actions. Therefore, rehabilitation, not punishment, was the answer. He said that juvenile rehabilitation was passive in nature, and enabled juveniles to shift responsibility away from themselves, and onto substance abuse or family problems. Number 130 MR. PAGE stated that the recidivism rate at McLaughlin Youth Center was 48%. That, he said, was an indication that the state's juvenile rehabilitation program was not working. He expressed his support for SB 54, especially the shift in the burden of proof regarding amenability to treatment onto the juvenile. He commented that SB 54 was badly needed and urged the committee to pass it out. Number 143 MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW (DOL), expressed her strong support for CSSB 54 (JUD). She said that it closely tracked the governor's juvenile waiver bill by having automatic waiver provisions for 16- and 17-year-olds who committed first- degree murder, second-degree murder, and first-degree attempted murder. She also applauded the shift in the burden of proof regarding treatability. She commented that the juvenile was in a far better position to carry that burden, given a recent court ruling regarding psychological evaluations. Number 173 RANDALL HINES, YOUTH CORRECTIONS SPECIALIST, DEPARTMENT OF HEALTH AND SOCIAL SERVICES (DHSS), DIVISION OF FAMILY AND YOUTH SERVICES, mentioned that the state's juvenile justice laws were somewhat dated. Trends in juvenile justice procedures emerging in other states indicated that Alaska's juvenile justice laws could use some changes, he said. He asserted that currently, the DHSS held juveniles accountable for their behavior, and did not take a passive approach to juvenile offenders. He stated that SB 54 would change statutes so that the DHSS could hold kids more accountable for serious offenses. MR. HINES mentioned that the DHSS' previous concerns regarding SB 54 had been addressed in CSSB 54 (JUD). He asked a question about the last lines of section 6, regarding restitution. His interpretation was that the DHSS would be setting the terms and conditions of restitution. That, he said, was somewhat different from what his agency currently did. He said that currently, the DHSS had a policy of entering into voluntary restitution agreements with juveniles who had not been adjudicated delinquent for offenses. MR. HINES said putting that policy into statute would put the DHSS into the position of having to enforce the restitution agreements at a different level than it now did. He stated that this might be a problem. Number 242 REPRESENTATIVE NORDLUND expressed his opinion that CSSB 54 (JUD) was an improvement over earlier versions of SB 54. However, he said that he still had concerns about incarcerating juveniles charged with offenses in adult court with adult offenders. Number 267 MR. HINES replied that the DHSS shared Representative Nordlund's concern. He said that "sight and sound separation" of juvenile offenders and adult offenders could vary by facility. He commented that it was the Department of Corrections' (DOC's) intent to separate juvenile and adult offenders, both in order to protect juveniles and to facilitate management. Number 286 REPRESENTATIVE NORDLUND noted that no DOC representative was present. He commented that although the DOC might intend to separate juvenile offenders from adult offenders, that might not be possible, due to prison crowding. He was concerned about placing a juvenile who was simply charged with a particular offense into an adult facility. He wanted to see CSSB 54 (JUD) amended to include a requirement that juveniles and adults be separated, at least under some circumstances. Number 301 MS. HORETSKI mentioned that existing statutes regarding sight and sound separation were not clear, and she agreed that practices differed among facilities. She understood that the DOL had advised the DOC that present sight and sound restrictions did not apply to juveniles who had been waived into adult court. She said that CSSB 54 (JUD) would continue that present practice. Number 327 REPRESENTATIVE GREEN asked if a problem would occur if certain juvenile offenders were treated as adults in the justice system, but were still considered juveniles by society when they were released from the justice system. Number 339 CHAIRMAN PORTER stated that automatic waivers only applied to 16-and 17-year-olds and, therefore, those juveniles would be over 18 years old when released from incarceration. Number 347 REPRESENTATIVE GREEN asked if this was also true for crimes and juveniles to which automatic waivers did not apply. Number 350 MR. HINES replied that, in his eighteen years of experience, he only knew of one case in which a juvenile was waived into adult court, served time, was released while still a juvenile, and was arrested again. That juvenile was waived into adult court a second time, he said. CHAIRMAN PORTER responded that the answer to Representative Green's question was "no." He said that if a juvenile was deemed an adult once, for a particular criminal offense, that did not give the juvenile emancipation or any other rights as an adult. He added that it would not create any legal problems. Number 380 REPRESENTATIVE GREEN made a MOTION to ADOPT CSSB 54 (JUD), dated April 16, 1993. There being no objection, IT WAS SO ORDERED. Number 389 REPRESENTATIVE NORDLUND OFFERED AMENDMENT NO. 1, which would allow for "reverse waivers" for certain juveniles who might have committed first- or second-degree murder, or first- degree attempted murder, but where mitigating circumstances applied. He gave an example of a juvenile who had been sexually abused by his or her parents for years, and ended up killing the parents. He expressed his opinion that enacting an ironclad requirement that juveniles who had committed murder be tried in adult court would be too strict. Number 439 REPRESENTATIVE JAMES stated that Representative Nordlund's amendment would defeat the purpose of SB 54. REPRESENTATIVE NORDLUND MOVED AMENDMENT NO. 1. CHAIRMAN PORTER OBJECTED for the purpose of discussing the amendment. He agreed with Representative James. He noted that the committee had already reduced the scope of SB 54. He expressed an opinion that the least a juvenile waiver bill should accomplish was to waive into adult court those juveniles who had intentionally taken a life or attempted to take a life. CHAIRMAN PORTER said that there could be situations that would require an adult court to look at mitigating circumstances, but said that did not mean the state should provide for a "reverse" waiver of the offender back into juvenile court. Number 461 REPRESENTATIVE GREEN commented that the adult court would take into account mitigating circumstances. Number 472 CHAIRMAN PORTER stated that a court could, through a variety of means, consider mitigating circumstances. Number 477 REPRESENTATIVE NORDLUND expressed an opinion that his amendment would not gut the bill, as Representative James had asserted. A roll call vote on amendment no. 1 was taken. Representative Nordlund voted "YEA." Representatives Green, Kott, James, and Porter voted "NAY." And so, AMENDMENT NO. 1 FAILED. Number 491 REPRESENTATIVE KOTT asked to hear from Senator Halford's aide. Number 498 JOHN SHEPHERD, LEGISLATIVE AIDE TO SENATOR RICK HALFORD, commented that there were strong philosophical differences between the Senate-passed version of SB 54 and CSSB 54 (JUD). But, he said, the Judiciary Committee's bill was a giant step in the right direction. He said that concerns had been raised that the courts would view the transfer of the burden of proof as a procedural change, not a substantive one. He mentioned that Senator Halford saw the transfer as a substantive change. MR. SHEPHERD said that if the court viewed the transfer as a procedural change, and the bill did not pass the legislature by a 2/3 margin, then that part of the bill would not stand. However, he said, other components of SB 54 would be given effect. Number 547 CHAIRMAN PORTER called the members' attention to a draft letter of intent in their bill packets. He noted that the legislature had the authority to enact substantive law, and the courts adopted rules of procedure. He said that the change in the burden of proof fell into the gray area between substantive and procedural changes. He noted that the letter of intent asserted that changes made in SB 54 were substantive, and not procedural. Number 584 REPRESENTATIVE GREEN made a MOTION to ADOPT the letter of intent. There being no objection, IT WAS ADOPTED. Number 591 REPRESENTATIVE JAMES made a MOTION to MOVE CSSB 54 (JUD) out of committee, with attached fiscal notes and letter of intent, and with individual recommendations. There being no objection, IT WAS SO ORDERED. Number 607 CHAIRMAN PORTER announced that the committee would take up HB 195 next.
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