Legislature(1997 - 1998)
02/27/1998 01:45 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
February 27, 1998
1:45 P.M.
TAPE HFC 98 - 46, Side 1
TAPE HFC 98 - 46, Side 2
CALL TO ORDER
Co-Chair Gene Therriault called the House Finance Committee
meeting to order at 1:45 p.m.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative Davies Representative Martin
Representative Foster Representative Grussendorf
Representatives Davis, Mulder and Moses were absent from the
meeting.
ALSO PRESENT
Margot Knuth, Assistant Attorney General, Department of Law;
Barbara Brink, Director, Public Defender Agency; Brant
McGee, Public Advocate, Office of Public Advocacy.
SUMMARY
HB 16 "An Act relating to delinquent minors, to the
taking of action based on the alleged criminal
misconduct of certain minors, to the services to
be provided to the victims of criminal misconduct
of minors, and to agency records involving minors
alleged to be delinquent based on their criminal
misconduct; and amending Rule 19 and repealing
Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
HB 16 was HELD in Committee for further
consideration.
HOUSE BILL NO. 16
"An Act relating to delinquent minors, to the taking of
action based on the alleged criminal misconduct of
certain minors, to the services to be provided to the
victims of criminal misconduct of minors, and to agency
records involving minors alleged to be delinquent based
on their criminal misconduct; and amending Rule 19 and
repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
Representative Kelly, Sponsor, testified in support of HB
16. He noted that the legislation is the result of the 1995
Governor's Task Force on Juvenile Crime. House Bill 16:
* Provides for dual sentencing of serious offenders;
* Allows municipalities to seek civil court remedy
for juveniles who violate municipal ordinances;
* Allows the Department of Health and Social
Services to draw upon the available resources of
local communities or other entities who desire to
get involved in juvenile crime issues; and
* Reduces the burden on victims, by allowing police
officers to report their input at preliminary
hearings.
MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW
testified in support of the legislation. She is a
representative of the Governor's Children Cabinet. She
emphasized that the legislation allows local governments and
communities to respond to low level juvenile offenses. She
maintained that a response to all situations is more
important than the degree of sanction an offense carries. A
small response to a small offense can be extremely effective
in changing a juvenile's course of conduct. The State's
ability to intervene in less serious offenses has been
reduced due to the allocation of resources. She maintained
that there is a whole level of smalltime offenses that have
not been getting responses. She emphasized that it is
important to closely monitor juveniles that are at risk of
becoming serious chronic offenders. The legislation allows
dual sentencing of juveniles that would be sentenced under
automatic waiver if the child were 16 or older and juveniles
in cases where the offense is not serious enough to trigger
an automatic waiver. The juvenile would receive a sentence
comprised of the appropriate juvenile dispensation and a
sentence in adult court. This makes the juvenile
responsible for avoiding the adult consequence. The child
would be motivated to comply with the court's order, which
could include treatment, restitution, and good behavior. If
the child comes before the court during the period of
probation the court may impose the adult sentence. The
adult sentence would include some period of incarceration.
All of the child's due process rights would be protected.
The child would have the right of indictment by grand jury,
the right to a speedy trial, the right to be found guilty
beyond a reasonable doubt, and the right to confront
witness. Juvenile proceedings are more protective then
adult proceedings. The minor has a right to a 12-person
jury trial on misdemeanor offenses. Adults do not have this
right. There are no constitutional problems with the
provisions of the legislation. She estimated that two-
thirds to three-quarters of the offenders would comply with
all of the court orders. Those that do not would be at risk
of becoming a chronic serious offender.
Ms. Knuth reviewed provisions of the legislation. She noted
that the legislation makes changes to the delinquency
proceedings. The legislation also provides for adoption of
a uniform rendition article. The presentation of hearsay
would be allowed at temporary detention hearings in juvenile
cases. This would be similar to adult grand jury
proceedings. Juvenile records would be shared with federal
law enforcement agencies. The Department of Health and
Social Services would provide reports to victims or their
insurance companies. A couple of delinquency rules are
being repelled and moved into statute.
In response to a question by Representative Grussendorf, Ms.
Knuth clarified that a police officer would be allowed to
relate statements by witnesses at the temporary detention
hearing.
In response to a question by Representative Davies, Ms.
Knuth explained that adults have the right to indictment by
a grand jury. This is often waived for a preliminary
hearing. If a juvenile is going to be subjected to the dual
sentencing provision, his or her case must be presented to a
grand jury. Adults have the right to pretrial bail.
Juveniles have the right to ask the judge for the least
restrictive placement. At the time of trial, they would
have the right to subpoena witnesses, confront witnesses,
and be found guilty beyond a reasonable doubt. Juveniles
always have the right to a 12-person jury. Adults only have
this right in felony cases.
Ms. Knuth observed that the legislation directs the judge to
look at Title 12 criminal sentencing procedures when
formulating the adult sentence. Juvenile sentencing goals
in Title 47 are different. The judge will perform two
functions. Adult proceedings have presumptive sentencing
for certain offenses that do not exist for juveniles.
Section 18 establishes when a juvenile could have the adult
sentence imposed. The juvenile could only be subjected to
the adult sentence if the conditions of section 18 were met.
The juvenile would face the adult sentence if a subsequent
felony offense were committed. They would also face the
adult sentence if they did not comply with the conditions of
a restitution order. Judges must take into consider the
juvenile's circumstances when creating a restitution order.
If the juvenile fails to satisfactorily complete
rehabilitation programs or if they escape from a juvenile
correction facility they would also come before the court
for adult sentencing.
In response to a question by Co-Chair Therriault, Ms. Knuth
clarified that the legislation would affect 13 - 15 year
olds who are too young to be subjected to an automatic
waiver and older juveniles that are not charged with a
serious enough offense to trigger an automatic waiver. She
suggested consideration of dual sentencing as a substitute
for automatic waiver in cases where the offense is below
murder in the first degree.
Representative Davies noted that the class of juveniles that
would be affected is described on page 7 of the work draft.
They include:
A minor who is at least 13 years of age but had not reached
the age of 16 years of age at the time of the offense and
the offense is:
? An unclassified felony or class A felony;
? Sexual assault in the second degree; or
The minor is 16 years of age at the time of the offense and
the offense is:
? A felony that is a crime against a person and the
minor has previously been adjudicated a delinquent
under the laws of this state or substantially
similar laws of another jurisdiction for a felony
offense that is a crime against a person; or
? Sexual abuse of a minor in the second degree.
Ms. Knuth agreed that there are two groups of juveniles that
would be covered. Children 13 to 15 who have committed an
offense that would be covered under automatic waiver if they
were 16 years of age or older and 16 or 17 year olds who
commit a felony crime against a person with a prior
conviction would be covered.
Ms. Knuth observed that the fiscal impact is the result of
the need to house additional juveniles in adult facilities.
The corresponding reduction in the juvenile facility is not
translated as a positive figure in the Department of Health
and Social Services.
In response to a question by Representative Davies, Ms.
Knuth discussed civil penalties. She observed that civil
penalties would provide consequences for low level offenders
and small offenses. For example, curfew cases could be
subject to a fine. Action in civil court instead of
criminal court would result in cost savings. Civil
proceedings would not result in a loss of liberty or
criminal record. She maintained that the use of civil
sanctions would be more cost efficient and would achieve
results in lesser offenses. She reiterated that providing
consequences for even the smallest offense has a bigger
impact than reacting more harshly to the more serious
offenses. The legislation would allow the Department of
Health and Social Services access to records of civil
proceedings.
Representative Davies questioned if parents would be
responsible for fines assessed to juveniles. Ms. Knuth
pointed out that fines could be paid from a juvenile's
permanent fund dividend check. Fines should be based on the
ability of the person before the court to pay. She stated
that the fine might mean that the child mows someone's lawn
for four weekends. She asserted that the point is not to be
onerous but to provide some consequence.
Representative Davies expressed the hope that the fine would
move in the direction of the child earning the money to pay
the fine rather than using the child's permanent fund
dividend.
Ms. Knuth noted that fines could usually be converted into
community work service. She agreed that community work
service would have more impact than decreasing someone's
permanent fund dividend. Representative Davies requested
more information regarding the issue of parental
responsibility for a juvenile's fine.
Co-Chair Therriault noted that the legislation could be
broken down into separate legislative pieces. Ms. Knuth
emphasized that the pieces need to be intertwined to
maintain the intent of the Governor's Conference on Youth
and Justice.
BARBARA BRINK, DIRECTOR, PUBLIC DEFENDER AGENCY testified
via teleconference on HB 16. She acknowledged support for
the provision, under the proposed committee substitute, not
to send juveniles 15 years and younger to adult
institutions. The proposed committee substitute would only
send juveniles 16 years or older to adult institutions.
Ms. Brink stated that in order to support the legislation
one must believe that treating children as adults is a more
effective crime prevention tool. She maintained that
studies have shown that juvenile treatment programs in
Alaska have a higher success rate than in other states. She
did not accept the premise that housing juveniles in adult
jails reduces the crime rate.
Ms. Brink maintained that the current system is already
holding juveniles accountable. She noted that the state of
Alaska is 37th in the nation in relation to juvenile crime
rates. Alaska is number two in the country in regards to
the number of children that are locked up and in the length
of their sentence. She maintained that Alaska is already
taking a very strong approach to juvenile crime.
Ms. Brink pointed out that the state of Alaska already has
the ability to waive juveniles into adult court. To her
knowledge, the State has only lost one waiver petition in
the last five years.
Ms. Brink expressed concern that the legislation is broadly
drafted. She observed that the legislation would pertain to
juveniles who have committed sexual offenses. She
emphasized that many juveniles who commit sexual offenses
have been sexually abused. She stressed that juvenile sex-
offender treatment programs are more effective than adult
sex-offender treatment programs. She urged that these
offenders be omitted from dual sentencing provisions.
Ms. Brink maintained that the legislation is more punitive
than adult provisions in regards to probation revocation.
An adult can argue that there should not be additional jail
time. Under the legislation, juveniles would face automatic
jail time for some offenses and a presumption of entry into
adult court in other cases. Juveniles would have the burden
of proving that they should stay in the juvenile system.
Ms. Brink discussed the Agency's fiscal note. She noted
that few juvenile cases are contested. She emphasized that
all participants in the juvenile system are in partnership.
A combined juvenile/felony trial would be more expensive.
Many of the cases would proceed to trial. Felony cases go
to trial a disproportionate amount of time compared to other
cases. In addition, there would be an adult sentencing
process. She maintained that the process would be more
costly and time consuming than filing a petition to waive
someone under the current system. She observed that the
petition process would be costly.
Ms. Brink expressed concern with section 36, which would
allow hearsay at the temporary detention hearing. She
emphasized that an adult has a constitutional right to bail.
Juveniles have a right to the least restrictive placement.
The least restrictive placement could be an institutional
placement. She urged that that section 36 be deleted. She
emphasized the difficulty of determining the credibility of
a witness who is not present.
Ms. Brink discussed restitution. She noted that current
Alaska statutes order a judge not to consider someone's
ability to pay.
Ms. Brink expressed concern with the constitutionality of
the legislation. She noted that prosecutors have the
discretion to choose who will have a petition charged
against them. There is no judicial review or standard. She
did not know if parents would be held responsible for their
children's fine.
Ms. Brink emphasized that a child would face long sentences
under adult presumptive sentencing.
(Tape Change, HFC 98 -46, Side 2)
BRANT MCGEE, PUBLIC ADVOCATE, OFFICE OF PUBLIC ADVOCACY
testified via teleconference on HB 16. He expressed concern
with the unfettered discretion of prosecutors and juvenile
probation officers. He discussed a theoretical case
involving a 13-year old who participated in a robbery of a
pizza deliveryman. The offense could be charged as a class
A or B felony depending on the circumstances. If it were
charged as a class B felony it would go through the juvenile
system. The focus would be on what should be done to reform
the child. If it were charged as a class A felony it would
proceed to the grand jury in a manner much like an adult
proceeding. He maintained that there would be little room
for negotiation. Trial would be likely. If there were a
gun on the back seat of the car where the child was located,
he would be eligible for a presumptive term of 7 years. On
a presumptive term of 7 years he would have to serve 4 years
and 8 months. If he fails to satisfy the program set by his
juvenile probation officer he would return to the court. If
the judge imposes the remainder of his sentence he would be
housed in a juvenile facility until he is 16 at which time
he would enter an adult facility. He would be released from
adult prison just before his 19th birthday. Mr. McGee
stated that he could not think of a better way to
manufacture criminals than to place juveniles into adult
prison and then release them just short of their 19th
birthday. He emphasized that executive branch officials
would have unfettered discretion in terms of the charges and
the revocation proceeding. He stressed that the legislation
represents a serious shift in how juvenile offenders are
handled.
Representative Davies referred to page 12, lines 11 - 13,
"however, the sentence pronounced under this paragraph must
include some period of imprisonment that is not suspended by
the court." Ms. Brink stressed that this provision is more
punitive than the adult process. She reiterated that
juveniles would have to serve some adult jail time. An
adult who has been convicted of the same offense does not
necessarily have to do jail time.
Representative Kelly provided members with Amendment 1 (copy
on file). He noted that the amendment makes technical
changes. Representative Kelly MOVED to ADOPT Amendment 1.
Ms. Knuth explained that the amendment corrects a problem
with the deletion of a closing coma. The second part of the
amendment deletes a redundant phrase "information regarding
a case involving a minor".
There being NO OBJECTION, Amendment 1 was adopted.
Representative Davies provided members with Amendment 2
(copy on file). Co-Chair Therriault OBJECTED for the
purpose of discussion. Representative Davies explained that
the amendment would remove the repetitive phase "or the
entity selected by it". The amendment would add a new
section that allows the Department to delegate its authority
to another entity. Representative Kelly requested that the
amendment be held to make sure that there are no problems
with sovereignty issues.
Ms. Knuth clarified that the Department of Health and Social
Services would only want to delegate some of its authority.
The Department does not want to delegate the authority to
file a petition. Only the Department of Health and Social
Services would be able to file a petition to initiate
delinquency proceedings. This is a core governmental
function of the Department of Health and Social Services.
Representative Davies WITHDREW Amendment 2.
Co-Chair Therriault noted that a proposed committee
substitute would be drafted to include Representative
Davies' proposed Amendment 2 and Amendment 1, which was
adopted by the Committee.
HB 16 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting adjourned at 2:50 p.m.
House Finance Committee 8 2/27/98pm
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