Legislature(2017 - 2018)GRUENBERG 120
04/11/2018 01:00 PM JUDICIARY
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HB 351-JUVENILES: JUSTICE,FACILITES,TREATMENT 6:31:15 PM CHAIR CLAMAN announced that the next order of business would be HOUSE BILL NO. 351, "An Act relating to care of juveniles and to juvenile justice; relating to employment of juvenile probation officers by the Department of Health and Social Services; relating to terms used in juvenile justice; relating to mandatory reporters of child abuse or neglect; relating to adjudication of minor delinquency and the deoxyribonucleic acid identification registration system; relating to sexual assault in the third degree; relating to sexual assault in the fourth degree; repealing a requirement for administrative revocation of a minor's driver's license, permit, privilege to drive, or privilege to obtain a license for consumption or possession of alcohol or drugs; and providing for an effective date." 6:31:38 PM CHAIR CLAMAN moved to adopt Amendment 1, labeled 30-LS0416\N.3, Laffen, 4/10/18, which read as follows: Page 1, line 5, following "system;": Insert "relating to jurisdiction for delinquency proceedings;" Page 1, line 8, following "drugs;": Insert "amending Rules 2, 3, 8, 12, 14, 16, 21, 22, 23, and 25, Alaska Delinquency Rules;" Page 9, following line 4: Insert a new bill section to read: "* Sec. 17. AS 47.12.020(b) is amended to read: (b) Except as otherwise provided in this chapter, proceedings relating to a person who is 18 years of age or over are governed by this chapter if the person is alleged to have committed a violation of (1) the criminal law of the state or a municipality of the state, the violation occurred when the person was under 18 years of age, and the period of limitation under AS 12.10 has not expired; or (2) AS 11.56.760(a)(2) and was adjudicated as a delinquent for the offense that required the DNA testing under AS 44.41.035." Renumber the following bill sections accordingly. Page 19, following line 14: Insert a new bill section to read: "* Sec. 41. The uncodified law of the State of Alaska is amended by adding a new section to read: INDIRECT COURT RULE AMENDMENT. AS 47.12.020(b), as amended by sec. 17 of this Act, has the effect of amending the following Alaska Delinquency Rules by providing that certain persons 18 years of age or older are subject to adjudication as minors: (1) Rule 2(n), Alaska Delinquency Rules; (2) Rule 3(b), Alaska Delinquency Rules; (3) Rule 3(c), Alaska Delinquency Rules; (4) Rule 8(b), Alaska Delinquency Rules; (5) Rule 8(c), Alaska Delinquency Rules; (6) Rule 12(b), Alaska Delinquency Rules; (7) Rule 12(c), Alaska Delinquency Rules; (8) Rule 12(d), Alaska Delinquency Rules; (9) Rule 14(b), Alaska Delinquency Rules; (10) Rule 16(a), Alaska Delinquency Rules; (11) Rule 16(b), Alaska Delinquency Rules; (12) Rule 21(g), Alaska Delinquency Rules; (13) Rule 22(c), Alaska Delinquency Rules; (14) Rule 23(b), Alaska Delinquency Rules; (15) Rule 25(b), Alaska Delinquency Rules; (16) Rule 25(c)(4), Alaska Delinquency Rules." Renumber the following bill sections accordingly. Page 19, line 22, following the first occurrence of "Act": Insert "AS 47.12.020(b), as amended by sec. 17 of this Act," Page 19, line 22: Delete "sec. 19" Insert "sec. 20" Page 19, line 23: Delete "secs. 2 - 9 and 19" Insert "secs. 2 - 9, 17, and 20" Page 19, following line 29: Insert a new bill section to read: "* Sec. 44. The uncodified law of the State of Alaska is amended by adding a new section to read: CONDITIONAL EFFECT. Section 17 of this Act takes effect only if sec. 41 of this Act receives the two- thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of Alaska." Renumber the following bill section accordingly. Page 19, line 30: Delete "Section 41" Insert "Section 43" REPRESENTATIVE STUTES objected for purposes of discussion. 6:32:16 PM CHAIR CLAMAN explained that he is moving Amendment 1 on behalf of the bill sponsor. 6:32:39 PM The committee took an at-ease from 6:32 p.m. to 6:33 p.m. 6:33:20 PM [Discussion regarding the amendments.] 6:34:05 PM REPRESENTATIVE IVY SPOHNHOLZ advised that Amendment 1 was requested by Quinlan Steiner, Public Defender and he is available by telephone. CHAIR CLAMAN asked Quinlan Steiner to explained Amendment 1. 6:34:20 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), advised that as he reviewed CSHB 351, he noted that in creating a new crime for failing to provide a DNA sample, there is the possibility that it would result in an adult criminal conviction stemming from an arrest and adjudication under the juvenile delinquency rules. This, he explained, created a situation wherein the legislature should consider the following two particular problems: it would leave an adult record that was visible that required a predicated conviction which would not be visible on CourtView, and that would be an indication that someone had a juvenile record. Thereby, openly undermining the juveniles' attempts at rehabilitation. The inconsistency of having a juvenile adjudication running at the same time as an adult criminal offense, where this adult criminal offense could ultimately override the primary concerns of rehabilitation in a juvenile delinquency matter, and those two appear to be inconsistent. Consequently, he said that he made the suggestion to handle this entire matter, stemming from a juvenile delinquency matter, under the juvenile delinquency rules, which would be more consistent with the focus on rehabilitation. 6:36:09 PM REPRESENTATIVE KREISS-TOMKINS moved Conceptual Amendment 1 Version 30-LS0416\N.4, to Amendment 1 Version 30-LS0416\N.3, which read as follows: Page 2, following line 5: Insert a new paragraph to read: "(1) Rule 2(k), Alaska Delinquency Rules;" Renumber the following paragraphs accordingly. Page 2, following line 5: Insert a new paragraph to read: "(1) Rule 2(k), Alaska Delinquency Rules;" Renumber the following paragraphs accordingly. CHAIR CLAMAN asked Mr. Steiner to explain Amendment N.4. 6:36:45 PM MR. STEINER advised that he had not seen Conceptual Amendment 1 to Amendment 1. CHAIR CLAMAN explained how the above amendment read, and he explained that it adds one more delinquency rule that was not in Amendment 1. MR. STEINER responded that those were discussions "we had," but that is the definition of a juvenile. Therefore, he explained, the committee would be making an indirect rule amendment to make clear that the definition of juvenile in this limited circumstance includes an individual who was 18 years of age at the time this failure to provide DNA event occurred. Normally, he further explained, someone who is 18 years of age, under the juvenile delinquency rules, the conduct predates their 18th birthday. He explained that the court can make this clear in the rules that what was happening now needed to be governed by the delinquency rules. 6:37:47 PM CHAIR CLAMAN asked whether there was an objection to the adoption of Conceptual Amendment 1 to Amendment 1. There being no objection, Conceptual Amendment 1 to Amendment 1 was adopted. 6:37:59 PM CHAIR CLAMAN asked whether there was an objection to the adoption of Amendment 1, as amended. REPRESENTATIVE EASTMAN objected. 6:38:13 PM REPRESENTATIVE KOPP referred to Amendment 1, and commented that it looks like a DNA swab based on a juvenile offense, and asked whether this amendment changes what the law would be currently. For example, if a 16-year-old committed an assault and was required to submit to a DNA test, and for various reasons by the time they were served with an order they were age 18 and they refused to submit a DNA sample, "so now they have an adult charge based on a two-year old juvenile charge." He asked whether the law (audio difficulties). MR. STEINER responded that under current statute, a juvenile is required to provide a sample and that doesn't change, it simply makes it a criminal offense. The concern comes in where someone's conduct occurs just prior their 18th birthday, they are arrested or adjudicated after their 18th birthday, and they then choose to not provide a sample. In the prior law, that was non-criminal and now it becomes criminal, it is simply that it would be handled as a juvenile offense rather than an adult offense, he offered. 6:39:53 PM REPRESENTATIVE KOPP (audio difficulties). MR. STEINER answered that the bill actually changes the way the law works because the bill itself makes it a criminal offense where it was not a criminal offense. Amended Amendment 1 is focused on making sure the underlying case continues to be handled as a juvenile matter even though the refusal occurred after an 18th birthday. He said that will put the two cases together, essentially, and ensure that focus for that individual remains on rehabilitation as is generally the case (audio difficulties). CHAIR CLAMAN referred to Sec. 19 [AS 47.12.120(l)] page 12, 14- 25, and explained that it turns what was a non-criminal offense into a criminal offense. Under current law, not giving a DNA sample is not a criminal offense, and this bill will make it a criminal offense. 6:41:28 PM REPRESENTATIVE LEDOUX surmised that if a person committed a crime as a juvenile, and then after their 18th birthday they commit the other crime of failing to submit a DNA sample, this amendment would still make that subject to the juvenile rules. She asked why the committee should do that because they were an adult when they decided to not provide their DNA. MR. STEINER answered that Representative LeDoux is correct as long as the requirement that the person provide the DNA sample stems from something that occurred as a juvenile. Under this amendment, that adult conduct would be treated similarly as to the case with the juvenile conduct. The reason being, he explained, is two-fold: one is that you would have on CourtView and in the public record, a record of a conviction for which a predicate must exist. The predicate being a conviction or adjudication for something that would lead to information indicating that that person had a juvenile record. Thereby, he pointed out, essentially opening up confidentiality and making clear that there is a possible juvenile record there, it could have been an out-of-state record but it could also be a juvenile record. He pointed out that it would be counter to the goals of rehabilitation and keeping confidentiality for juvenile so they can move past whatever juvenile conduct took place. The other reason being, he offered, is that this can happen relatively quickly in that someone could be arrested just before their 18th birthday, and then this event could occur right after their 18th birthday, all based upon juvenile conduct. Again, he said, that would sever the juvenile goals and now there are competing interests in this adult case and that might overwhelm or overrule the focus on juvenile rehabilitation and a chance to move ahead. 6:44:00 PM MATT DAVIDSON, Social Services Program Officer, Division of Juvenile Justice, explained that Amendment 1, as amended, addresses an issue that Mr. Steiner identified to the division, and the Department of Health and Social Services (DHSS) does not have a concern about the amendment. He explained that the division collects DNA samples if the offense was a felony against persons and occurred after their 16th birthday. He remarked that the scenario of a juvenile refusing to submit their DNA sample "doesn't really happen," so it is not a case the division sees a lot of where the juveniles are an adjudicated delinquent for a crime against a person and they turn 18 years of age, and then they refuse to submit a DNA sample, "that doesn't happen." In the event it did take place, the division believes it is appropriate that they continue to stay in the juvenile justice system. Juveniles who are adjudicated close to their 18th birthday can stay in the juvenile justice system up to age 20. Therefore, he explained, they can commit a crime when they are almost 18 years of age and continue to stay in the system up to age 20 with their own agreement. He offered that the issues Mr. Steiner identified are appropriate in that the conduct that would lead to this criminal offense is related to a delinquency offense, and the division is prepared to handle those cases in the same manner it handles other delinquency offenses. 6:45:33 PM REPRESENTATIVE LEDOUX commented that possibly the committee should reconsider CourtView but she would not make a decision as to whether or not something should be a criminal offense depending upon whether it would be listed on CourtView. 6:46:08 PM REPRESENTATIVE EASTMAN offered his impression that one of the distinctions between dealing with this under the juvenile section versus the adult section is due to the hope that by the time someone becomes an adult they could have then been rehabilitated and had the opportunity to learn from their mistakes. He asked whether he had misinterpreted the testimony. MR. DAVIDSON explained that the delinquency statutes and the purpose of the division is slightly different than the adult correctional system, and one example is that juvenile records are deemed confidential. Mr. Steiner identified this unusual circumstance which could take place here, wherein juveniles have been added to the crime of failure to submit a DNA sample, and they are in the juvenile justice system proceeding through their process and possibly in a treatment program, but they refuse to submit a DNA sample. The juvenile would stay in the juvenile justice system, therefore, this offense that occurred related to their previous delinquency offense would be attached, of which the division is not concerned. 6:47:52 PM REPRESENTATIVE EASTMAN offered a scenario of a juvenile who commits a felony, they are in the system for that felony, and now "we want to say that" just because they turned 18 does not mean they should be treated as an adult and should be treated as a juvenile. He asked, at what point does the division want to "cut them loose," at what age if it is not age 18. JUDY JESSEN, Staff, Representative Ivy Spohnholz, Alaska State Legislature, responded that (audio difficulties). 6:49:09 PM REPRESENTATIVE EASTMAN pointed out that Ms. Jessen did not answer his question, and his question was directed to the Division of Juvenile Justice. MR. DAVIDSON answered that, after the age of 18 the new criminal acts are referred to the adult criminal justice system. As this act is related to a delinquent act and it is actually a responsibility that the division is administering, the division and the public defender believe it is appropriate to stay in the juvenile justice system. He explained that it is similar to conditions of conduct for release from custody, some of those conditions become criminal acts because the person failed to follow through on their appropriate probation conditions. Those people stay in the juvenile justice system even though they could be viewed as new criminal acts because they are under the division's supervision. He reiterated that this is an unusual circumstance, it is not something the division sees, and the drafter identified that juveniles are required to submit DNA samples and they had not been included in this criminal act under Title 11. That issue, he explained, the drafters identified as a bit of incongruity in the fact they were under Title 44, they were required to submit DNA samples but they were not subject to the penalties, the same requirements. 6:50:49 PM REPRESENTATIVE KOPP asked whether the only circumstance under which a DNA swab would be sought would be due to a felony offense against a person. MR. DAVIDSON responded, a minor over the age of 16 who commits a felony against a person. 6:51:24 PM REPRESENTATIVE KOPP referred to a less severe offense and offered the scenario of a 17-year-old being arrested for a DUI, "and then when they turn 18, by the time they are offered the breath test because they were arrested at 11:00 p.m., they do a breath test refusal." He commented that that is a separate class A misdemeanor offense, or it could be felony depending upon whether they had refused the test previously. He related that that is only possible because they were arrested for a DUI, and he asked whether that would be the same circumstance under juvenile law because they do not serve three days in prison. MR. DAVIDSON replied that Representative Kopp identified an offense that is outside of the juvenile justice system, it is a driving offense and handled by the district court. He related that he was not in a position to speak as to how a DUI fits into the scenario. 6:52:34 PM REPRESENTATIVE REINBOLD commented that she believes in "catching them early" and helping kids to change their ways and heart due to a conviction. She related that it is fair to all Alaskans to know whether a person committed a felony against a person and that past behavior is often predicted future behavior. She asked whether this legislation makes it softer or easier in any manner, or is this a technical change with regard to people not being able to see records or understand that a person had been a danger in the past. MR. DAVIDSON answered that he does not believe it does, the offense being discussed is refusing to submit to a DNA test, which is a mouth swab administered in the office. The underlying offense would not be the offense that led them to the DNA sample and it would not be available to the public, so that change is not a concern. REPRESENTATIVE EASTMAN maintained his objection to Amendment 1, as amended. 6:54:00 PM A roll call vote was taken. Representatives Stutes, Kreiss- Tomkins, and Claman voted in favor of the adoption of Amendment 1, as amended. Representatives Kopp, LeDoux, Eastman, and Reinbold voted against it. Therefore, Amendment 1, as amended, failed to be adopted by a vote of 3-4. 6:54:56 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 2, labeled 30- LS0416\N.1, Laffen, 4/6/18, which read as follows: Page 18, line 20, through page 19, line 12: Delete all material and insert: "* Sec. 38. AS 47.17.020(a) is amended to read: (a) The following persons who, in the performance of their occupational duties or [,] their appointed duties under (8) of this subsection, [OR THEIR VOLUNTEER DUTIES UNDER (9) OF THIS SUBSECTION,] have reasonable cause to suspect that a child has suffered harm as a result of child abuse or neglect shall immediately report the harm to the nearest office of the department: (1) practitioners of the healing arts; (2) school teachers and school administrative staff members, including athletic coaches, of public and private schools; (3) peace officers and officers of the Department of Corrections; (4) administrative officers of institutions; (5) child care providers; (6) paid employees of domestic violence and sexual assault programs, and crisis intervention and prevention programs as defined in AS 18.66.990; (7) paid employees of an organization that provides counseling or treatment to individuals seeking to control their use of drugs or alcohol; (8) members of a child fatality review team established under AS 12.65.015(e) or 12.65.120 or the multidisciplinary child protection team created under AS 47.14.300; (9) juvenile probation officers, juvenile probation office staff, and staff of juvenile detention facilities and juvenile treatment facilities, as those terms are defined in AS 47.12.990 [VOLUNTEERS WHO INTERACT WITH CHILDREN IN A PUBLIC OR PRIVATE SCHOOL FOR MORE THAN FOUR HOURS A WEEK]. * Sec. 39. AS 47.17.022(e) is amended to read: (e) Each school district that provides training under this section shall provide notice to public and private schools located in the school district of the availability of the training [AND INVITE VOLUNTEERS WHO ARE REQUIRED TO REPORT ABUSE OR NEGLECT OF CHILDREN UNDER AS 47.17.020 TO PARTICIPATE IN THE TRAINING AT NO COST TO THE VOLUNTEER]." Renumber the following bill sections accordingly. Page 19, line 14: Delete "and 47.14.990(9)" Insert ", 47.14.990(9); and AS 47.17.020(j)" Page 19, line 30: Delete "Section 41" Insert "Section 42" REPRESENTATIVE KREISS-TOMKINS objected. 6:54:57 PM REPRESENTATIVE EASTMAN advised that the legislature made a mistake in adopting a recent statute "and in that statute you can find the change listed on page 2 of the amendment, at the first line." The legislature put into statute, and basically incorporating for the first time that volunteers under the category of mandatory reporting, makes them criminally liable if they fail to report. He said, even as few as four hours a week which could be a high school football game within which they volunteer. In the event the committee permits this to continue in statute, before the change was made, and now, and in the future, there is nothing that prohibits or makes it hard for volunteers to report issues of which they are concerned, or observe. The criminal liability is (audio difficulties) if dealing with a volunteer, he opined, that is raising the bar to such an extent that volunteers no longer volunteer. He added that since there is nothing that will make it difficult for them to report or be involved in identifying abuse of any sort, he opined that it needs to be made clear that volunteers should be volunteering and this criminal liability should not be added. 6:56:40 PM REPRESENTATIVE IVY SPOHNHOLZ stated that she does not support Amendment 2, it introduces a concept into the bill which is not part of the original bill updating the Division of Juvenile Justice definitions in statute. This amendment would essentially eliminate the mandatory reporting requirement passed in 2015, specifically requiring that volunteers working with children become mandatory reporters. She advised that this is part of the Alaska Safe Children's Act which was an important piece of legislation designed to actually increase safety for children and make clear to the community that it is essential that harm and child abuse is reported. 6:57:46 PM REPRESENTATIVE KREISS-TOMKINS maintained his objection primarily due to the scope of the bill. He said he was sympathetic to the notion of being skeptical about putting volunteers in schools for as little as four hours a week in a position of criminal liability. 6:58:19 PM REPRESENTATIVE KOPP commented that this issue was quite a discussion in 2015, and it was a small meltdown for the legislature. There was a lively discussion between former Senator Lesil McGuire, former Senator Fred Dyson, and several other senators about how to deal with the issue of regular volunteers in the school versus those who are called to simply step in for a volleyball practice, for example, and that some volunteers have never had training in recognizing or reporting abuse. This compromise came out of the Senate Judiciary Standing Committee where language was included that "you are a mandatory reporter if you interact with children in a school for more than four hours a week." He completely philosophically agrees that the legislature wants to minimize liability to volunteers, and he suggested that that could be its own separate bill. 7:00:06 PM REPRESENTATIVE EASTMAN commented that CSHB 351 adds a ninth category of people to the list of mandatory reporters. He offered concern that this list is growing too long and as a new category is being added, Amendment 2 would remove one category. Professionals are added to the mandatory reporting category, which is entirely appropriate, but volunteers are a different matter, he said, and they should not be treated with that same level of criminal liability. 7:00:52 PM A roll call vote was taken. Representative Eastman voted in favor of the adoption of Amendment 2. Representatives Reinbold, Kopp, Stutes, LeDoux, Kreiss-Tomkins, and Claman voted against it. Therefore, Amendment 2 failed to be adopted by a vote of 1- 6. 7:01:33 PM REPRESENTATIVE EASTMAN commented that this legislation was the source of lively discussion in the House Health and Social Services Standing Committee and while parts of the bill are beneficial, he will be a no vote on passing CSHB 351 out of committee. 7:03:05 PM REPRESENTATIVE KREISS-TOMKINS moved to report CSHB 351 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 351(HSS) moved out of the House Judiciary Standing Committee.