Legislature(2005 - 2006)
05/03/2005 02:20 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| Commission on Judicial Conduct | |
| SB101 | |
| SJR12 | |
| SB154 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 154 - JUVENILE DELINQUENCY PROCEEDINGS 3:07:34 PM CHAIR McGUIRE announced that the final order of business would be CS FOR SENATE BILL NO. 154(JUD), "An Act relating to the jurisdiction for proceedings relating to delinquent minors and to telephonic and televised participation in those proceedings; amending Rules 2, 3, 4, 8, 12, 13, 14, 15, 16, 21, 22, 23, 24.1, and 25, Alaska Delinquency Rules; and providing for an effective date." 3:07:53 PM HEATHER BRAKES, Staff to Senator Gene Therriault, Senate State Affairs Standing Committee, Alaska State Legislature, sponsor, relayed on behalf of Senator Therriault that SB 154 addresses two concerns of the juvenile justice system (JJS) in Alaska. First, it improves the state's ability to hold juvenile offenders accountable for their conduct, and, second, it increases the efficiency of the JJS by allowing telephonic hearings in certain court proceedings. Specifically, SB 154 addresses the loophole in Alaska statutes that allows young offenders to avoid prosecution if their role in a crime is not discovered, or charges have not been brought, until after the offender becomes 18 years of age. MS. BRAKES relayed that currently, when a person under the age of 18 commits a delinquent act, the JJS is responsible for the matter, but when a person [18 years of age or older] commits a crime, the adult criminal system is responsible for prosecution. Recent court decisions have highlighted the following loophole in the law: when a youth commits a delinquent act while under the age of 18 but this fact is not discovered or the proceedings aren't filed until the person reaches the age of 18, then neither the adult justice system nor the juvenile justice system has clear jurisdiction. She mentioned that members' packets contain copies of recent Alaska Superior Court cases which illustrate the aforementioned problem. MS. BRAKES said that SB 154 proposes to address this loophole, and thereby allow offenders to be held accountable for their actions, by providing that the delinquent minor statutes apply to persons who commit a crime while under the age of 18 if the [statute] of limitation for the crime has not expired. Without this change, she concluded, the State has no ability to hold perpetrators accountable for their behavior, because a clear legal jurisdiction would not have been established. MS. BRAKES offered that the second aspect of SB 154 will allow the State to more cost-effectively manage juvenile offenders while continuing to ensure that their rights to fair hearings and due process are maintained, reiterating that this will be accomplished via allowing for telephonic participation in certain court proceedings. 3:10:36 PM REPRESENTATIVE COGHILL, with regard to the telephonic participation provisions, asked what protections are in place to ensure that juveniles are not being intimidated during the aforementioned proceedings. MS. BRAKES suggested that the director of the Division of Juvenile Justice (DJJ) could better address that question, but offered her understanding that it will be up to the court to decide if/when it is in the best interest of the juvenile to appear telephonically. REPRESENTATIVE COGHILL noted that intimidation can go both ways, and that one can't see what is actually going on at the juvenile's location. He asked how the court would view things it can hear but not see. 3:12:24 PM PATTY WARE, Director, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), concurred that the decision of if/when a juvenile can participate in a proceeding telephonically will be made by the judge, and offered her understanding that there will probably be very few instances in which telephonic participation will be utilized. She went on to note that Section 9 specifies that a juvenile has the right to be physically present for arraignment, adjudication, disposition, probation revocation, extension of jurisdiction, and waiver of jurisdiction hearings. Under SB 154, telephonic participation would be allowed in instances where the juvenile's personal appearance is not essential to the fair disposition of the matter, such as status review hearings or detention review hearings; in such hearings, both parties have agreed ahead of time as to what will occur. The DJJ is currently spending a few hundred thousand dollars a year transporting juveniles to such hearings. Again, she assured the committee, the proposed change will leave it to the judge's discretion whether telephonic participation would be an option in a particular instance. REPRESENTATIVE COGHILL surmised, then, that juveniles participating telephonically will either be in custody or with counsel. MS. WARE concurred. 3:14:49 PM REPRESENTATIVE GRUENBERG referred to page 6, line 23 - specifically the language, "not essential to the fair disposition of the matter" - and said he would feel more comfortable if the words, "or unfair to the juvenile" were added after the word "matter". MS. WARE said she would not have a problem with such a change. REPRESENTATIVE GRUENBERG noted that Dean Guaneli, Department of Law (DOL), was nodding. REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 1, to add to page 6, line 23, the words "or unfair to the juvenile" after the words "of the matter". REPRESENTATIVE COGHILL objected for the purpose of discussion. He surmised that the rights of the juvenile will still be preserved even without the additional language. REPRESENTATIVE GRUENBERG opined that there may be situations in which it is essential for the juvenile to have face-to-face communication. 3:19:10 PM REPRESENTATIVE COGHILL pointed out, though, that in such cases, that very argument will be made by the juvenile's counsel. He opined that inclusion of the word "or" will tend to diminish [the judge's] flexibility, and, again, that the original language already provides for fairness. REPRESENTATIVE GRUENBERG asked whether Representative Coghill would be amenable to having the language instead say, "not essential to the fair disposition of the matter and unfair to the juvenile". [Although no formal motion was made, Conceptual Amendment 1 was later treated as amended.] CHAIR McGUIRE surmised that by definition the juvenile will be taken into consideration, since the disposition of the matter will directly affect the juvenile. 3:21:23 PM REPRESENTATIVE GRUENBERG pointed out, however, that there might still be instances in which it is in the juvenile's best interest to participate in the proceedings "face to face." REPRESENTATIVE COGHILL clarified that his concern is that the word "or" could create complications. He indicated that use of the word "and" would alleviate his concern, though he does consider the language being added to be extra language. He then removed his objection to the motion. REPRESENTATIVE GRUENBERG clarified that Conceptual Amendment 1 [as amended] will add, "and unfair to the juvenile", after the words, "not essential to the fair disposition of the matter". CHAIR McGUIRE asked whether there were any further objections to Amendment 1 [as amended]. There being none, Conceptual Amendment 1, as amended, was adopted. 3:23:57 PM REPRESENTATIVE DAHLSTROM characterized the bill as good, surmising that it takes into consideration both the best interest of the juvenile and the uniqueness of the state, and will allow the JJS to achieve more. REPRESENTATIVE COGHILL asked what the procedure will be when a perpetrator who has reached the age of majority is charged with a crime he/she committed as a minor. MS. WARE said that depending on the seriousness of the crime - for example, if the crime committed was one for which the juvenile could have been waived into the adult justice system - the rules governing the adult justice system would apply. REPRESENTATIVE COGHILL surmised, then, that the person would have all the rights of an adult. MS. WARE concurred, adding that the case would be handled as an adult case. REPRESENTATIVE GRUENBERG asked whether either of the two aforementioned cases provided in members' packets were appealed, and, if so, what the results were. MS. WARE offered to research that issue. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SB 154. REPRESENTATIVE GARA asked whether the Office of Public Advocacy (OPA) has any concerns with the bill. 3:29:34 PM JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), said that the OPA does not have an official position on SB 154, but offered his understanding that under the bill, in situations involving detention reviews, even if the juvenile asked to participate in person, the court could still disallow it, and this is of concern to the OPA. He also suggested that Section 1 of the bill could open the door to what he called "recovered memory" prosecutions. MS. WARE acknowledged the latter point, but surmised that such cases would be "extreme outliers." The intent of the bill is to improve public safety in the state, particularly with regard to sexual abuse of a minor cases wherein the state currently has no ability to hold perpetrators accountable under either justice system. This inability is simply unacceptable, she remarked. MS. WARE, in response to questions, said that although a whole range of issues was thoroughly considered in drafting the bill, neither the Public Defender Agency (PDA) nor the OPA were specifically asked for input. 3:34:11 PM DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), noted that a number of years ago, the statute of limitations regarding serious sex offenses was essentially removed, and the bill makes the statutes regarding juvenile offenders of such crimes consistent with the statutes regarding similar adult offenders. Whether the JJS is going to be able to effectively deal with such offenders remains to be seen; nevertheless, he opined, there ought to be some way of addressing such situations, and the rules should be consistent with those pertaining to adults. With regard to the issue of detention reviews, he noted that in most detention reviews the juvenile offender never gets on the stand and isn't likely to provide any additional information pertinent to the proceeding, that such proceedings are not something that the juvenile needs to be present for. And if that is not the case in a particular situation, he predicted, the judge will allow the juvenile to be present in person. CHAIR McGUIRE opined that Conceptual Amendment 1, as amended, will clarify the court's duty to ensure fairness for the juvenile offender. 3:37:49 PM MS. WARE, notwithstanding her earlier remark, offered her understanding that after hearing concerns from the PDA, the Senate Judiciary Standing Committee changed the bill with regard to [certain types of] hearings. REPRESENTATIVE GARA asked why he should not be concerned that the bill will increase costs for [the OPA and the PDA]. MS. WARE offered her understanding that that issue was also discussed in Senate Judiciary Standing Committee and the answer from the PDA was that the PDA would not be spending money to send a public defender to be physically present with the juvenile offender in situations where the juvenile is participating telephonically. She attempted to assure the committee that it is not the DHSS's intent to transfer costs to another entity such as the PDA or the OPA, and that the DJJ would not be requesting a telephonic hearing if there is any contested issue. The intent of the telephonic participation provisions is to instead provide a mechanism whereby the judge can make a determination regarding whether a particular circumstance warrants participation in person. REPRESENTATIVE GARA asked whether the provision would apply to "trial call" as well. 3:40:27 PM MR. GUANELI offered his understanding that a "trial call" would be precisely the type of proceeding in which the juvenile would not necessarily need to be present. He again predicted that in the rare case of a juvenile's presence being necessary, the judge will order it. REPRESENTATIVE GARA said his concern is that the telephonic participation provisions will result in public advocates and public defenders not getting adequate time to meet with their clients without spending scarce resources. MR. GUANELI opined that it is not the DJJ's responsibility to transport clients to court simply to ensure that the OPA and the PDA get adequate time with their clients. Rather, such responsibility falls to the OPA and the PDA, and, yes, he acknowledged, that might involve the public advocate or public defender having to travel to where the client is in cases where the client isn't being transported to court by the DJJ. 3:44:15 PM MR. GUANELI, in response to a question regarding delayed trials, opined that regardless of the reason for the delay, there will be cases where an adult offender of a delinquent offense is not immediately brought to trial, and so the department will have to decide whether it really wants to pursue the matter or whether, in some situations, adequate legal recourse is already being pursued elsewhere. The flexibility to pursue such matters should be given to the [department], he concluded, regardless of the age of the adult offender of a delinquent offense. MS. WARE concurred that according to Section 7, the department would not be limited to dealing only with juvenile-offense perpetrators of a certain age. She pointed out that it is not the DJJ's intention to be using juvenile probation officers or juvenile correctional facilities to handle the aforementioned adults. REPRESENTATIVE GRUENBERG asked, then, whether conforming changes to the adult offender statutes would be necessary to allow Department of Corrections (DOC) personnel to handle those adults. MS. WARE said no. 3:49:38 PM REPRESENTATIVE GARA made a motion to adopt Amendment [2], a handwritten amendment which, with handwritten corrections, read [original punctuation provided]: Insert@ p. 6 line 23 after "matter" as follows "and personal contact between counsel and the juvenile are not needed for case presentation." CHAIR McGUIRE objected for the purpose of discussion. She asked whether the DJJ objected to [Amendment 2]. MS. WARE, noting that it will still be up to the judge to decide whether to allow telephonic participation, said that [Amendment 2] is acceptable. CHAIR McGUIRE, noting that Conceptual Amendment 1, as amended, has already been adopted, made a motion to amend Amendment 2, to add the words, "and personal contact between counsel and the juvenile are not needed for case presentation", after the newly added words, "and unfair to the juvenile". REPRESENTATIVE GARA indicated a willingness to allow the drafter leeway to insert the wording from both amendments as appropriate. [Amendment 2 was treated as amended with regard to location of insertion.] REPRESENTATIVE GRUENBERG pointed out that in the language being added via Amendment 2 [as amended], the phrase should be "is not needed". REPRESENTATIVE GARA indicated a willingness to amend Amendment 2, as amended, with regard to the word, "is". [Amendment 2, as amended, was again treated as amended.] CHAIR McGUIRE removed her objection to Amendment 2 [as amended twice], and asked whether there were any further objections. There being no objection, Amendment 2, as amended, was adopted. 3:51:59 PM REPRESENTATIVE DAHLSTROM moved to report CSSB 154(JUD), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 154(JUD) was reported from the House Judiciary Standing Committee.
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