Legislature(1995 - 1996)
03/08/1995 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJUD - 03/08/95 HB 15 - PUBLIC DISCLOSURE OF MINORS COURT RECORDS Number 400 REPRESENTATIVE GENE THERRIAULT, bill sponsor, introduced HB 15. Sponsor Statement: "This legislation is intended as an intermediate step in the juvenile justice system that goes beyond the degree of punishment currently possible, but stops short of prosecution as an adult. It would allow the State, under certain strict circumstances, to release the names of juvenile offenders. "With varying degrees of exceptions, most states require a court order to release the names of juvenile offenders. Recently, however the trend has been toward cracking that confidentiality. In 1993, according to the National Conference of State Legislatures, Kansas approved a law that allows officials to publicize the names of juveniles over the age of 13 who are convicted of certain violent crimes. In 1990, Rhode Island opened the records of juveniles who are over 15. In May 1994, Illinois legislators overwhelmingly approved a measure to make public the names of juveniles convicted of crimes involving guns, gangs or felony drug violations. "In Alaska, prior to 1994, the law contained a little-used provision that allowed publication of the name of a minor who committed two offenses classified as felonies. Last year, Senate Bill 54 replaced that provision with one that prohibits disclosure of the name or picture of a minor under the jurisdiction of the court in connection with the minor's status as a delinquent child unless authorized by order of the court. House Bill 15 would again allow the State to disclose the name, address and picture of a minor following a second felony offense unless the court entered an order barring disclosure "for good cause shown in individual cases." "The current shield of anonymity and lack of serious penalties foster the perception among many young adults entering the justice system that they can get away with anything. This reinforces criminal behavior that continues into adulthood, where the consequences are far more serious. "Tight confidentiality laws have been near the center of America's juvenile justice philosophy for decades. However, society has changed since juvenile justice systems were created around the turn of the century, and it is time for law enforcement to change as well. This small step toward lifting the privileged status of a juvenile, when that juvenile has willingly and repeatedly broken the law, is a reasonable step in that direction." REPRESENTATIVE THERRIAULT agreed wholeheartedly with a comment Governor Knowles made in his "State of the State Address." In talking about his crime package, he said, with regard to the crackdown on youth violence, "We have lost from the 'Leave it to Beaver' era, for thugs from the 'Terminator' age." We must give police and prosecutors the tools to attack gangs and youth violence and to increase parental accountability. That is part of what this bill does. What they are basically trying to do with HB 15, is return a section of statutes that was deleted when SB 54 was passed last year. He actually took place in the deliberation of that last year, but the way the bill was drafted, the existing language was deleted and replaced by a whole new section. Rather than having existing language in the bill bracketed, to show what was going out, it was just nullifying these sections, and a number of the members did not, at that time, quite understand what the impact would be. What we want to do is basically replace that. The confusion stemmed from the fact that it was unclear whether it was an agency that controlled the release of the information or the Court System. What SB 54 did, was break that into two separate sections. Now you have the agency records, with its rules, and you have the Court record, with its rules. Specifically with the court records, we are attempting to return to the allowance for information being released for second felony offenses, unless the court specifically finds just cause not to release the information on a particular case. The reason for putting it into the court section is that there are confidentiality requirements in the 1972 Social Security Act that limit the release of information from the state agency files. To try and get around that, he asked that it be specifically over on the court side. REPRESENTATIVE THERRIAULT added that a number of fiscal notes indicate that passage of this legislation may jeopardize up to $6,000,000 in federal funds. He felt these fiscal notes to be in error, and was hoping to have a legal memo from Washington D.C. today that would have clarified that. What we have found out is that there is a difference of opinion between Region 10 of the federal health and social service agencies and other regions of the nation. We have asked for clarification. If in fact, this would jeopardize those funds, there are a number of other states who have already jeopardized their funds and would be on the verge of losing those federal funds. But that is not so. Colorado law calls for exactly what we are asking for in HB 15. There has been no loss of federal funds. Kansas and Illinois laws are very specific about making information available, and none of these states indicated that there has been any loss of federal funds. REPRESENTATIVE THERRIAULT continued, saying that the new law we enacted last year said that the name or picture of a minor under the jurisdiction of the court may not be made public in connection with the minor's status as a delinquent child or adult in need of aid, unless authorized by the courts. It is my understanding that the argument about the potential loss of federal funds is based on release of any information, although our current statute which we just passed says that the courts can make a finding and can release that information. REPRESENTATIVE THERRIAULT was given a memo at this point in the meeting, clarifying what they were discussing. The memo was addressed to Richard McConnell, Branch Chief of Region X, Administration for Children and Families, Seattle. It was from Carol Williams, at the Associate Commissioner's Office of the Administration on Children, Youth and Families in Washington D.C. Number 540 CHAIRMAN BRIAN PORTER clarified that we cannot release information that is in their file, but if somehow, totally independently, another file were started, that would be up to us whether or not we wanted to release it, under state law. REPRESENTATIVE THERRIAULT stated that was his interpretation too. In addition, the court system just put out a new fiscal note, with regards to the number of records that would be impacted. Page 2 of the fiscal note shows that in fiscal year 94, petitions were submitted to the courts from 65 juveniles whose records would be subject to disclosure. There is some question about the fiscal impact with regards to the number of records that would be affected by the passage of HB 15. Number 560 MARTHA HOLMBERG, Social Services Program Officer, Division of Family and Youth Services, Department of Health and Social Services, said she had not had the opportunity to read what had just been distributed, but she understood that any information given by their division to the court, binds everyone who receives it to confidentiality, so the receiver cannot release the information. CHAIRMAN PORTER mentioned that the criminal records we are talking about releasing, are not tied to the programs that they are saying require confidentiality about those program records. He did not think there was anything in this bill that would indicate a desire to release those. MS. HOLMBERG stated she felt the bill would still impact their federal receipts, because it is not clear that the information would be brought to the public through any vehicle other than the Division of Family and Youth Services. She thought the Department of Law should be the distributor of the information. CHAIRMAN PORTER asked her to read the letter from the Administration for Children and Families, Washington D.C., to see if that would help clear it up for her. CHRIS CHRISTENSEN, General Counsel, Judicial Branch, Alaska Court System, reminded committee members, as a matter of policy, the Supreme Court takes no position on legislation, other than legislation which directly affects the internal operation of the Judicial Branch. He said he would give the committee an idea of how much it would cost the Court System, and also make some technical suggestions, but would take no position. He first described some basic problems that exist with the court system's juvenile records as they relate to this piece of legislation. MR. CHRISTENSEN explained that first of all, the members need to understand the limitations of the court's records. Our records are not computerized, they are purely paper files. Even the indexes are not computerized, so any information requires a clerk to do a manual index review, and then a manual file review to see what is in the file. Some of these files are quite thick, even on young kids. There is no statewide record suppository, or statewide index. There are 15 Superior Court locations which do juvenile cases, which means if you want to know something about a particular kid's record, you have to contact all 15 courts, because the court in Anchorage might not have any idea that the kid who had previously lived in Fairbanks had a record there. Alternatively, you could contact one court, and that court could contact the other 14 courts. According to statistics provided by DFYS, in FY 94 there were only about 65 juveniles whose records would be subject to disclosure by HB 15. That does not sound like many files. The problem is, we have a juvenile population, ages 9 through 18, of about 75,000 kids; and there are scores of thousands of young adults who are only a few years out of that age range. Now this is actually the potential group about whom records requests can be made by the public. Statewide, the courts receive about 3,500 written requests per year for an adult's criminal record. We only will accept a written request if the person is out of state or lives in a community other than where the courthouse is located. Far more individuals and businesses perform criminal records research in person. In Anchorage alone, for example, roughly 75 people a day come in and look through our index, and then ask to see criminal files. They ask to look for a total of about 500 criminal files per day. If you multiply that times 260 official state work days, that is a lot of file requests. With adults, the only work the court clerk has to do is run back to the archives and retrieve it for the requester. With juvenile records, the clerk would have to look through the index, because most of the names in the index are confidential. The clerk would have to go get the file, and look through it to see what was in it. Understand that our counter clerks are range eight's, and a range eight clerk is not going to be qualified to actually look through a file and determine what is in it. That will have to be handed off to one of the range 12 legal technicians, of which we do not have too many. At that point, the person is going to have to start calling the other 14 courts to determine if there was a first felony conviction someplace else. This is something that is going to take very long, is very complex, and will have to be done many times, even though there are only going to be 65 kids a year about whom the information will ultimately be released. MR. CHRISTENSEN said there is one way to eliminate our note, and another way that would decrease it by about 90 percent. To eliminate it, we would have DFYS administer the program, or else the Department of Public Safety, through the Alaska Public Safety Information Network (APSIN) computer system. DFYS has a statewide computer. Of course, it is much cheaper to have a range six clerk type a name into a computer and get a printout with the information, than to have a range 12 clerk calling all over the state looking for records. Up until now, we have never placed juvenile's records in APSIN. This has always been a very significant issue. As you know, on July 1 of this year, the adult criminal records in APSIN are going to be made available to the public for the first time. It would be possible to take this list of 65 kids that is generated each leap year, provide it to the Department of Public Safety, and then anyone with a question could go to them, and they could punch a name into a computer. This whole issue of where best it should be done, is tied into the loss of federal funds. He briefly skimmed the memo from the Administration for Children and Families, in Washington D.C., stating that it appears to say that any records we received from DFYS, we cannot release. All the information we have in our files, we get from DFYS, because they are the prosecuting authority. They tell us who the kid is, where he lives, what he is accused of doing, and provide all the backup. He did not know for sure that the memo would allow us to do what this bill requires. MR. CHRISTENSEN stated the other way to decrease our fiscal note by 95 percent; as the bill is drafted, it can probably be read as to applying retroactively to all of those case files which currently exist. That is where we have the problem with going back into old files and looking up names. If we applied this only to kids who were accused of a second felony, from the effective date of the bill on, as each of these 60 files comes into existence, over the next year we would simply take a sheet of paper which has the kid's name and address on it, and what the accusation is, and put it in a ring binder at the front counter; so anyone could look through it to see if a kid they were interested in, was in it. That would be a relatively inexpensive thing to do. What he understood the purpose of this legislation to be was to create an additional consequence, so that kids will be deterred from committing crimes. We cannot deter kids who have already committed a crime, but we can deter those 65 new kids we are going to generate this year, perhaps. MR. CHRISTENSEN noted the bill does have one technical problem. It requires a judicial determination at the time of filing. Judges do not look at the case at the time of filing. They do not look at the case file until the initial arraignment. An additional problem is, we perceive this as a serious consequence, but, if the judge makes this determination at the time of filing, that is before the kid even has an attorney, or a guardian ad litem, or a parent involved, the kid has no way to object to this release. Even though the bill says the judge is supposed to make a judicial determination at the time of filing, judges will not do so until the time of arraignment, for legal and practical reasons both. The bill could be redrafted to simply provide for that, to avoid any confusion in the future. In each of these 65 cases, the judge is going to have to make a good cause determination as to whether or not the kids should have the files released. He had talked to Bill Hitchcock, Standing Master in Anchorage, who handles one half of all the juvenile felonies in the state. Mr. Hitchcock does not expect that to take much time. For most of these kids, you can probably make that decision in under 15 minutes, just by seeing what they have done before, and what they are accused of now; therefore costs have not been included in the fiscal note for additional judicial time to make that determination. Number 720 REPRESENTATIVE VEZEY felt the bill was too soft on juveniles. Would it make life easier for the people in the court system to delete all reference under subsection (d)(2)? This would make any delinquent court record public information. MR. CHRISTENSEN said yes and no. Adult files used to be completely open until the Victims Rights Act was passed about 5 years ago, which made certain parts of adult records closed. Our costs to implement that, which are not funded, have proven to be about $120,000 to $150,000 a year of excess clerical time, just to distinguish between those parts of adult files that are closed, and are open. The only reason our costs are so low, is because we figured out a sneaky way to get the attorneys to do about 85 percent of the work. Otherwise, our costs would be too much to imagine. If juvenile files were essentially open, that would be less expensive than having them partially open and partially closed. What you would see, however, is a violation of the constitutional right to privacy. This right includes rehabilitation as a factor that must be considered. A complete opening of juveniles records would be challenged almost immediately. There is a difference between saying the records of a 17 year old serial rapist should be open, versus saying the records of a nine year old shoplifter should be open. There is a difference in terms of potential rehabilitation, and right to privacy. Clerical costs would be less, but you would be opening up a big can of worms. Number 760 REPRESENTATIVE BUNDE asked if we were putting a bandaid on this problem. Would it be a cleaner approach to solving the problem if the juvenile services were transferred to the Courts? Number 775 MR. CHRISTENSEN was told by the folks in Washington D.C., that the reason Alaska has previously been told by Region 10 that they could not make their juvenile records public, like some other states have, is because Alaska is one of a very few states that has the delinquent cases and the "child in need of aid" cases in the same agency. In most states, they are in two separate agencies, or else one program is administered by the county while the other is handled by the state. Because ours are all under the same state agency, we cannot release the records. The problem with transferring part of it to the Court System, is that, as a matter of separating powers, you cannot have the prosecuting authority also be the judicial authority. In many states they make the separation by putting one part into DFYS, and the other into Corrections. REPRESENTATIVE BUNDE said he mis-spoke, he actually meant Corrections, not the Courts. While that is a much larger policy call, that would solve the problem of confidentiality. MR. CHRISTENSEN understood it would, but he had not examined that memo from Washington D.C. in any detail yet. Number 800 CHAIRMAN PORTER said it was obvious there were a couple of things they needed to fix in the bill. He asked Martha Holmberg how the files worked within DFYS. Would there be one file per child, regardless of what activity, through your jurisdiction, fell on that child? Would a child receiving aid who committed a felony, have all of that information in the same physical file? Number 810 MS. HOLMBERG answered it may not go into the same physical file, but there would be an additional file if there is a petition for adjudication of delinquency. There would probably be two separate files, but they would probably be combined as the jurisdiction and supervision went to the youth probation section of the division. CHAIRMAN PORTER said the intent of the federal legislation seemed to be to keep the names of juveniles who are receiving this federal aid, confidential. MS. HOLMBERG thought that was correct. Even though the bill is not specifically asking for information on whether or not a child is receiving aid, by virtue of what the bill is asking for, if the court received the information from the division, the court must abide by confidentiality regulations. LAURI OTTO, Deputy Attorney General, Department of Law, Criminal Division, felt this was an unfunded mandate. This is an area where the federal government has decided on certain policies they want the states to follow in exchange for receiving federal funds. They are saying if we are giving this kind of federal money to an agency, you have to have certain confidentiality provisions in place. The restrictions apply to an agency as a whole, regardless of whether a particular child is receiving funds. MS. OTTO said the way to solve the problem would be to move juvenile probation out of DFYS into a completely separate agency. One of the problems with doing that, is that, not surprisingly, there is a very high percentage of children in need of aid who then become juvenile delinquents. We do not have a system in the juvenile area with graduated penalties for degrees of offense, like we do for adults. It is all designed on an individual basis to try to figure out what is best for each child, and so they rely heavily on their information from the "child in need of aid" files. MS. OTTO continued, stating that as a prosecutor, she had experienced a great deal of frustration with DFYS, trying to get information from them that she felt was essential to be able to make decisions on how to handle cases on these kids who come into the adult system. We get the same answer you are hearing here. There are tight restrictions on what you can do. She felt Representative Therriault was committed to work through the problems without jeopardizing the funds. We are really willing to work with him. TAPE 95-26, SIDE B Number 000 CHAIRMAN PORTER said there has to be a way to construct DFYS records so that you can keep certain files private, and still be allowed to obtain other information. Number 035 REPRESENTATIVE THERRIAULT said when they initially contacted the Department of Corrections, the response was very favorable, then after contacting Region 10, they decided to reconsider. He would like to try and figure out a way to make this work. His concern is that we have a system that reinforces juvenile delinquency. It allows them to commit the same crimes for years, and then we slam them into an adult jail when they reach a certain age. CHAIRMAN PORTER totally agreed. Nobody wants to publicize the nine year old shoplifter, but the second time armed robber is benefitting from the cloak of confidentiality and knows it. He announced the bill would be held over in order to provide time for revisions.