Legislature(1993 - 1994)
02/17/1993 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATOR TAYLOR introduced SB 54 (OFFENSES BY JUVENILE OFFENDERS) and invited the prime sponsor, SENATOR HALFORD, to testify. SENATOR HALFORD gave a short overview on the bill, referred to some amendments from SENATOR DONLEY, and asked his aide, JOHN SHEPHERD, to review the bill for committee. MR. SHEPHERD explained he would present a review written by the drafter, JACK CHENOWETH, Legislative Counsel, and he summarized the four areas of the report, beginning with "Automatic Trial of Juveniles as Adults for Certain Felony Offenses." The remainder of the segments are "Detention and Incarceration," "Records," and "Restitution." MR. SHEPHERD began by reviewing the "waiver of jurisdiction," which under current law would allow the court to prosecute the child as an adult if the offense is deemed serious enough. SB 54 mandates that juvenile offenders from 16 to 18 years of age be tried as adults under the following two conditions, as listed in Section 3: A. if charged with an unclassified or class A felony; or B. if charged with a felony class "crime against a person" and the minor has been either 1. previously adjudicated as a delinquent or 2. convicted as an adult, for a felony class "crime against a person" in Alaska or any other jurisdiction. MR. SHEPHERD referred the committee members to the list of definitions, as defined under AS 33.30.901, and continued to explain the remainder of the provisions in Section 3. SENATOR HALFORD asked MR. SHEPHERD to repeat, "In the immediate previous draft to this one, there was a section that said, 'When the minor says ... I was not previously convicted, or adjudicated delinquent in another jurisdiction for a felony class crime against a person,' the state then has the burden of showing that, in fact it did happen. In the immediate previous draft, there was a standard mentioned. The state had to do it by a preponderance of evidence - and that has been lost." MR. SHEPHERD suggested the committee might, or not, want to reinstate the standard. Number 108 MR. SHEPHERD quoted the next two paragraphs, which would establish, "the state is entirely free to employ the currently existing procedures for closing a juvenile's case in order to prosecuted him as an adult for lesser offenses." Section 6, of the same theme states, "... if a minor is not convicted of the felony charge that required he be tried as an adult, but is only convicted for lesser offenses, then the convictions will be treated as juvenile adjudications." This passage would allow that, "... within five days of his conviction as a juvenile delinquent, the state has the right to file a petition for a waiver to convict the minor as an adult for these lesser offenses." MR. SHEPHERD gave an example to explain the provisions of these sections. SENATOR HALFORD clarified the provisions with MR. SHEPHERD, who also explained the provisions were basically meant for the incorrigible child, and represented the philosophy of the bill. Number 148 SENATOR DONLEY restated the previous testimony, and MR. SHEPHERD said he was correct. MR. SHEPHERD proceeded to the second area of detention and incarceration, in which he read the provisions in current law as related to the Department of Law and the Department of Health and Social Services in the Division of Family and Youth Services. He explained either way, minors are required to be kept separate from adults. Number 158 MR. SHEPHERD said, "SB 54 eliminates this ambiguity by mandating the minors either charged or convicted as adults be placed in the custody of the Department of Corrections." He explained this would be done in Section 1 which would, "amend the definition of 'prisoner' within the custody of the Department of Corrections to include a juvenile charged, prosecuted, or convicted as an adult." MR. SHEPHERD explained Section 8 would amend the current law concerning the detention of minors to state that a juvenile held in jail under the custody of the DOC need not be "held in custody in a room or other place apart and separate from adults." SENATOR HALFORD clarified the only juveniles under the Department of Corrections would be those convicted as adults. MR. SHEPHERD explained it as being a "negative emancipation" once a minor is convicted as an adult. SENATOR DONLEY referred to previous legislation that elicited a large amount of testimony on the issue under discussion, as to whether the minors would be safe among the adults. He said the only difficulty that occurred between minors, who had been waived, was assaults by the minors against other minors, but the minors had not been victims of adults. MR. SHEPHERD said MR. HEINZ from the Division of Family & Youth Services would be discussing the rehabilitation aspects of this testimony. Number 200 MR. SHEPHERD presented the third major area of the bill, Records, and reviewed the provisions of Section 4, which provides the court may not seal the records of a criminal proceeding involving a minor if: "1. the minor has not yet fulfilled the orders of the court connected with their adjudication or conviction, 2. the minor was convicted as an adult under AS 47.10.010(e), created in SB 54 for a. an unclassified or class A felony and properly joined crimes, or b. for a second felony crime against a person, or 3. the minor was adjudicated delinquent or convicted as an adult for a felony class crime against a person and had been previously adjudicated delinquent or convicted as an adult for a felony class crime against a person." SENATOR TAYLOR asked if this might set up a situation where a delinquent adjudicated twice, would, on the second adjudication, becomes an adult. They discussed the questions before MR. SHEPHERD continued the explanation of SB 54. MR. SHEPHERD said the provisions of Section 7 would allow the victims of a property crime against a person committed by a minor to inspect the official record of the minor related to that crime in order to use the information in support of civil action. Number 237 MR. SHEPHERD quoted from the fourth area on Restitution, "Courts are not currently required to force juveniles to pay restitution for property offenses or for crimes against a person. It is also virtually impossible to sue a juvenile in civil court for damages resulting from his crimes because his criminal record is kept confidential." He said Section 7, as previously mentioned, would allow permission. MR. SHEPHERD said Section 5 would require the court to order a minor to pay restitution to the benefit of the victim if the minor's offense is the basis of a delinquency adjudication. In Section 2, it allows for the entirety, rather than the present 40%, of a juvenile offender's permanent fund dividend, as well as the dividends of parents and legal guardians, be used to pay restitution or civil damages resulting from the juvenile's criminal activity. SENATOR DONLEY questioned the provision, and MR. SHEPHERD said the $2000 cap was unchanged. There was some discussion on this provision, and SENATOR TAYLOR suggested there would be no incentive for the juvenile or parents to file for the permanent fund. He suggested the sponsor think of this. SENATOR HALFORD thought the juvenile would prefer to have the permanent funds executed upon other things such as cars, and he explained why it would be wise for the juvenile to apply for their dividend. SENATOR TAYLOR suggested something might be included to allow the victim to apply for the permanent fund dividend, if the juvenile did not. There was not a general agreement on this. MR. SHEPHERD indicated he was finished with the overview of SB 54. Number 289 SENATOR DONLEY expressed concern about the status of the run-away laws in relation to taking the dividend of a parent, who is not in control of a juvenile. SENATOR HALFORD described how the provision was reached and how it could be improved to increase the cap to $4000, as well as increase the ability of the parent to control their child. He was opposed to the House level of $50,000, unless there was a way to enforce some kind of standards on the person costing the victim that amount. SENATOR TAYLOR excused MR. SHEPHERD, and invited MARGO KNUTH, from the Criminal Division of the Department of Law, to testify. Number 328 MS. KNUTH said the Administration anticipates a Governor's juvenile waiver bill being filed, and accordingly, the Administration supports the concept of juvenile waiver. She said there was room for discussion on how broad a waiver law should be enacted. She thought the Governor's bill would be narrower than SB 54 and only apply to offenses of murder in the first degree, attempted murder in the first degree, and murder in the second degree. MS. KNUTH reviewed some problems with the present juvenile waiver, such as making the waiver, required by statute, show the juvenile is unamenable to treatment. Presently, without a track record of prior efforts to rehabilitate the person, it is difficult to say there is no way this person is unamenable. MS. KNUTH said she had worked with the sponsor, and she felt the bill, SB 54, does what it should do. She noted a couple of technical matters. On page 2, line 16, in a reference to a "minor's malicious or wilful injury ...," she noted "wilful" is not one of the mental states defined in our statutes, and suggested it might be changed to either "intentional" or "knowingly." MS. KNUTH suggested a technical change in Section 6, page 6, in reference to AS 47.10.080(o), where the state could still file this petition under the traditional juvenile waiver laws to try to make the showing of un-amenability. SENATOR TAYLOR asked if she could make the change in committee, and MS. KNUTH said she would. Number 383 SENATOR DONLEY said the clause in Section 6 triggered his question on a motion to waive a child to adult court, and he expressed concern about the problems with the recent Court of Appeals decision stating the juvenile can not be compelled to take the psychiatric analysis the court needs to make a rational decision. He made a suggestion for a change in presumption. SENATOR TAYLOR clarified a juvenile would only have to refuse to cooperate, thus denying the state evidence needed to hear the waiver. SENATOR HALFORD discussed provisions for 14 to 16 year old juvenile, and SENATOR DONLEY agreed with his conclusions. In answer to a question from SENATOR LITTLE, SENATOR HALFORD explained the presumption about whether a minor is amenable to treatment, and he reviewed the old the standard under which a minor could be prosecuted as an adult. SENATOR LITTLE clarified the change with the burden of proof falling on the individual. MS. KNUTH said there would also have to be an amendment to the court rules, and SENATOR TAYLOR asked how the Equal Protection arguments could be addressed. MS. KNUTH said it was an issue yet to be solved, and both she and SENATOR DONLEY agreed the burden shifted for a whole class of people - juveniles. This elicited a discussion of the steps involved in the issue. Number 439 MS. KNUTH said the Department of Corrections and the Department of Health and Social Services have some concerns about placements of the juvenile offenders, back and forth as juveniles and adults, and have been working to address the problem. She suggested making the automatic waiver provision for a narrow class of offenses, and if a juvenile was waived to an adult status, it would be for the duration of the case. SENATOR HALFORD asked how they could beat the equal protection argument, and he outlined a manslaughter scenario. MS. KNUTH indicated the juvenile should be narrowly indited to hold the juvenile on that offense, but she suggested someone from the Court System should answer his questions. SENATOR HALFORD said he felt uncomfortable with her argument, and he described a deferential in charges. He was still concerned about equal protection and the constitution. Number 470 SENATOR DONLEY described the strong protection clause in the constitution, and a judiciary that tends to enforce it. SENATOR HALFORD said the conviction requirement was a standard for equal protection, but he outlined where the problems began with the conviction of a lesser offense. He discussed the equal protection criteria with SENATOR TAYLOR. SENATOR DONLEY thought the public safety threat overrides a pure equal protection argument. MS. KNUTH agreed with SENATOR DONLEY and suggested the indictment follow a finding of fact. SENATOR TAYLOR didn't agree and described his ideas on the problems as discussed. Number 514 SENATOR HALFORD suggested fixing some of the "little things" and take up the amendments by SENATOR DONLEY. First, SENATOR HALFORD moved to adopt 8-LS0384\D, a draft dated 2/16/93, as a working draft version of a potential committee substitute for SENATE BILL 54. Without objections, so ordered. SENATOR HALFORD referred to page 2 and the term, wilful. He said the two potential substitutes were "intentional" or "knowing." There was some discussion among the committee members on these words. MS. KNUTH explained intoxication is a defense to "intentional" and not to "knowing." She suggested dropping the "or wilful" and leave it "malicious," but she thought the law would imply a knowing standard. SENATOR HALFORD moved to delete the word "wilful" and insert the word "knowing." After some discussion, the motion passed. SENATOR HALFORD suggested a change in the burden of proof on page 3, line 17, and read the section dealing with a preponderance of evidence. There was some discussion on this language with MS. KNUTH, and the language was amended to insert on line 17, after the word true, a new sentence, "At a hearing on a petition under this subsection, the state bears the burden of proving, by a preponderance of the evidence, that the allegations of a sworn statement under (g) of this section are true." SENATOR DONLEY moved the motion. Without objections, so ordered. SENATOR LITTLE clarified this was a separate amendment and different from the previous discussion. TAPE 93-12, SIDE B Number 001 SENATOR HALFORD said the new amendment incorporates the provisions, on which he had previously worked with SENATOR DONLEY, concerning 14 to 16 year old juveniles. SENATOR TAYLOR stressed the amendment was involved and complex. SENATOR LITTLE asked for further clarification, and SENATOR DONLEY explained. (The explanation has been quoted from the actual amendment.) Page 2, line 26 through page 3, line 1: Delete all material and insert: "does not apply when a minor (1) is 16 years of age and older and is charged with (A) an unclassified felony or a class A felony; or (B) a crime against a person that is a felony other than an unclassified felony or a class A felony, and the minor has been previously adjudicated as a delinquent or convicted as an adult, in this or another jurisdiction, as a result of an offense that is a crime against a person and was a felony under the laws of this state, or that in another jurisdiction is an offense with similar elements and would be a felony if charged under the laws of this state; or (2) is 14 years of age and older but has not reached 16 years of age and is charged with (A) the offense of murder under AS 11.41.100 - 11.41.110 or an attempt or solicitation to commit murder under AS 11.41.100 - 11.41.110; (B) an unclassified or a class A felony, and the minor has been previously adjudicated as a delinquent in this or another jurisdiction is an offense with similar elements and would be a felony if charged under the laws of this state; (C) a felony of any degree, and the minor has been previously prosecuted and convicted as an adult of a felony in this state, or of an offense in another jurisdiction with similar elements that would be a felony if charged under the laws of this state." SENATOR DONLEY explained to SENATOR LITTLE the importance of the amendment based on the statistics of juvenile violence in the age category, but due to a recent court decision, juveniles may not be compelled to take a psychiatric examination. This makes it difficult for the state to present a case, by a preponderance of evidence, to meet their burden of proving a juvenile is not amenable to treatment by age 20. SENATOR DONLEY further explained there were fewer waivers because of the new Court of Appeals ruling, and put an unfair burden on the judge. Number 062 SENATOR TAYLOR again raised the issue of equal protection, and SENATOR DONLEY explained how using the severability clause would not violate equal protection. MS. KNUTH said the discussion of the amendment was tracking all of the points that have been discussed. SENATOR DONLEY said, if the committee adopted the amendment, he would work with MS. KNUTH to inject additional safeguards to help meet the equal protection criteria. Number 090 SENATOR HALFORD moved to adopt the amendment numbered 8- LSO384\D.1 drafted by CHENOWETH, dated 2/17/93. Without objections, so ordered. MR. LEAF, aide to SENATOR TAYLOR, brought up a question on page 6, Section 6, which was clarified by MS. KNUTH in amending the sentence to include, "and if the motion is granted." She explained the amendment. SENATOR HALFORD moved the amendment by MS. KNUTH on page 6, Section 6, line 24, which would delete the (.) at the end of the sentence, and insert "and if the motion is granted." Without objections, so ordered. SENATOR TAYLOR opened the meeting to testimony, and called on RANDALL HEINZ from the Division of Family and Youth Services, to testify. MR. HEINZ said he had attended to answer questions and to present some concerns from the department on the housing, as to when children under the bill would be transferred to adult Department of Corrections. He hadn't analyzed how many children would be affected. SENATOR LITTLE asked how MR. HEINZ thought the changes would affect the costs. MR. RANDALL said they found in the first age group of 16 years and up, there were approximately 60 juveniles in that category, but the addition of 13 and 14 year old's would require more analysis to come up with a real cost of the impact. He described how they might be able to issue a positive fiscal note. SENATOR LITTLE clarified the present situation and asked about the potential of having 60 additional minor prisoners in our system. MR. RANDALL explained there were 60 children referred to Youth and Family Services (DFYS) from the police agencies on unclassified or classified class A felonies for fiscal year 1992. He said they were using those juveniles to judge the impact of the legislation. Number 120 SENATOR HALFORD said those children would stay where they are, and SENATOR LITTLE asked if that would justify a zero fiscal note from the department. MR. RANDALL said the number of juveniles based on the 1992 numbers was relatively small, but the changes in the age grouping, and offenses, has made the group grow. SENATOR LITTLE was interested in seeing those finished figures. SENATOR TAYLOR expressed concern about the number of waivers, and MR. RANDALL explained in fiscal 1992 they requested 10 kids to be waived into the adult system, and nine of the waivers were granted. He also explained this was all juveniles, not just those who would fall under the bill. SENATOR TAYLOR asked for his estimation on a possible number of juveniles under SB 54, and MR. RANDALL explained it would be the charge at arrest which would determine where the case would be handled. In their discussion, MR. RANDALL said there would have been 60 kids for FY92. SENATOR HALFORD questioned in to which category the 60 kids would fit. MR. RANDALL explained, in FY92, there were 60 kids referred to DFYS by police agencies for unclassified or class A felonies that were 16 years old or older - in new referrals. SENATOR LITTLE discussed with MR. RANDALL how he personally felt about the bill, and MR. RANDALL thought children of 13 and 14 years old were better candidates for rehabilitation, but the older offenders were less likely to be amenable to treatment. He said his department still needed to analyze the facts before coming up with a position. Number 180 SENATOR TAYLOR asked RICK BARRIER, an efficiency analyst for the Department of Corrections, for his comments. MR. BARRIER explained he had worked on the bill, but at this point he thought the impact of the legislation was unclear. He said the department had submitted a zero fiscal note on the bill without any certainty it would be accurate, but if the proposed statistics were accurate, it would cost more money. He thought part of the cost would be reflected in the increased length of terms, and he indicated more work was needed with DFYS. SENATOR DONLEY suggested in their analysis it would be appropriate to consider how many of the juveniles, who commit these serious crimes, fail to be waived to adult court, and released when they are 20 years old, commit the same crime again and return to jail in their 20's. MR. BARRIER said they could include a factor of recidivism, but it wouldn't take many of the unclassified and class A felonies to impact their systems v. to spend less money. He agreed with DFYS they would like to see the waived juvenile remain in adult status. SENATOR TAYLOR asked MR. BARRIER to comment on the necessity for segregating the younger offenders, and MR. BARRIER reported his department had a policy of segregating juveniles entirely from the adult population. Juveniles adjudicated as adults are also segregated to the extent of being maintained in separate cells until the age of 18. He thought the new legislation would bring more flexibility. SENATOR LITTLE wanted to know how many person years would be added to the Department of Corrections if the bill passed, and MR. BARRIER said they planned to try to get that statistic. SENATOR TAYLOR thanked the participants and entertained a motion to move the bill from committee. SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 54(JUD) from committee with individual recommendations. There was one objection, and the bill passed on a 3 to 1 vote.
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