Legislature(1995 - 1996)
02/05/1996 01:03 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 5, 1996
1:03 P.M.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HOUSE BILL NO. 419
"An Act relating to the disposal of property, including firearms
and ammunition."
- CSHB 419(STATE AFFAIRS) PASSED OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 52
"Relating to the creation of a new United States Court of Appeals
for the Twelfth Circuit."
- HJR 52 PASSED OUT OF COMMITTEE
HOUSE BILL 75
"An Act relating to vehicle theft and the consequences of vehicle
theft including revocation of a driver's license, privilege to
drive, or privilege to obtain a license; amending Rule 32.1, Alaska
Rules of Criminal Procedure; and providing for an effective date."
- CSHB 75(STATE AFFAIRS) PASSED OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 419
SHORT TITLE: AGENCY DISPOSAL OF PROP., INCL. FIREARMS
SPONSOR(S): REPRESENTATIVE(S)
KOTT,Ogan,Foster,Barnes,Sanders,Willis,Toohey
Vezey,Kelly,Phillips,James,Bunde,Williams
JRN-DATE JRN-PG ACTION
01/12/96 2438 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/96 2438 (H) STATE AFFAIRS, JUDICIARY
01/16/96 2457 (H) COSPONSOR(S): OGAN
01/19/96 2495 (H) COSPONSOR(S): FOSTER, BARNES
01/22/96 2512 (H) COSPONSOR(S): SANDERS, WILLIS, TOOHEY
01/24/96 2529 (H) COSPONSOR(S): VEZEY, KELLY
01/26/96 2548 (H) COSPONSOR(S): PHILLIPS, JAMES
01/30/96 2567 (H) STA RPT CS(STA) NT 3DP 1DNP 3NR
01/30/96 2567 (H) DP: JAMES, WILLIS, OGAN
01/30/96 2567 (H) DNP: ROBINSON
01/30/96 2568 (H) NR: PORTER, GREEN, IVAN
01/30/96 2568 (H) FISCAL NOTE (ADM)
01/30/96 2568 (H) ZERO FISCAL NOTE (DPS)
02/07/96 2646 (H) JUD RPT CS(STA) NT 4DP 1DNP 2AM
02/07/96 2647 (H) DP: PORTER, VEZEY, GREEN, TOOHEY
02/07/96 2647 (H) DNP: FINKELSTEIN
02/07/96 2647 (H) AM: BUNDE, B.DAVIS
02/07/96 2647 (H) FISCAL NOTE (ADM) 1/30/96
02/07/96 2647 (H) ZERO FISCAL NOTE (DPS) 1/30/96
02/07/96 2647 (H) REFERRED TO RLS
02/09/96 2701 (H) RULES TO CALENDAR 2/9/96
02/09/96 2701 (H) READ THE SECOND TIME
02/09/96 2701 (H) STA CS ADOPTED UNAN CONSENT
02/09/96 2702 (H) ADVANCED TO THIRD READING 2/12 CALENDAR
02/09/96 2708 (H) COSPONSOR(S) BUNDE, WILLIAMS
02/12/96 2734 (H) READ THE THIRD TIME CSHB 419(STA)
02/12/96 2735 (H) PASSED Y28 N6 E6
02/12/96 2735 (H) NAVARRE NOTICE OF RECONSIDERATION
BILL: HJR 52
SHORT TITLE: CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT
SPONSOR(S): REPRESENTATIVE(S) PORTER,Rokeberg,Green
JRN-DATE JRN-PG ACTION
01/09/96 2392 (H) READ THE FIRST TIME - REFERRAL(S)
01/09/96 2392 (H) STATE AFFAIRS, JUDICIARY
01/10/96 2404 (H) COSPONSOR(S): ROKEBERG
01/30/96 2563 (H) STA RPT 6DP 1NR
01/30/96 2563 (H) DP: JAMES, PORTER, GREEN, ROBINSON
01/30/96 2563 (H) DP: WILLIS, OGAN
01/30/96 2564 (H) NR: IVAN
01/30/96 2564 (H) ZERO FISCAL NOTE (LAW)
01/30/96 (H) STA AT 08:00 AM CAPITOL 102
01/30/96 (H) MINUTE(STA)
02/05/96 (H) JUD AT 01:00 PM CAPITOL 120
02/07/96 2641 (H) JUD RPT CS(JUD) 6DP 1NR
02/07/96 2641 (H) DP: VEZEY, B.DAVIS, PORTER, GREEN,
BUNDE
02/07/96 2641 (H) DP: TOOHEY
02/07/96 2641 (H) NR: FINKELSTEIN
02/07/96 2641 (H) ZERO FISCAL NOTE (LAW) 1/30/96
02/07/96 2641 (H) REFERRED TO RULES
02/09/96 2707 (H) COSPONSOR(S): GREEN
BILL: HB 75
SHORT TITLE: INCREASED PENALTIES FOR JOYRIDING
SPONSOR(S): REPRESENTATIVE(S) SANDERS,Finkelstein,Kott
JRN-DATE JRN-PG ACTION
01/06/95 40 (H) PREFILE RELEASED
01/16/95 40 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 40 (H) STATE AFFAIRS, JUDICIARY, FINANCE
01/25/95 136 (H) COSPONSOR(S): FINKELSTEIN
01/19/96 2494 (H) COSPONSOR(S): KOTT
01/25/96 (H) STA AT 08:00 AM CAPITOL 102
01/25/96 (H) MINUTE(STA)
01/26/96 2540 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
01/26/96 2540 (H) STATE AFFAIRS, JUDICIARY, FINANCE
01/30/96 2564 (H) STA RPT 5DP 2NR
01/30/96 2565 (H) DP: JAMES, PORTER, GREEN, WILLIS, OGAN
01/30/96 2565 (H) NR: IVAN, ROBINSON
01/30/96 2565 (H) 9 FNS (ADM, 2-CORR, 3-DHSS, LAW, 2-DPS)
01/30/96 2565 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
01/30/96 (H) STA AT 08:00 AM CAPITOL 102
01/30/96 (H) MINUTE(STA)
02/05/96 (H) JUD AT 01:00 PM CAPITOL 120
02/07/96 2642 (H) JUD RPT 7DP
02/07/96 2642 (H) DP: VEZEY, FINKELSTEIN, B.DAVIS, GREEN
02/07/96 2642 (H) DP: BUNDE, TOOHEY, PORTER
02/07/96 2642 (H) FISCAL NOTE (COURT)
02/07/96 2642 (H) 8 FNS (2-DPS, ADM, 2-DOC, 3-HES)
1/30/96
02/07/96 2642 (H) FISCAL NOTE (LAW) 1/30/96
02/07/96 2643 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 1/30/96
02/07/96 2643 (H) REFERRED TO FIN
02/13/96 (H) FIN AT 10:00 AM HOUSE FINANCE 519
02/15/96 (H) FIN AT 01:30 PM HOUSE FINANCE 519
WITNESS REGISTER
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 432
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Prime Sponsor of HB 419
BRUCE BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-2075
POSITION STATEMENT: Testified in support of HJR 52
REPRESENTATIVE SANDERS
Alaska State Legislature
State Capitol, Room 414
Juneau, Alaska 99801-1182
Telephone: (907) 465-4945
POSITION STATEMENT: Testified as sponsor of HB 75
MICHAEL KORKEL, President
Alaska Peace Officers Association
1979 Peger Road
Fairbanks, Alaska 99709
Telephone: (907) 451-5316
POSITION STATEMENT: Testified in support of HB 75
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in support of HB 75
JOHN NEWELL, Police Chief
City and Borough of Sitka
100 Lincoln Street
Sitka, Alaska 99835
Telephone: (907) 747-3294
POSITION STATEMENT: Testified in support of HB 75
L. DIANE WORLEY, Director
Division of Family & Youth Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Testified in support of HB 75
ANNE D. CARPENETI, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in support of HB 75
JERRY SHRINER, Special Assistant
Department of Corrections
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907)465-4640
POSITION STATEMENT: Provided information on HB 75
ACTION NARRATIVE
TAPE 96-14, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:03 p.m. Members present at the call to order were
Representatives Bunde, Toohey, and Vezey. Representatives Green,
Davis and Finkelstein attended the meeting at a later time
respectively, 1:09 p.m., 1:15 p.m. and 1:15 p.m.
CHAIRMEN PORTER stated that there were three bills for
consideration before the Judiciary committee, HB 419, HJR 52, and
HB 75. He announced that HB 154 had been returned to the sponsor
so that he could respond specifically to the concerns of the state
as presented in the last meeting. A committee substitute will be
drafted to address these concerns. Chairman Porter noted that
there would be additional testimony once this has been
accomplished.
HB 419 - AGENCY DISPOSAL OF PROP., INCL. FIREARMS
Number 190
REPRESENTATIVE PETE KOTT came forward to present HB 419. He stated
that it was a simple bill to understand. The purpose of the bill
was to establish in statute, a clear policy regarding the
disposition of hand guns by the state. The definition of hand guns
under this legislation would mean ones declared in excess,
confiscated, found or in some instances, forfeited.
REPRESENTATIVE KOTT declared this legislation was needed because
within the past six months the administration has oscillated about
what to do with these types of handguns. A current provision
allows for "long irons" or shot guns to be sold. Basically, this
bill deals strictly with hand guns and outlines for the
administration disposition procedures. Representative Kott
referred to section 4 under "disposal," where it outlines that the
state can either sell or trade these safe firearms, which are
useable and have some financial value, to a federally licensed
firearms dealer. This dealer can then resell these guns to anyone
who meets the parameters under the Brady bill and other state and
federal regulations.
REPRESENTATIVE KOTT pointed out that a CS of HB 419 was adopted in
State Affairs. This CS returned to the status quo what
municipalities are allowed to do. It gives them the option of
selling guns to the public. The intent of the bill was not to
infringe on what's been done at the municipal level.
Number 356
REPRESENTATIVE CYNTHIA TOOHEY asked if the municipalities had the
right not to do it.
REPRESENTATIVE KOTT responded that this was correct.
Number 378
REPRESENTATIVE CON BUNDE referred to some suggested amendments and
concerns of the Outdoor Council, one was to allow the transfer of
these firearms to a hunter education program and the other was for
those individuals who pay their fine, they be allowed to have their
firearm returned to them. The council also asked that the amount
of the fine go to the Wildlife Safeguard Program.
REPRESENTATIVE KOTT stated that he had not seen these suggestions
yet. On the proposed fines issue, he pointed out that this may be
tough to implement, especially the concept segregate and disburse
money to a particular agency. While it may seem like a good
feature to return firearms back to their owners and a very easy
sounding prospect, he was not familiar with the procedure.
Number 516
REPRESENTATIVE BUNDE pointed out that it wasn't fair to require
Representative Kott to respond to issues he had yet to review. He
stated he would pass these suggestions on to Representative Kott
and if beneficial amendments arise out of these efforts they can be
dealt with at a later time during the legislative process.
Number 670
REPRESENTATIVE BUNDE moved to pass CS HB 419 (State Affairs) from
the Judiciary Committee with individual recommendations and its'
attached fiscal note. Representative Vezey objected for the
purposes of asking for the division of the house. A roll call vote
was requested. Representatives Green, Bunde, Toohey, Vezey and
Porter voted in favor of the motion. CS HB 419 (State Affairs) was
so moved.
HJR 52 - CIRCUIT COURT OF APPEALS FOR 12TH CIRCUIT
Number 768
CHAIRMAN PORTER introduced HJR 52 as sponsor. This resolution
would be sent to the U.S. Congress in support of legislation there
which seeks to divide the current 9th Court of Appeals into two
courts. The federal level 9th Court of Appeals has jurisdiction
over Alaska. Chairman Porter added that the 9th circuit is one of
11 circuits and it was established in 1911. It is comprised of
virtually the entire western part of the United States and it has
become unwieldy in size. The ability to run a consistent decision
making body of a court of appeals has become compromised.
CHAIRMAN PORTER continued to say that there have been concerns
about the 9th Circuit's size and considerations for dividing it
into two have been around for a while. In 1970 there was a federal
study done on the 9th and 5th circuit. The 5th circuit, as a
result of this study, was divided and the 11th Circuit Court of
Appeals was established. The 9th circuit was kept intact, but
instead of all of the judges hearing the respective cases, groups
of judges within the 9th circuit hear them instead, which results
in inconsistent decisions being handed down. This makes it
difficult and expensive for those states which it serves to do
business, let alone to interpret what the law really says.
CHAIRMAN PORTER added that the seat of the 9th Circuit Court is in
California. The administrator lives in San Francisco, most of the
judges in Los Angeles. Since these judgeships are lifetime
appointments, they spend a lot of time in these areas. He offered
an anecdote as an illustration about this alienation from Alaska.
In recent discussions in the 9th Circuit regarding many Alaska
cases now before the court, in trying to define rural as applied to
Alaska, they sought help to define it by referring to the Milepost
Magazine. They proclaimed that everyone knows that a rural
district is one where there is not a lot of population and it's got
a lot of agriculture and ranches. This is the extent to which how
out of touch the 9th Circuit is with the state of Alaska.
CHAIRMAN PORTER summed up by saying that Alaska, Washington,
Oregon, Idaho and Montana would become the 12th Circuit Court of
Appeals.
Number 1045
BRUCE BOTELHO, Attorney General, Department of Law, stated that the
administration fully supports HJR 52. He said that there were two
problems with the existing 9th Circuit Court from their
perspective. First, the 9th circuit is the largest in the country
and secondly, it is the most back logged circuit in the country,
since it is dominated by California. There are currently 28 judges
on the court, 19 of them are California based judges. This is
pertinent, not necessarily because Alaska has anything directly
against California, but it is a recognition that it should be a
reasonable expectation that judges should share common experiences
with the people over whom they are passing judgment. Mr. Botelho
cited the case used by Chairman Porter concerning the definition of
rural in the Kenaitze case.
MR. BOTELHO went into greater detail regarding this case. He
referenced part of the language to help illustrate this problem.
The state of Alaska in adopting regulations on the concept of rural
in the context of ANILCA, everyone understood rural to mean bush
Alaska. In implementing this interpretation the Alaska Board of
Fish and Game interpreted rural to exclude areas where the
predominate economic characteristic was a non-cash economy. The
consequence of this was that the Kenai peninsula was ruled not to
be a rural area. This matter was then taken to court. U.S.
District Court being very familiar with Alaska and also familiar
with the history of ANILCA ruled in the state's favor. They felt
this was a reasonable interpretation, hence an appeal was
undertaken to the 9th Circuit Court.
MR. BOTELHO quoted the actual language from part of the 9th Circuit
Court's opinion in the context of Alaska being unusual if not,
exotic. "The state's definition would exclude practically all
areas of the United States that we think of as rural, including
virtually the entirety of such farming and ranching states as Iowa
and Wyoming. The term rural is not difficult to understand. It is
not a term of art. It is a standard word in the English language
commonly understood to refer to areas of the country that are
sparsely populated, where the economy centers on agriculture or
ranching."
MR. BOTELHO stated again that the panel was constituted primarily
of California judges, was a three member panel, which rendered this
opinion. In fact most of the panels are constituted of judges from
California and who are removed from the rural experience, certainly
the Alaskan and Northwestern experience. This is one problem.
The second problem is simply the delay. He noted that one tends to
focus and put priority on those issues they are most familiar with
and those closest to home. Those Alaskan cases which are of utter
importance don't appear to have the same type of priority as those
arising out of the chief contributor to the court's docket,
California.
MR. BOTELHO thought the best case in point was the Katie John case.
All of us have an interest in having a case decided quickly, no
matter what side someone is on. Even after expedited consideration
was granted in this case, it took 13 months after everything the
lawyers could have done, had been done and this information had
been submitted for a decision resolution. It took another nine
months for the panel to make a clarification on reconsideration.
The 9th Circuit has been notoriously the circuit with the most
delay. The focus of the federal court has been to figure out
innovative ways to expedite consideration in the 9th circuit. They
have made some improvements so that the average case supposedly
takes 15 months after it's been submitted. It is still woefully
slower than the other circuits. As a sovereign state Alaska has
the right to have it's issues decided much more expeditiously than
the current makeup which of the 9th circuit would permit.
MR. BOTELHO stated that there had been some developments which
suggests modifications to the resolution. When the bill reached
the Judiciary Committee in the U.S. Senate there were other states
who were enthused about getting out of the 9th circuit. On
December 7, 1995 on the floor, both Arizona and Nevada requested to
abandon the 9th circuit as well. As part of the price to get this
bill out of committee, Phoenix had been identified as the new
center for this new 12th circuit. He suggested that the resolution
before the Alaska Judiciary be modified to express Alaska's desire
that the headquarters be located in the Northwest as was originally
contemplated.
MR. BOTELHO continued that on Thursday of this last week, HR 2935
was introduced by Congressman Don Young as a companion bill
promoting the 12th circuit and it's in the original form. This
would constitute the five northwestern states which were originally
intended to be part of the Senate 956 and would allow that the 9th
Circuit Court be headquartered in Portland. He stated, "thus again
events have overtaken the resolution not in concept, but in terms
of very specific events which should be tailored to modifying HJR
52."
MR. BOTELHO stated that he had made contact with his colleges in
the other northwestern states and while half of them are Republican
and the other Democrat, they unanimously supported the division of
the circuit. This is not a partisan issue.
Number 1493
REPRESENTATIVE CON BUNDE asked what steps these states have taken
to pursue the establishment of this 12th Circuit Court.
MR. BOTELHO answered that virtually every state has signed on to
the senate bill, but in terms of the house bill he hadn't yet
reviewed it to see who else has signed on. Senator Gordon of
Washington state is the primary sponsor of S956 and both of
Alaska's senator have signed on, as have at least one senator of
the other states involved.
Number 1532
REPRESENTATIVE CYNTHIA TOOHEY asked if the bill language for HJR 52
would be rewritten to just include northwestern states.
CHAIRMAN PORTER said that he would ask the committee to
conceptually change this bill now and have the bill drafter put in
this conceptual amendment before it is moved out of committee.
Number 1570
REPRESENTATIVE BETTYE DAVIS made a motion to conceptually change
HJR 52 as outlined, which would allow that the headquarters of 12th
circuit be in the Pacific Northwest and it would state that the
Judiciary Committee supports the federal companion bill HR 2935 as
proposed. Hearing no objection HJR 52 was so amended.
Number 1697
REPRESENTATIVE AL VEZEY made a motion to move HJR 52 from the
Judiciary Committee with individual recommendations as amended.
Hearing no objection it was so moved.
HB 75 - INCREASED PENALTIES FOR JOYRIDING
Number 1748
CHAIRMAN PORTER presented HB 75 regarding car theft and he noted
the sponsor, Representative Sanders.
REPRESENTATIVE JERRY SANDERS stated that HB 75 is not about
joyriding or mischief, but about vehicle and auto theft. In 1995
there were over 3,000 vehicle thefts statewide in Alaska. He noted
that there was a vehicle theft bill last year. It went to the
governor's desk and was vetoed. If this had past last July, he
wondered how many of the roughly 1500 vehicle thefts could have
been avoided or how much restitution would have been paid.
REPRESENTATIVE SANDER said he was attempting to craft a middle
ground bill which the governor will approve and one which will pass
through the legislature in order to serve the public. The public
needs control over these auto thefts, especially with the juvenile
incidences of this crime, there is no control, and in relation to
adults, it's weak.
CHAIRMAN PORTER pointed out that a CS was before the committee
which incorporates the work which was done on the bill from last
year. The original parts of bill from last year in the CS were
those sections which would make first offense car theft a felony,
the provisions which were in the governor's bill and the provision
that juveniles who commit the offense of car theft would be sent
directly to district court to face an A misdemeanor offense.
Number 1910
REPRESENTATIVE BUNDE moved to adopt the CS for HB 75(JUD).
REPRESENTATIVE FINKELSTEIN asked again about the differences
between the CS and the bill.
CHAIRMAN PORTER explained that the CS basically was the moving up
of joy riding in general terms for adults from a misdemeanor to a
felony. The bill which came from State Affairs was this bill. The
Judiciary CS with it's pending motion, incorporates into this, the
bill from last year with sections affecting juveniles as outlined.
REPRESENTATIVE FINKELSTEIN requested that maybe someone from the
Attorney General's office address this issue, since this newest
format seems to be somewhat controversial. He noted that the
Judiciary Committee worked extensively on this issue last year and
it ended up in a confused situation because of the mixed messages
expounded in the testimony.
Number 2015
CHAIRMAN PORTER hearing no objection moved the CS for HB 75(JUD)
version (G) in front of the committee as a working document.
Number 2040
MICHAEL KORKEL testified by speaker phone from Fairbanks in support
of HB 75. He stressed that people make two major investments in
their life, one being their house, the other their vehicle. His
organization applauded the steeper penalty from a misdemeanor to a
felony. He noted that SB 220 and HB 75 do not seem to be very
different from one another. He did outline one concern they had
regarding the language about the offense in the second degree under
the circumstances of theft other than a motor vehicle, which he
assumed this could mean a snow machine or a three wheeler. He felt
as though these vehicles did not constitute the same penalties.
Number 2192
DEL SMITH, Deputy Commissioner, Public Safety testified in support
of creating a felony offense for stealing an automobile as outlined
in HB 75. The area in which they differ with the legislation is
that this felony offense when applied to a juvenile, should stay in
the juvenile court. He believed that auto theft should be punished
strongly and he believed there was a chance that if these cases
were brought to District Court there might be an opportunity for
these juveniles to not be prosecuted because the court might not
have the resources to do so and secondly, the adult system right
now is not running very efficiently as it is.
Number 2363
REPRESENTATIVE FINKELSTEIN asked Mr. Smith to comment on the
changes in the new CS before the committee, more specifically about
the elimination of the automatic waiver, the treatment of off-road
vehicles and section 9, which Representative Finkelstein had not
had a chance to fully understand at the moment.
Number 2390
MR. SMITH responded that as to the automatic waiver, the Department
of Public Safety and law enforcement in general, did not support
this automatic waiver to District Court of youthful offenders who
steal cars. As to the off-road vehicles to be excluded, the
department agrees that this should not be a felony.
CHAIRMAN PORTER responded to Representative Finkelstein's concerns
about section 9, which is existing law. This law provides for
traffic offenses of juveniles be presented to District Court and
misdemeanor car theft would be added to this provision.
TAPE 96-14, SIDE B
000
CHAIRMAN PORTER stated that under this bill there is the
availability for increased sentencing after second and subsequent
offenses, but this would remain a misdemeanor. It would remain in
the adult court system, as opposed to returning it to the juvenile
court system.
Number 028
REPRESENTATIVE BUNDE asked Mr. Smith for a percentage of car theft
incidences which involve juveniles rather than adults.
MR. SMITH stated that in 1995 there were 604 people were arrested
for joyriding. Of these, approximately 400 of them were adults,
hence about one-third of these numbers were juveniles. He pointed
out that this was true for those which were caught. In Anchorage
of the same year, there were approximately 2100 vehicles stolen,
and out of this number the criminals were not apprehended. It
would be impossible to determine the juvenile numbers for these
statistics.
097
REPRESENTATIVE VEZEY asked of the 2100 vehicles, how many were
recovered.
MR. SMITH said about 90 to 95 percent of the cars were recovered.
Number 250
JOHN NEWELL, Chief of Police, City and Borough of Sitka, testified
by speaker phone in favor of HB 75. He stated that he's the
President of the Alaska Association of the Chiefs of Police as
well. He felt as though Alaska was been long overdue in making
auto theft a felony. Alaska needs stiffer penalties to help act as
a deterrent to those who would take the property of another person.
MR. NEWELL recommended that the automatic waiver for juveniles not
be included in this legislation. He pointed out that there was a
definite problem in the system where they want to treat juvenile's
on the arrest and trial side as juveniles, but when they get them
incarcerated the system requires that they be treated as juveniles.
He pointed out that the system already allows for in specific
situations, that a defendant be considered an adult rather than a
juvenile.
Number 377
DIANE WORLEY, Director, Division of Family and Youth Services
(DFYS) testified in support of HB 75 in making vehicle theft a
felony. She referred to research which had been conducted and
printed on hand-outs for the committee, regarding how the
department currently address felonies in the present juvenile
probation system.
MS. WORLEY felt as though misinformation existed in relation to
what the department does with juveniles. The first page of this
hand-out gave a breakdown of different violations or referrals
which the department receives, showing that 23.3 percent of
juveniles have committed felonies. By adding car theft as a felony
offense, this would increase the felony charges by 10 percent, ie.
adding 200 felonies into the system.
MS. WORLEY referred to the second page of this handout. The
category as labeled N/A related to those juveniles who are referred
to the department through written report. The department does not
see the child directly through this means. The categories listed
below this first heading were those children who DFYS retains
custody of after an incident. Seventy-eight percent of all
juveniles are referred to the department by written report. Of
this number 18.5 percent are detained at the time of the incident.
MS. WORLEY moved onto the next chart. She noted, of the intakes
received, 40 percent were petitioned to court for all cases. 55.2
percent were petitioned to court for those with a prior referral to
the department. The remainder included a variety of situations,
for instance, the category labeled "adjusted with referral" could
mean that this individual might go to youth court, mediation,
restitution, etc. "Adjusted with conference" would mean that
parents were involved and they were taking action to participate to
make sure there was some type of follow through with restitution,
community work service, etc. She outlined some additional
categories for the pleasure of the committee.
MS. WORLEY referred to the next page. This information dealt with
those instances once the juvenile goes to court. These would
include all the petitioned cases. She gave the breakdown as
follows: 1.4 percent of all cases were waived to adult court, a
minuscule part are withdrawn, 62.2 percent were adjudicated, 9.2
percent were held in abeyance or suspended, 2.7 were diverted, 11.3
percent were dismissed and 12.6 percent were in process.
MS. WORLEY went on to add with the current felonies in the
department, a large percent of them do go to court and are
adjudicated with resulting accountability of their actions. In
discussing these in the context of the automatic waiver of district
court, one of the advantages in the juvenile system is that the
department monitors these kids, with longer terms of probation. By
keeping them in the juvenile system they are monitored more closely
and the parents become more involved and the department tries to
get as much restitution as possible, etc.
Number 702
REPRESENTATIVE JOE GREEN asked about the recidivism rate of these
juveniles.
MS. WORLEY stated that she didn't have this specific number, but
did refer him to the felony numbers. She cited that 51 percent of
the felonies referred to the department last year were individuals
who already had a prior offense, but not necessarily felony in
nature.
REPRESENTATIVE GREEN noted the horrendous fiscal note attached to
this bill and asked Ms. Worley what the department's restitution
record was like.
MS. WORLEY felt as though the department does a good job in this
area. The department really pushes for restitution in any crime,
in either the form of money or under a work pay-back situation.
Number 796
CHAIRMAN PORTER stated that if the committee passed just the
original State Affairs bill, they would be making first offense car
theft for anyone a felony. If a juvenile violated this statute
they would technically be charged under a petition for delinquency.
This would be a regular juvenile handling of an offense like this.
But, the seriousness of the offense that this petition alleges
would rise to the felony level as opposed to the present
misdemeanor level. Technically, they're not charged with a
misdemeanor or a felony, they're charged as a juvenile who is
treated as a potential delinquent, as opposed to having committed
a specific offense that amounts to a crime.
Number 876
REPRESENTATIVE BUNDE asked about the 51 percent of juveniles who
had prior referrals, and wondered how many of these had been
charged with joy-riding.
Number 900
MS. WORLEY stressed that this would overburden their computer
ability, because car theft is now a misdemeanor, which is lumped in
the criminal mischief category. She stated that during fiscal year
1994, 205 auto thefts were committed by juveniles.
REPRESENTATIVE FINKELSTEIN was a bit confused about the disposition
of these cases. If a juvenile was referred to the department and
convicted as a minor under a misdemeanor offense, if they were an
adult, this would be considered a felony. How would the department
categorize these youths under a felony offense under this new
legislation.
CHAIRMAN PORTER pointed out that if these juveniles committed a
felony they would not go through the Department of Family and Youth
Services. Presently, if a sixteen year old has too much to drink
and steals a car, he'd be charged with driving while intoxicated
(DWI) and car theft. He would go to adult court for the DWI and
juvenile court for the car theft.
Number 1008
REPRESENTATIVE FINKELSTEIN asked Ms. Worley if she thought these
juveniles, regardless of age were best served in all cases to be
referred to the adult system or should some of them stay in the
juvenile system.
MS. WORLEY responded that she does not support an automatic waiver
to adult court. She believed that some of the juveniles in the
system are still kids. On a developmental level, their emotional
level, intellectual level, etc., they are still kids. They need to
be treated as kids, but there are some juveniles who should be
waived. The department has this option. The majority of these
juveniles would be better served by staying in the juvenile system
for all the reasons she stated earlier.
Number 111
CHAIRMAN PORTER referred to the historical perspective of this
automatic referral concept. The concern was perceptually or not,
that misdemeanor juvenile offenders were not getting serious
sanctions as quickly as they should have and this waiver was a way
to do this. He understood the department treated felony crimes for
juveniles more severely than misdemeanors, but in reading the
attached fiscal note, if this is to take place the department would
need more resources. He questioned whether or not the department
could do this with limited funds.
MS. WORLEY stated that the Chairman was correct. Without resources
the ability to follow through in a quick and decisive manner would
be compromised. The department has already extended it's staff as
thinly as possible, particularly in juvenile proceedings. First,
a lot will depend on the child being charged whether or not they
understand the gravity of being waived directly to adult court,
this being part of the intent of the pending legislation.
Juveniles are not as frightened of the system as were those in the
past. There is also not a lot of parental involvement in these
kid's lives.
MS. WORLEY added that without additional resources, the department
will certainly not be able to act on these cases as quickly as they
would like. They would prioritize these felonies along with the
other cases as they currently do. The more serious offenses would
be dealt with first.
Number 1425
REPRESENTATIVE GREEN asked if this type of follow through would be
applied to those juvenile's with the high rate of recidivism.
MS. WORLEY said this would depend upon what their previous
involvement with the system had been.
REPRESENTATIVE GREEN asked if this population had already gone
through the types of monitoring which Ms. Worley outlined, such as
parent involvement, etc. Would these types of crimes have this
same benefit.
MS. WORLEY said again this would depend upon the crime of their
prior referral. It depends on the level of their offense.
Number 1573
ANN CARPENETI, Assistant Attorney General, Department of Law,
testified in support of HB 75. The department supports the CS of
HB 75, more specifically increasing the offense of car theft from
a misdemeanor to a felony, as well as, increasing the fine and jail
time. The changes in the vehicle theft in the first and second
degree have been improved. The department does not agree with the
automatic waiver of children to adult court as misdemeanors. Ms.
Carpeneti cited that there is no probation supervision for
misdemeanants in the state of Alaska. Children would go to court
once, be sentenced and that would be it.
MS. CARPENETI continued by stating that automatically waiving
vehicle theft to district court was an anomaly in the treatment of
juveniles who steal things. Juveniles who steal cars would be
treated differently than juveniles who steal other property. The
problem with the waiver is that it waives children of all ages. If
a juvenile was sent to district court automatically he or she would
have the right to a jury trial. Jury trials are composed of adults
and Ms. Carpeneti added it would be interesting to see a young
child tried by a panel of adults. She closed by stating that
there's a question of resources as well.
Number 1748
REPRESENTATIVE BUNDE asked what dollar amounts apply at the
different levels of theft for an adult.
MS. CARPENETI responded that $500 was the difference between a
felony and a misdemeanor.
REPRESENTATIVE FINKELSTEIN asked if the department had a problem
with the differentiation between the vehicle types cited in the
legislation.
MS. CARPENETI said that no they didn't and in fact the governor's
bill for vehicle theft provided that first offense of an all
terrain vehicle or a snow machine, which resulted in damage to the
vehicle of $500 or more, would be a felony. This CS makes offenses
that would be felonies instead, misdemeanors, by waiving
automatically juveniles to district court. Actually, first offense
automobile theft and causing damage of $500 or more is a felony now
and would be dealt in district court as a misdemeanor for a
juvenile.
Number 1895
REPRESENTATIVE FINKELSTEIN noted that this is all very confusing.
He added that this testimony was helpful since it's hard to realize
the different categories of offenses in existing law.
Number 1940
CHAIRMAN PORTER closed the public hearing. Chairman Porter said he
had spoken to the sponsor and he, nor Chairman Portman were married
to the CS which was just adopted. He said he was persuaded to a
degree that DFYS will treat those juveniles, charged as juveniles,
with the elements of a felony to a greater degree than in the past.
REPRESENTATIVE BUNDE encouraged Chairman Porter to find this CS
more attractive. In response to the argument that district court
was overloaded, he note how the juvenile system is incredibly
overloaded too. He added that these young people think juvenile
court is a joke. To use the old vernacular, "they want to make
their bones, they want to hit the big time soon, let's not slow
them down." He ended by stating that kids live up to the
expectations we place on them.
Number 2198
REPRESENTATIVE DAVIS hoped that the committee would consider not
supporting this bill in it's entirety. She was concerned about how
young some of these juveniles are. She also raised the question of
where these juveniles would be housed. Once they go through the
court system, she noted that they'd be obligated to put these
juveniles in adult jails. By putting juveniles in adult jails,
they're exposed to an adult population which would initiate them
into a more serious crime world.
CHAIRMAN PORTER said that those juveniles who are waived into adult
court do serve time in adult facilities, but those who for example
accrue a second DWI, they would serve their time in MacLaughlin.
Number 2415
REPRESENTATIVE BUNDE pointed out that MacLaughlin presently is
overcrowded as well.
TAPE 96-15, SIDE A
Number 000
REPRESENTATIVE GREEN voiced his concerns about the large fiscal
note attached to this CS. He asked why this couldn't be toughened
up to require more restitution provisions to help offset the cost
to the department.
CHAIRMAN PORTER asked if this fiscal note was attached to the State
Affairs CS version or the present Judiciary CS version.
JERRY SHRINER, Special Assistant, Department of Corrections noted
that this CS was attached to the State Affairs version. The major
portion of the money in this fiscal note was related to the second
time felony theft, which makes this a mandatory two year sentence.
Number 211
CHAIRMAN PORTER pointed out that the State Affairs CS changed this.
The fiscal note may need to be updated. The State Affairs CS left
both first and second offense felonies at the (C) level.
MR. SHRINER said it was his understanding that a second conviction
as a (C) felony is a two year mandatory sentence. Chairman Porter
then agreed that this was the case.
Number 250
REPRESENTATIVE GREEN asked if these juvenile's permanent funds
could be attached indefinitely, if they were unable to pay
restitution.
MR. SHRINER said that for the year which this person served their
time, the department would recoup their respective permanent fund.
REPRESENTATIVE GREEN noted that there was a definite disparity
between the crime and how much a person is required to pay in
restitution.
CHAIRMAN PORTER pointed out that there's nothing to preclude a
civil judgment in these types of case, but the defendant may not
have the means to pay the amount of damages incurred.
Number 400
REPRESENTATIVE FINKELSTEIN moved that the Judiciary CS be
rescinded. He then brought up the issue of prosecutorial
discretion and that the system has the right to let someone go
completely, but they don't have the discretion to put the young
offender in the more appropriate juvenile system with an automatic
juvenile waiver. He thought that this prosecutorial discretion was
gone.
CHAIRMAN PORTER understood that if the adult prosecutor decided not
to charge, for example, the six year old from stealing a car, it
seemed to him that DFYS could deal with the case if it were
referred to them from the standpoint of delinquency, as opposed to
the crime of misdemeanor car theft.
MS. WORLEY made a clarification about payment. Through DFYS they
can order payment for housing of juveniles in their system.
Number 535
REPRESENTATIVE FINKELSTEIN asked if there was any other area of law
which provides for an automatic juvenile waivers for theft.
Chairman Porter answered no. Representative Finkelstein said that
his points were two in defense of his motion to rescind. One, the
premeditated crime of stealing televisions doesn't allow for an
automatic waiver. The second argument, is that after listening to
testimony, there isn't anything inherently that says that the adult
system serves better their purposes.
CHAIRMAN PORTER said this issue was a close call for him, but he
decided to support the motion to rescind the Judiciary CS. His
personal experience with these issues is dated, he was impressed
that law enforcement felt that juveniles shouldn't be automatically
waived. Also, last year when they were discussing these issues,
they didn't have this option that DFYS would monitor these
felonious juveniles more closely.
Number 877
REPRESENTATIVE VEZEY suggested that they maintain the automatic
waiver, but leave an option in for the juvenile to prove that their
worthy of rehabilitation.
CHAIRMAN PORTER pointed out that this is the current state of the
law in a waiver already. When the prosecution wants to ask for a
waiver to adult court, it's not an automatic waiver. The burden of
proof of worthiness is on the juvenile, but violent crimes are
automatically waived.
REPRESENTATIVE BUNDE withdrew his objection to waive the Judiciary
CS version of HB 75.
Number 1082
CHAIRMAN PORTER recognized the motion to rescind adopting the
Judiciary CS. Hearing no objection it was so moved. The State
Affairs CS was then before the committee.
REPRESENTATIVE DAVIES made the motion to move the State Affairs CS
for HB 75 from the Judiciary Committee. Hearing no objection it
was so moved.
ADJOURNMENT
CHAIRMAN PORTER adjourned the House Judiciary meeting at 3:00 p.m.
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