Legislature(1997 - 1998)
02/04/1998 01:30 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
HB 7 - VICTIM/JUVENILE OFFENDER MEDIATION
Mr. Joel Loundsbury presented CSHB 7 on behalf of Representative
Brian Porter. He said the bill establishes community dispute
resolution centers (CDRC). These centers would be staffed by
trained volunteer mediators in an effort to bring juvenile
offenders and their victims together to obtain an agreement on a
restitution contract. He said this process is beneficial for both
the offenders and the victims as well as the community. The
offenders can make amends in a participatory situation. Often the
offenders' parents are involved and the process stresses personal
responsibility and fulfillment of the restitution agreement.
Victims benefit by being able to confront the offender with the
personal impacts of their crime and also by tailoring an agreement
to suit their specific losses and needs. Victims also benefit by
having the dispute resolved in a timely manner with their maximum
involvement. He said the community benefits by a timely and
meaningful response to the crime. He stated that volunteers have
direct impact on youth in their community and juveniles who go
through this process commit fewer future crimes.
CHAIRMAN TAYLOR asked about offenders who do not comply with
restitution orders.
MR. LOUNDSBURY assumed they'd go to court but deferred this
question to the department.
CHAIRMAN TAYLOR said the problem with that is time. By the time
offenders are turned over to the probation officer, much time has
likely passed and the case loses precedence to new cases. He
believes in 90 percent of these cases nothing at all may happen to
the offender. He said this system has been tried but because no
pleas were obtained up front it amounted to a suspended prosecution
and there were no "teeth" to it. He said the lack of up-front
adjudication made it difficult finalize cases as offenders can
later request their right for a jury trial and this can drag on for
months.
SENATOR PARNELL asked if the written mediation agreement was
intended to resolve all issues that could be raised in a civil
action or if it was strictly criminal.
MR. LOUNDSBURY said he was unable to answer these questions.
SENATOR ELLIS joined the meting at 1:39.
MR. ROBERT BUTTCANE, a juvenile probation officer temporarily
working with the Division of Family and Youth Services (DFYS),
agreed that the situation Senator Taylor spoke about will occur but
there is a mechanism that allows for an admission of illegal
conduct. He said an offender must enter an admission of illegal
conduct to participate in a diversionary program such as a
community dispute resolution program. Before the offender is
referred to the program, they have entered an admission or plea of
guilt as a condition of beginning mediation. This way if the
offender withdraws from mediation the juvenile system is able to
move the proceeding into court. He says mediation is generally
highly successful.
CHAIRMAN TAYLOR noted the arrival of SENATOR PEARCE at 1:41.
CHAIRMAN TAYLOR asked why we need to create another court system
for kids when we already have one.
MR. BUTTCANE said this is an expansion of an existing diversion
option. He added 70 percent of juveniles arrested now are processed
through this system after being screened by a probation officer. He
explained this system includes community service, dispute
resolution, anti-shoplifting programs, drug and alcohol treatment
programs, anger management courses and a youth court. He expressed
his feeling that this is the most beneficial system available to
the victim, saying it is the quickest way for them to recoup their
losses. The court system is slower and more expensive and this
program can resolve an issue in approximately four to eight weeks
that might take three to six months in court. He added that this
program has taken cases from the Superior Court after a disposition
order has been entered.
SENATOR PARNELL asked again where the teeth are. He admitted he is
used to the civil law context and was looking for the equivalent of
a promissory note or a confession of judgment, something to help in
case the offender fails to pay. He understands things are different
with minors but wants an idea of the interplay between the criminal
and the civil actions.
MR. BUTTCANE mentioned that all civil remedies are still available
to the victim and this would not negate any of those options. When
the juvenile meets with the probation officer, they sign an
admission as well as an agreement to participate in mediation and
cooperate with the terms negotiated with the victim. If the
offender does not follow through with this, the department can
petition them into court and begin the formal adjudication process
with the intent of getting a court order for payment of
restitution. He said Permanent Fund Dividends can be committed to
the victim also.
SENATOR PARNELL asked which juveniles would choose this.
MR. BUTTCANE said most young offenders chose this when given the
option.
CHAIRMAN TAYLOR asked where this program is available and MR.
BUCATEN replied it is currently operating in Fairbanks, Anchorage
and the Mat-Su valley. Each program has a different focus and these
three are the only he is aware of but there may be more.
SENATOR PARNELL inquired if the department had calculated what kind
of savings can be achieved and MR. BUCATEN replied it has not been
calculated. He said this is more of a cost avoidance issue and the
types of cases that go to mediation would not likely lead to
correctional detention, only a lengthy expensive use of the court
system. He believes, more importantly, this is a way to keep kids
out of the formal system while still holding them accountable and
restoring the victim.
SENATOR PARNELL asked what the funding source for this is and MR.
BUTTCANE replied that the state receives pass-through federal
funding through the delinquency prevention budget request unit
(bru). He said the facilities in Mat-Su and Anchorage have received
some of this money through DFYS.
SENATOR PARNELL explained he was asking finance-related questions
since the bill was waived through House Finance. He asked if the
witness anticipated expansion of this type of program.
MR. BUTTCANE replied yes, as he thinks it is an effective
intervention and prevention tool and would like to see more pass-
through federal dollars.
MS. KATHLEEN HARGRAVES, a former youth services worker, managed a
program like this in Colorado and reported it works well. Her
program targeted first time offenders and the early intervention
led to a very low recidivism rate. She explains this type of
program personalizes crime and forces the offender to face the
consequences and see the effects of their crime. It shows them the
victim is a real person and in her experience this was very
effective. She said she believed the offender admitted guilt during
the process, allowing the complaint to be sent back to the court
quickly if resolution did not occur. She characterized this as a
"gatekeeper" and thinks it will work and free up court time and
resources as well as correctional beds.
MS. ANGELA SALERNO, representing the National Association of Social
Workers, called this program a proactive, innovative, balanced way
to enhance public safety and increase accountability of the
offenders. She cited studies that conclude this type of program
reduced recidivism in juvenile offenders. She said there are more
than 200 programs like this throughout the U.S. and Canada and they
are a low cost, community based and successful alternative to
costly incarceration.
MS. LINDA JOHNSON, representing the Anchorage Youth Court, said
youth courts are another type of diversionary program. She
specifically addressed section three of the bill relating to
immunity after saying her program has recovered 16,000 dollars in
restitution for victims in the past two years. She reported they
have processed 900 cases in two years and said only 13 percent of
those juveniles go on to reofffend. She said Anchorage youth court
is one of many around the state; there are others in Fairbanks,
Mat-Su, Kenai, Homer, Kodiak and one is being set up in Nome. She
said youth courts can take a percentage of case and relieve the
burden on DFYS, allowing them to focus on serious and repeat
offenders. She professed that youth courts are run on a shoestring
budget and to defend themselves against a lawsuit would decimate
them. Anchorage youth court believes immunity from lawsuits would
help tremendously and allow them to attract more volunteers. She
stated that some community business leaders had volunteered to act
as mentors for some defendants and she would like them covered by
the immunity.
MS. JOHNSON said Anchorage youth court uses CDRC services and they
have found most cases can be negotiated within six weeks and
referred back to DFYS with no further action necessary.
CHAIRMAN TAYLOR asked what the Anchorage youth court budget is. MS.
JOHNSON replied it is $250,000 funded by the municipality, federal
grants and some private donations. She said this cover their 500
cases a year.
CHAIRMAN TAYLOR asked if she knew what the budgets of the other
youth courts were? MS. JOHNSON said they are very small but also
take fewer cases.
CHAIRMAN TAYLOR asked if anyone has ever sued a youth court and MS.
JOHNSON said she was not sure. CHAIRMAN TAYLOR said this is typical
of bills received from the house; bills that ask for immunity from
something no one has ever been sued for.
MS. JOHNSON said they could do more in the community if their
volunteers were protected. CHAIRMAN TAYLOR asked how far she
proposed to extend the immunity and she replied to cover
volunteers. CHAIRMAN TAYLOR gave an example in which a volunteer
accidentally runs someone over with a truck and asked if the state
be immune. MS. JOHNSON said that would be decided in court but
CHAIRMAN TAYLOR agrued it would not go to court due to the
immunity. They discussed other examples in order to define the
limits of this requested immunity. MS. JOHNSON said her main
concern was people hitting one another and the fact that they have
no budget to fight court cases.
CHAIRMAN TAYLOR said this provision apparently immunizes the
actions of youthful offenders sent out to work on restitution. MS.
JOHNSON said in fact it only applies to official acts performed in
their capacity as an agent of the youth court. CHAIRMAN TAYLOR said
he was trying to determine the risk she wanted immunity from and
she repeated her prior concern regarding someone hitting someone.
CHAIRMAN TAYLOR characterized hitting someone as a willful or
wanton act and MS. JOHNSON agreed it would be on the part of a
defendant but not on the part of a member of the board of directors
or an employee of the youth court. She said this is why she wanted
immunity.
CHAIRMAN TAYLOR said the youth court should not be responsible for
the actions of a person in a situation they have been placed in by
the court? MS. JOHNSON said no, so long as the court accepted the
case in good faith.
CHAIRMAN TAYLOR replied that a million things happen in good faith
every day; they are called accidents and people are injured by
them. He said personally he thinks this immunity goes too far but
would like to hear if any youth court had any experience with
liability. MS. JOHNSON said it would only take one time and there
will be no more youth court, so they are trying to prevent it.
CHAIRMAN TAYLOR replied that maybe people won't do something so
stupid it will result in injury, whether it is done in good faith
or not. CHAIRMAN TAYLOR said this is why people carry insurance, to
recompense victims of accidents.
MS. JOHNSON replied that Anchorage youth court does carry
insurance.
CHAIRMAN TAYLOR asked what the cost is but MS. JOHNSON was not
sure. CHAIRMAN TAYLOR asked if they would need insurance if granted
this immunity and MS. JOHNSON said she did not think the immunity
would cover someone falling and breaking a leg on their premises.
She said they also would need to continue carry auto and Directors
and Officers insurance. CHAIRMAN TAYLOR said this Directors and
Officers insurance was what he wanted to know about and would
appreciate knowing what the cost is.
MR. BLAIR McCUNE, Deputy Director of the Public Defender Agency,
said the agency favors the bill. In his experience, this process
works in Anchorage. He referred to section two of the bill that
allows the diversion to this type of program before a plea is
entered and pointed out that in section three the diversion can
also be pursued after a plea is entered and the child has been
adjudicated a delinquent. He said this gives the court the
authority to put some teeth into the process. He stated that this
type of program has informally existed as far back as he has been
in practice through probation officers adjusting cases. He believes
the youth court formalizes this process in a cost-effective manner.
He added that there is a time limit of six months duration for any
diversion program and an offender must waive the right to a speedy
trial. Since there is no speedy trial clock ticking, if the
diversion program is not successful the child can be brought back
to court with no time lost.
MR. McCUNE said the biggest consideration in this type of process
is screening. He said CDRC's are cautious and screen closely due to
the fact that they want the victims to be satisfied with the
process.
CHAIRMAN TAYLOR said probation officers decide whether or not to
file a petition in response to an incident and this is in itself a
huge decision. He added multiple offenses can occur before an
officer even files a petition. After a petition is filed and a
preliminary hearing is held diversionary programs can be employed.
CHAIRMAN TAYLOR asked if, in most instances, they opt to stop the
clock in this way and get the offender into a suitable diversionary
program.
MR. McCUNE agreed that is how it happens and he finds it
successful. He added this works better with kids than adults and
adds to the resources the juvenile probation officers have. He said
it is a judgment call and even though the speedy trial provision is
waived if the case later goes to court there may be witness
problems and other difficulties.
TAPE 98-5
SIDE B
Number 001
CHAIRMAN TAYLOR asked if the process is akin to triage. He wanted
to know if overall more kids may sit down face to face with an
authority figure and be reached through this method.
MR. McCUNE said that is a tough question. He said it may be a "net-
widening" kind of thing, but his office is seeing a big increase in
delinquency adjudications, indicating more serious crime is being
committed by juvenile offenders.
CHAIRMAN TAYLOR restated the fact that anything that gets a kid in
contact with an authority who will follow up on the offense is
beneficial. He expressed frustration with additional systems
overlaid onto the original system that no longer works. He would
like to find a way to clean up the existing system rather than
create something new. He said this idea hit him when the people of
Ketchikan asked him to create a second alternative school, an
alternative to the alternative school. CHAIRMAN TAYLOR expressed
further frustration at his experience of seeing young people show
up in court at age 16 for a serious crime when they have multiple
juvenile offenses that were never dealt with.
MR. BOB KNIGHT from Fairbanks spoke in favor of the Victim Offender
Mediation Programs (VOMP). He also favored protection from
liability for those participating in the programs. Like government
workers and legislators, these people need protection when doing
their jobs. They are not protected from stupidity or accidents. He
believes this protection is necessary and would allow for the
expansion of these useful programs. He applauded the Anchorage
youth court, saying he is impressed with the concept as well as the
commitment of those involved. He himself has been involved in the
Anchorage youth court for 36 years, utilizing skills he originally
learned in the marine corps. He listed his credentials, cited the
zero fiscal note and urged all members of the committee and the
legislature to cosponsor this bill. He called mediation a
bipartisan idea whose time has come. He said this overlay is
important as the old system is not working and this process is an
historically successful means of dispute resolution. He cited
established criteria for effective mediation: that it is voluntary
and confidential. He said it is effective due to the fact it is
flexible and communicative and humanizes crimes for the
perpetrators. It is a low cost civil process that allows speedy
closure for the victims and saves time and money for the
government. He said volunteers are trained as professional
neutrals, not advocates and could be effectively employed here as
they are by the federal government and other groups. He concluded
by urging the personal involvement of all committee members in this
process and requesting this bill pass out of committee.
CHAIRMAN TAYLOR asked why the words willful or wanton misconduct
were used instead of negligent or grossly negligent or reckless.
MR. KNIGHT replied he was not involved in the drafting but would
comment personally.
CHAIRMAN TAYLOR said he had no problem with a level of immunity for
those acting in a quasi-judicial manner of rendering decisions but
thought it might be limited to discretion, not extend to cover bad
acts. MR. KNIGHT agreed it could be modified to reflect
discretionary immunity only. He thinks the present wording is just
the flip side of this.
CHAIRMAN TAYLOR agreed and said this was probably the intent. He is
uncomfortable with how the present broad wording covers everyone.
MR. KNIGHT replied that the question is if it should be that broad
in order to cover possible tort actions against the board of
directors. He believes it is intended to protect the whole system
from cases in which accidents happen to volunteers who are carrying
out legitimate activities.
CHAIRMAN TAYLOR made the point that standards of negligence should
be applied. MR. KNIGHT agreed that would be appropriate.
Number 421
SENATOR PARNELL said his question was regarding the scope of
conduct. He believes a panel rendering a decision on a case should
enjoy a type of judicial immunity. He asked if the volunteers are
acting on behalf of defendants and being granted immunity? He
wondered exactly who would be granted immunity from what type of
acts. He thinks the language is so broad it extends beyond
rendering decisions and this concerns him.
MR. KNIGHT replied that there are two aspects of this, the judicial
aspect relating to the youth court and the work aspect. He compared
the work side to a combination of executive and judicial branch
activities including the set up and supervision of programs. He
asked then if they should have immunity comparable to that of state
employees. He believed this was the intent.
CHAIRMAN TAYLOR gave an example of an accident happening while a
work crew, working in good faith, incurred some type of accident.
CHAIRMAN TAYLOR assured MR. KNIGHT that that instance would not be
covered under discretionary immunity, it would be subject to civil
liability. MR. KNIGHT agreed that it is outside the scope of
discretionary liability. He asked how the executive branch deals
with this type of liability. CHAIRMAN TAYLOR replied that it is
called risk management and the state self-insures against it so
they can hire a bunch of attorneys and if necessary even pay
judgments. He added the legislature appropriates money for this
every year but does not grant themselves total immunity.
MR. KNIGHT asked if an appropriation should be made for this
coverage or not and CHAIRMAN TAYLOR advised him to please think
about it and get back to them.
MS. SHARON STURGES, Director of the CDRC, said her center carries
both auto and general liability insurance. She thinks this would
cover things if the standards of negligence were applied in
relation to an accident. She perceived the type of immunity sought
in this bill would be for a discretionary act performed by the
board or mediators in the course of their service. She said in
section four of the bill there are criteria that need to be adopted
by the board for the program to be recognized under statute. She
believes the concern is that even if screening is rigorous and
strict there may be a problem. She thinks this would apply to
policy makers and those who implement policy.
MS. STURGES said these programs provide an essential service for
the victim with no money from the state. She said her program
recovered $20,000 in restitution over the last two years and have
a 90 percent compliance rate for restitution agreements. She
restated previous arguments that these programs provide a valuable
service, relieve an overburdened system, and use far fewer
resources. She said the release form offenders sign after a
mediation agreement provides teeth to use in case of noncompliance.
This release allows the contract to be sent to the court. MS.
STURGES sees this as another service to the victim, relieving them
from the necessity of filing a civil action. It is part of the
court record and can be enforced. This was recently adopted and
provides a quick remedy for the victim and a good record for the
probation officer. She says the center keeps in close contact with
probation officers in both formal and informal cases. She concluded
with statistics showing their non-recidivism rate to be 98 percent
compared to the general rate of 50 percent or so.
CHAIRMAN TAYLOR understood the statistics but commented that they
are generated in large part by the screening they are doing. He
said they are not taking "the bad ones" and that might change those
numbers.
MS. STURGES replied that 25 percent of the case load are probation
level cases and CHAIRMAN TAYLOR added that these cases are also
screened by the probation officers before they ever get to the
program. MS. STURGES agreed but said they have only rejected two
cases and their criteria are simply acceptance of responsibility
and willingness to negotiate.
MR. PATRICK CUNNINGHAM, professor at the University of Alaska
Anchorage and member of the McLaughlin Youth Center Advisory Board,
spoke in support of the legislation. He also said this process is
a service to victims and a low cost, community based alternative.
He said they capture funding from the municipality of Anchorage,
community businesses, DFYS and private donations. They also rely
heavily on volunteers. He said there are many similar programs in
the U.S. and Canada and they produce durable contracts. He says
they are successful in monitoring offenders, empowering victims and
fostering community partnerships that afford all parties involved
a high degree of satisfaction. He urged the committee to move the
bill.
MS. SUZANNE DiPIETRO, a CDRC board member and volunteer mediator
made herself available for questions and CHAIRMAN TAYLOR asked if
the committee could be provided a copy of the operating budget and
funding sources for the CDRC and youth court.
Number 132
SENATOR PARNELL expressed continued concern about the immunity
issue. He believes these programs could be very effective but think
they need a closer look. He also thought more scrutiny of the zero
fiscal note was in order but said that could be left to the finance
committee. He thinks that pass through funds should be reflected in
the fiscal note.
CHAIRMAN TAYLOR agreed with those concerns and added he'd like
further information regarding the interplay between the existing
agencies. He likes casting the net wider and delivering the
quickest, broadest response. He said the committee will work on the
bill and await further information.
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