Legislature(1995 - 1996)

03/08/1995 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                                                                    
                                                                               

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