Legislature(1997 - 1998)
02/12/1997 01:03 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 6 - RELEASE OF INFORMATION ABOUT MINORS HB 3 - DISCLOSURES RE FELONY ARRESTS OF MINORS HCR 4 - SEPARATE RECORDS FOR DELINQUENTS & CINA Number 160 CHAIRMAN GREEN announced the committee would consider three bills: HB 6, "An Act amending laws relating to the disclosure of information relating to certain minors," HB 3, "An Act relating to disclosures of information about certain minors," and HCR 4, relating to records generated and maintained by the Department of Health and Social Services. CHAIRMAN GREEN said they would first consider HB 6. The committee had completed taking testimony on HCR 4 and HB 3 at previous hearings; however, if persons in the audience or on teleconference wished to provide comments, Chairman Green suggested they fax their statement to committee staff and it would be included in the record. He noted that copies of Committee Substitutes would be available at the Legislative Information Offices. REPRESENTATIVE PETE KELLY, prime sponsor of HB 6, advised members that the Youth Corrections Section of the Division of Family and Youth Services (DFYS), within the Department of Health and Social Services (DHSS), is authorized to act on behalf of the court to charge, investigate and either informally settle a matter out of court or file charges and bring the matter before the court when involving a minor. Representative James arrived. REPRESENTATIVE KELLY explained that HB 6 addresses youth who commit crimes and what procedures are taken because of the offense committed. Approximately 85 percent of the cases are informally adjusted by the probation officers in DFYS, and 15 percent of the cases are brought before the court for formal adjudication. Representative Kelly advised members that HB 6 would address both those situations. REPRESENTATIVE KELLY advised members that the bill would provide for the release of juvenile information at the adjustment phase for certain crimes against persons, as well as at adjudication for other crimes. REPRESENTATIVE KELLY directed members' attention to chart which presented a time line of events and how they would be handled under HB 6. When a juvenile is arrested, the police make a referral to DFYS at which point a preliminary investigation is conducted. At that point, the division could also make a determination as to whether formal court action would be necessary. If such action is necessary, the division would file a petition which would go before the court and then a formal adjudication would take place by the court with the outcome being restitution, rehabilitation or placement. REPRESENTATIVE KELLY continued, noting if the DFYS chose not to refer a particular case to the court for formal adjudication, they would begin counseling with the minor. If the minor admits guilt, an informal adjustment would take place, and as in formal adjudication proceedings, the minor would be faced with certain penalties, rehabilitation programs or placement. If under the informal adjustment stage the division determines the minor did not commit the crime, that record would also be released under HB 6. REPRESENTATIVE KELLY pointed out that during the informal adjustment period if the division was unable to gain cooperation from the minor, the division could file a petition and the case would be referred to the court at that time. REPRESENTATIVE CON BUNDE asked at what point disclosure took place. REPRESENTATIVE KELLY advised members disclosure would take place after the minor had admitted guilt and consented to the outcome. REPRESENTATIVE BUNDE stated that if during the preliminary investigation there was no evidence of the minor committing a crime, the process should stop at that point with no information being disclosed. REPRESENTATIVE KELLY agreed that it would not be necessary to release information in that type of situation. Number 790 REPRESENTATIVE ERIC CROFT expressed if the preliminary investigation showed no evidence that the juvenile committed the crime, HB 6 would not authorize disclosure, yet the problem would still exist of how to cure a faulty arrest disclosure under HB 3. He asked Representative Kelly if that would be a correct assumption. Number 821 CHAIRMAN GREEN called for a brief at-ease at 1:15 p.m. He called the meeting back to order at 1:18 p.m. REPRESENTATIVE KELLY felt that could be corrected in HB 3, or thought it would be reasonable to put discretionary language in HB 6, giving the department the discretion to release that information if need be. He suggested that "may" language would allow the department the discretion to release the records of a matter that was not adjusted, for a proceeding that had been closed, in order to protect the minor. Number 887 REPRESENTATIVE CROFT agreed if the problem was caused in HB 3, it should be addressed in that bill. REPRESENTATIVE PORTER pointed out that if HB 6 was the only bill to pass, in its current form, that it would still leave DFYS in a position of not being able to release an adjustment or determination of no probable cause when that information could be published in some other way. He noted that the news media ignored the matter of confidentiality in many instances. If that were to happen, Representative Porter would not want to prevent DFYS from correcting the matter. Number 983 REPRESENTATIVE JAMES expressed her concern of one bill depending on another bill and she felt that it would be necessary to be very careful because once reported out of the House Judiciary Committee the bills would take on a life of their own. Number 1060 REPRESENTATIVE PORTER moved to adopt the proposed committee substitute for HB 6 for the purpose of discussion. There being no objection, CSHB 6(JUD) was adopted. REPRESENTATIVE KELLY explained that the difference in the committee substitute was a result of many discussions with the administration. Representative Kelly advised members that the committee substitute would provide for disclosure at adjustment of crimes against persons, and a list of felonies that are particularly dangerous; arson, burglary, distribution of child pornography, promoting prostitution in the first degree, misconduct involving a controlled substance, to manufacture or deliver, causing physical injury and use of a dangerous instrument. REPRESENTATIVE KELLY stated that the bill still addressed misdemeanors, although not to the extent as in the previous version. Representative Kelly advised members that he was concerned about the attitude of a juvenile as they relate to law enforcement. That was addressed in the proposed committee substitute under Section 4, page 3, beginning on line 5, that there will be disclosure at, "the minor's alleged commission of an offense that is a misdemeanor and the minor has previously failed (A) to comply with the terms of a restitution plan or order; (B) to engage in a rehabilitation program ordered by a court or required by a facility or juvenile probation officer; or (C) to comply with a court ordered or probation officer required placement plan." Representative Kelly pointed out that the rehabilitation programs could include not only substance abuse programs, but shoplifting classes as well. REPRESENTATIVE KELLY explained that rather than the number of misdemeanors a juvenile commits, his or her attitude towards those misdemeanors would also be considered under the new proposed committee substitute. This would provide the department a tool if the individual was not complying with the rehabilitation orders or restitution to release the name of the juvenile. REPRESENTATIVE KELLY pointed out that the names of juveniles 16 years of age and older would be released on all felonies at adjudication. REPRESENTATIVE BERKOWITZ referenced the charge of a misdemeanor which causes physical injury to a person, and advised members that that would be a charge of 4th degree assault, and the definition of physical injury was physical pain. He pointed out that if a child punched someone in the arm it could be prosecuted as a 4th degree assault. Representative Berkowitz asked if those assaults would result in the release of information under the new proposed committee substitute. REPRESENTATIVE KELLY noted that 4th degree assault could be something far more serious than that, and that it would result in the release of information under the proposed committee substitute. REPRESENTATIVE BERKOWITZ referenced page 4, the language relating to the recognition of a failure to comply, and asked if that was subsequent to some sort of revocation proceeding in a court. REPRESENTATIVE KELLY stated that it would be within the DFYS, not the court system. He asked Representative Berkowitz to explain what he was calling a revocation proceeding. Number 1432 REPRESENTATIVE BERKOWITZ pointed out that an example placed within the bill language was a juvenile's failure to engage in an ordered rehabilitation program. He advised members that it was known that there was a substantial backlog in those programs and it could be difficult to get enrolled in one. Representative Berkowitz noted that he had seen the defense raised that the juvenile had been attempting to comply, and courts find "attempting to comply defense" acceptable. He stated that if there was going to be a different standard for juveniles who were attempting to comply, and their name is still released, that it could pose some equal protection problems. REPRESENTATIVE KELLY felt that one of the reasons they arrived at that forum for the misdemeanors was that it would still provide the department some discretion. He expressed that it would be somewhat of a subjective call to comply with the terms of a restitution plan, and that would be up to the probation officer to either note compliance or noncompliance. REPRESENTATIVE NORMAN ROKEBERG pointed out that he could not find any discretionary language in the proposed committee substitute. REPRESENTATIVE KELLY explained that the probation officers would be the ones having that discretion as to whether the juvenile complied or not. REPRESENTATIVE ROKEBERG felt if that was the intent that language should be included in the bill granting that discretion. REPRESENTATIVE PORTER stated that there would not be any discretion once the department determined there had been a failure to comply with one of the listed provisions; however, it was up to the department to determine compliance or noncompliance. It was doubtful, in his mind, that the department would violate their probation and release the juvenile's name if they failed to engage in a rehabilitation program that was not readily available. Representative Porter further stated that a situation such as that would not be considered a failure to engage in the program, but a failure to be allowed to engage in the program. Number 1677 DIANE WORLEY, Director, Division of Family and Youth Services, Department of Health and Social Services, advised members she had only just received the new proposed committee substitute; however, she advised members that in many communities adequate treatment services were not available and many juveniles did get placed on waiting lists and remained there for an extended period of time. She stated that not only for services available out in the community, but even when they have a B-1 order to go into the department's facility, the individual is often times held in detention waiting to get into the treatment programs. Ms. Worley advised members the department would want that type of discretion within the proposed legislation because it would not be fair to a youth who was truly trying to comply but was unable to because of the unavailability of immediate placement into a program. REPRESENTATIVE PORTER noted that the proposed committee substitute set an age limit for those petitioned and determined to be guilty, yet there was no age limit imposed on those who are adjusted. He stated that in effect, the only juveniles that would go through the adjudication, formal court petition process and have their names released would take place anyway because they had been waived to adult court. Also, there could be some felony cases who claim innocence, which would result in having to prove the individual committed the crime. Representative Porter stated that there was no age limit on releasing the names of juveniles who admit guilt. He asked that members of the subcommittee consider that during their deliberations. REPRESENTATIVE KELLY responded that the age differences were based on the nature of the crime. He stated that the names of the younger criminals would be released if they posed more of a threat to public safety. It was felt the juvenile 16 years of age should know better and the name would be released; however, the concern of those juveniles younger than age 16 was the threat to public safety. REPRESENTATIVE ROKEBERG pointed out that there was not an updated fiscal note from the department and asked Ms. Worley if that would be forthcoming. MS. WORLEY reiterated that she had not had the chance to review the new proposed committee substitute, but a fiscal note would be prepared and provided to relate to that version of the bill. MS. WORLEY advised members if the department began to release names of juveniles at the adjustment phase that the DFYS would lose the incentive for the child and parents to sit down and negotiate, which would then result in court action. Ms. Worley felt that could fiscally impact the court system and asked members of the subcommittee to consider that. REPRESENTATIVE ROKEBERG wanted to assure there was no duplication of fiscal needs between the three proposed pieces of legislation: HCR 4, HB 3 and HB 6. TAPE 97-15, SIDE B Number 000 REPRESENTATIVE CROFT asked why it would be necessary to include the name of the parent when information is disclosed. REPRESENTATIVE KELLY felt that was something the subcommittee could consider, adding that he did not know if that would be important or not. CHAIRMAN GREEN assigned HCR 4, HB 3 and HB 6 to a subcommittee consisting of Representative Bunde as Chair, along with Representatives Porter and Croft. MICHAEL KIRK, retired school teacher, expressed that no gadget would solve a problem if there was no resolve from the people empowered to make the decisions. Mr. Kirk made reference to the conversations relating to dollars and advised members that the school system did not expel children from schools anymore for fear of the loss of funds, and that results in punishing the children that are in school trying to do their best. MR. KIRK advised members he was not in support of punishment, not even for adults; however, he did believe in restitution and rehabilitation when possible. He pointed out that he quit teaching two and a half months into the school year out of disgust; not with the youngsters, but with the adults. Mr. Kirk advised members he was upset with the adults who had no resolve because everything was ambiguous and ambivalent, and youngsters who were begging someone to show them the way have no one to look to. MR. KIRK provided an example for the members and subcommittee to consider when discussing the three pieces of legislation. He was walking down a school hallway and came upon a youngster vandalizing a locker which had just been repaired over the summer and he put his hand on his or her shoulder and said, "That's really an artistic job." And the youngster says, "You mean you like it?" Mr. Kirk says, "No, I didn't say I liked it, I said it was an artistic job." So, the youngster says, "Well, what are you going to do about it?" Mr. Kirk says, "I am going to do nothing, you have just volunteered to help the custodian for a week. And since you can't fix lockers, you will have to sweep and to scrub an hour after school each day." Mr. Kirk noted that he would then call the parent to advise what he had assigned their child to do. Mr. Kirk stated that the next day he was called into the office and told, "We have already cancelled your assignment and you have a reprimand in your file." CHAIRMAN GREEN thanked Mr. Kirk for his comments. REPRESENTATIVE JAMES appreciated the comments presented by Mr. Kirk, as well. REPRESENTATIVE ROKEBERG asked Mr. Kirk how he felt about releasing the names of parents. MR. KIRK stated that if only the child was named there could be other families with the same last name and that could create a situation where all the families could be perceived as guilty. It was his recommendation that the parents are named so that sort of confusion or condemnation would not be the result. REPRESENTATIVE PORTER expressed his appreciation of the comments and suggestions presented by Mr. Kirk. AL NEAR, Fairbanks resident, stated that as a recent victim of juvenile crime he had seen first hand how ineffective the justice system handles the growing problem of juvenile crime. He noted that the delinquents in the case he was making reference to were apprehended, but it took the presence of a dozen victims at the court house to keep the young offenders in custody. After that point, victims were shut out of subsequent hearings because of the disclosure laws, and the court petitions did not include the victim's names until weeks later after the juveniles had been released. Mr. Near pointed out that one of the juveniles continued to burglarize and vandalize until he was apprehended again; however, that time he shot and almost killed the arresting officer. Mr. Near advised members that he felt the approach to disclosure in the proposed committee substitute, HB 6, was a very good start. CHAIRMAN GREEN requested the subcommittee to look at the age they felt full disclosure should be made and the degree of crime that had been modified in the new proposed committee substitute. CAM CARLSON, resident of Fairbanks, expressed that there was a time when confidentiality was not the rule of the day. She felt it was necessary to do away with confidentiality and that juveniles should be caught and exposed the first time they commit a wrong doing. Ms. Carlson pointed out that a strong component of deterring adults and youth from committing crimes was public awareness of what they had done, adding that public humiliation was a very strong medicine that worked. MS. CARLSON stated that the current mode of confidentiality was treated as a joke by the youth, themselves. They feel that they can do anything until they turn 18 years of age, and then everything would be erased from the record.
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