Legislature(1997 - 1998)
02/19/1997 01:07 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 19, 1997
1:07 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Ethan Berkowitz
Representative Eric Croft
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 3
"An Act relating to disclosures of information about certain
minors."
- MOVED CSHB 3(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 6
"An Act amending laws relating to the disclosure of information
relating to certain minors."
- MOVED CSHB 6(JUD) OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 4
Relating to records generated and maintained by the Department of
Health and Social Services.
- MOVED CSHCR 4(JUD) OUT OF COMMITTEE
* SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58
"An Act relating to civil actions; relating to independent counsel
provided under an insurance policy; relating to attorney fees;
amending Rules 16.1, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules
of Civil Procedure; amending Rule 702, Alaska Rules of Evidence;
amending Rule 511, Alaska Rules of Appellate Procedure; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 3
SHORT TITLE: DISCLOSURES RE FELONY ARRESTS OF MINORS
SPONSOR(S): REPRESENTATIVE(S) KOTT, Kelly, Cowdery
JRN-DATE JRN-PG ACTION
01/13/97 27 (H) PREFILE RELEASED 1/3/97
01/13/97 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 28 (H) JUDICIARY
02/07/97 (H) JUD AT 1:00 PM CAPITOL 120
02/07/97 (H) MINUTE(JUD)
02/07/97 277 (H) COSPONSOR(S): COWDERY
02/10/97 (H) JUD AT 1:00 PM CAPITOL 120
02/10/97 (H) MINUTE(JUD)
02/12/97 (H) JUD AT 1:00 PM CAPITOL 120
02/12/97 (H) MINUTE(JUD)
02/14/97 (H) JUD AT 4:00 PM CAPITOL 106
02/14/97 (H) MINUTE(JUD)
02/17/97 (H) JUD AT 4:00 PM CAPITOL 106
BILL: HB 6
SHORT TITLE: RELEASE OF INFORMATION ABOUT MINORS
SPONSOR(S): REPRESENTATIVE(S) KELLY, Phillips, Ryan
JRN-DATE JRN-PG ACTION
01/13/97 28 (H) PREFILE RELEASED 1/3/97
01/13/97 28 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 28 (H) HES, JUDICIARY
01/14/97 59 (H) COSPONSOR(S): PHILLIPS
01/23/97 (H) HES AT 3:00 PM CAPITOL 106
01/23/97 (H) MINUTE(HES)
01/28/97 (H) HES AT 3:00 PM CAPITOL 106
01/28/97 (H) MINUTE(HES)
01/29/97 175 (H) COSPONSOR(S): RYAN
01/31/97 185 (H) HES RPT CS(HES) NT 4DP 2NR 1AM
01/31/97 185 (H) DP: DYSON, GREEN, BUNDE, PORTER
01/31/97 185 (H) NR: BRICE, KEMPLEN
01/31/97 185 (H) AM: VEZEY
01/31/97 186 (H) 8 FISCAL NOTES (HES)
01/31/97 186 (H) 3 ZERO FISCAL NOTES (DPS, ADM, LAW)
01/31/97 186 (H) CMTE REC FINANCE REFERRAL
02/03/97 228 (H) FIN REFERRAL ADDED
02/07/97 (H) JUD AT 1:00 PM CAPITOL 120
02/07/97 (H) MINUTE(JUD)
02/10/97 (H) JUD AT 1:00 PM CAPITOL 120
02/10/97 (H) MINUTE(JUD)
02/12/97 (H) JUD AT 1:00 PM CAPITOL 120
02/12/97 (H) MINUTE(JUD)
02/14/97 (H) JUD AT 9:00 AM ASSEMBLY RM 250
02/14/97 (H) MINUTE(JUD)
02/14/97 (H) JUD AT 4:00 PM CAPITOL 106
02/14/97 (H) MINUTE(JUD)
02/17/97 (H) JUD AT 4:00 PM CAPITOL 106
02/17/97 (H) MINUTE(JUD)
BILL: HCR 4
SHORT TITLE: SEPARATE RECORDS FOR DELINQUENTS & CINA
SPONSOR(S): REPRESENTATIVE(S) KELLY, Phillips, Dyson, Ryan
JRN-DATE JRN-PG ACTION
01/13/97 21 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 21 (H) HES, FINANCE
01/14/97 59 (H) COSPONSOR(S): PHILLIPS
01/15/97 78 (H) COSPONSOR(S): DYSON
01/23/97 (H) HES AT 3:00 PM CAPITOL 106
01/23/97 (H) MINUTE(HES)
01/28/97 (H) HES AT 3:00 PM CAPITOL 106
01/28/97 (H) MINUTE(HES)
01/29/97 174 (H) COSPONSOR(S): RYAN
01/31/97 183 (H) HES RPT 7DP
01/31/97 183 (H) DP: DYSON, GREEN, BUNDE, KEMPLEN,
BRICE
01/31/97 183 (H) PORTER, VEZEY
01/31/97 183 (H) 2 ZERO FNS (ADM, HES)
02/03/97 227 (H) JUD REFERRAL ADDED
02/03/97 227 (H) REMOVED FROM FINANCE
02/03/97 227 (H) REFERRED TO JUDICIARY
02/10/97 (H) JUD AT 1:00 PM CAPITOL 120
02/10/97 (H) MINUTE(JUD)
02/12/97 (H) JUD AT 1:00 PM CAPITOL 120
02/12/97 (H) MINUTE(JUD)
02/14/97 (H) JUD AT 4:00 PM CAPITOL 106
02/14/97 (H) MINUTE(JUD)
02/17/97 (H) JUD AT 4:00 PM CAPITOL 106
02/17/97 (H) MINUTE(JUD)
WITNESS REGISTER
REPRESENTATIVE PETE KELLY
Alaska State Legislature
Capitol Room 411
Juneau, Alaska 99811
Telephone: (907) 465-6589
POSITION STATEMENT: Prime Sponsor HB 6.
DIANE WORLEY, Director
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Provided testimony on HB 6.
REPRESENTATIVE PETE KOTT
Alaska State Legislature
Capitol Building, Room 302
Juneau, Alaska 99811
Telephone: (907) 465-6848
POSITION STATEMENT: Prime Sponsor HB 3.
ACTION NARRATIVE
TAPE 97-21, SIDE A
Number 001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee to
order at 1:07 p.m. All members were present at the call to order.
CHAIRMAN GREEN referenced a memorandum located in members'
committee file from Lisa Kirsch, House Judiciary Committee Aide,
regarding HB 119, "An Act raising the limit on small claims actions
to $10,000; and providing for an effective date." He advised
members that Representative Mark Hodgins had requested Legislative
Research to respond to the six questions, and if committee members
had additional questions they wished to present to Legislative
Research to contact Representative Hodgins' office.
HB 6 - RELEASE OF INFORMATION ABOUT MINORS
HB 3 - DISCLOSURES RE FELONY ARRESTS OF MINORS
HCR 4 - SEPARATE RECORDS FOR DELINQUENTS & CINA
Number 238
CHAIRMAN GREEN advised members the first order of business would be
a report by Representative Bunde, subcommittee chairman of HB 6,
"An Act amending laws relating to the disclosure of information
relating to certain minors," HB 3, "An Act relating to disclosures
of information about certain minors," and HCR 4, relating to
records generated and maintained by the Department of Health and
Social Services.
CHAIRMAN GREEN excused himself for the purpose of testifying in
another standing committee meeting.
VICE CHAIRMAN CON BUNDE, chairman of the subcommittee assigned to
HB 6, HB 3 and HCR 4, advised members that Representative Pete
Kelly had provided an updated list regarding the release of
information on felonies to the subcommittee. The subcommittee
presented several language adjustments to Representative Kelly and
asked that he incorporate them into the original version of HB 6,
and provide a draft committee substitute for the full committee's
consideration. The draft committee substitute could be found in
members' bill files.
Number 376
VICE CHAIRMAN BUNDE advised members that the subcommittee also
recommended that a draft committee substitute be prepared on HB 3,
"An Act relating to disclosures of information about certain
minors," which would incorporate the same list of crimes that would
trigger the release of information as in HB 6.
VICE CHAIRMAN BUNDE pointed out that the subcommittee did not take
a position as to endorsing one bill over the other.
Number 418
REPRESENTATIVE BRIAN PORTER, member of the subcommittee, pointed
out that there was a substantial amount of discussion regarding the
criteria relating to the appropriate point to release information.
He added that the criteria in both bills was the majority opinion
of the subcommittee.
REPRESENTATIVE PORTER reiterated that the Prime Sponsor of HB 3,
Representative Pete Kott, agreed with the recommendations of the
subcommittee and a draft committee substitute had been prepared.
Representative Porter noted that if both HB 6 and HB 3 passed the
legislature, there would not be any confusion or contradiction over
what the criteria was for the release of information.
Number 519
REPRESENTATIVE ERIC CROFT expressed his apologies for the inability
to attend Monday's committee meeting because of weather conditions
and the need to overhead to Sitka, Alaska. He pointed out that he
had been particularly concerned with the lower levels of burglary
and arson on buildings other than homes.
REPRESENTATIVE CROFT advised members he had some additional
language changes to HB 6 relating to the burning or burglarizing of
a shed, and also the ability to adjust a first time drug offender.
HB 6 - RELEASE OF INFORMATION ABOUT MINORS
Number 652
VICE CHAIRMAN BUNDE advised members they would now proceed with HB
6, "An Act amending laws relating to the disclosure of information
relating to certain minors." He asked that Representative Pete
Kelly comment on the draft committee substitute for HB 6 which
incorporated the recommendations of the subcommittee.
Number 720
REPRESENTATIVE PETE KELLY, Prime Sponsor, referenced Section 4 of
the draft committee substitute, CSHB 6 (), Version "T".
Number 734
REPRESENTATIVE NORMAN ROKEBERG moved to adopt CSHB 6 (), Version
"T" for the purpose of discussion. There being no objection, CSHB
6 (), Version "T" was adopted.
REPRESENTATIVE KELLY referenced Section 4, page 2, line 19, and
advised members that the new language would give the department the
discretion to say when someone was not in compliance.
REPRESENTATIVE KELLY continued on page 2, line 22, and advised
members that the word "previous" had been added to make clear it
was from a prior offence.
REPRESENTATIVE KELLY advised members that on page 2, line 29,
language was incorporated which would allow the release of
information about minors who commit felony crimes, not
misdemeanors.
REPRESENTATIVE KELLY pointed out that there had been concerns
raised regarding the use of the term "dangerous instrument" as
being too broad, so that had been changed to "deadly weapon" on
page 2, line 30.
REPRESENTATIVE KELLY referenced page 3, line 8, advising members
there had been concern regarding the possession of a marijuana
plant. If the plant was alive it would be considered as
manufacturing, and if the plant was dead it would be considered
possession of marijuana. Representative Kelly advised members they
deleted the "manufacturing" language of the original bill, and the
"intent to deliver" replaced that language on page 3, line 8.
REPRESENTATIVE KELLY advised members that individuals who sought
the route of petition rather than adjustment was addressed on page
3, line 9. Page 3, lines 11 and 12, addressed the names that would
be released at the petition phase. Representative Kelly pointed
out that the difference at petition involved the minor's alleged
commission of a felony if the minor was 16 years old who had been
previously convicted or adjudicated as a delinquent minor.
Number 1307
REPRESENTATIVE JEANNETTE JAMES asked for clarification regarding
the release of information for serious crimes.
REPRESENTATIVE KELLY responded that if a heinous crime was
committed, the person's name would be released at adjustment and if
the department chose to take the individual through the petition
process the minor's name would be released as well. He pointed out
that there would be no advantage to opt out of the adjustment phase
to go to the petition process on the more serious crimes.
Representative Kelly explained that that addressed a concern
expressed by the department.
Number 1407
REPRESENTATIVE JAMES stated that at the point of adjustment or
petition that punishment had not yet been established.
REPRESENTATIVE KELLY directed members attention to page 3, line 11,
which reflects, "the outcome of proceedings before the court", and
also on page 2, line 16, states, "the action required by the
agency".
REPRESENTATIVE JAMES asked to be excused for the purpose of
testifying in another standing committee meeting. Her request was
granted.
Number 1473
REPRESENTATIVE ETHAN BERKOWITZ was concerned that there would be no
incentive on the defendant's part to cooperate if disclosure took
place both at the adjustment stage and the petition phase.
REPRESENTATIVE KELLY felt language existed in the original bill
which provided an incentive to the defendant to go to the petition
phase rather than the adjustment phase, and he thought that was a
flaw in the bill. The draft committee substitute would not provide
that incentive because both phases were basically equal.
Number 1704
REPRESENTATIVE CROFT advised members that with information he
received from the Division of Family and Youth Services (DFYS), he
had provided a breakdown which reflected the percentage of
petitions dismissed by the court. He pointed out that
approximately 20 percent of the petitions filed by the department
were ultimately dismissed by the court for lack of evidence,
innocence, or other reasons. Representative Croft noted that in
the criminal system, cases were dismissed not because the
individual was possibly innocent, but that there was insufficient
evidence to prove one guilty. He pointed out that approximately 60
percent were adjudicated guilty on a petition, 20 percent found
insufficient evidence and approximately 20 percent included a
variety of things, such as dismissal and waivers to adult court.
REPRESENTATIVE CROFT expressed that his question during the
previous hearing regarded how many cases lacked evidence to pursue,
compared to how many, during the time period between petition and
adjudication, might be committing other crimes and asked if there
was any data relating to that scenario.
Number 1807
REPRESENTATIVE KELLY advised members that information would not be
available because the records were presently secret. He noted
that, anecdotally, he was aware of individuals going through the
adjustment phase committing other crimes while going through that
process. Representative Kelly assumed that would occur during the
petition process as well, although he felt there would be fewer
cases in that sense because once a petition is filed the individual
would know that action would be forthcoming.
REPRESENTATIVE CROFT asked, with regard to a space problem, when
deciding to detain a minor, if the proposed legislation was solving
a space problem through the disclosure requirement.
Number 1807
REPRESENTATIVE KELLY did not believe so. He expressed that the
juvenile crime system, as he understood it, was that for a lack of
inadequacies in the system of law that had developed over 30 years,
that the system was kind of teaching minors to be juvenile
criminals. It says if you commit a bad act, the punishment would
probably not be that great. Representative Kelly advised members
that what he learned from people who deal with those juvenile
situations was that when a minor finally comes before a judge,
he/she may have committed dozens of crimes previously, and when a
judge reviews a particular crime record and sentences the
individual to jail, the juvenile is completely "flabbergasted". He
noted that through a flawed system, flawed philosophy or limited
space, the state was not able to deal with the minor until a
serious crime was committed, which results in teaching the minor to
elevate their level of criminal activity because crime does pay if
there is no down-side to it. Representative Kelly referenced a
quote as follows: "This was the first generation that will not do
as well as its parents."; and someone else said, "This is the first
generation that is afraid of its children."
REPRESENTATIVE KELLY pointed out that the point of the proposed
legislation was to correct a system that had been in existence for
decades that basically protected criminal juveniles. The proposed
legislation would expose the individual's name, along with the
crimes they commit for the purpose of providing safety to the
public.
Number 2158
REPRESENTATIVE BUNDE agreed that there was a space problem for
those who go to petition and found guilty; however, pointed out
that the majority of the individuals were taking the adjustment
route and he felt that was where the preventative measure came into
effect, and space had nothing to do with that.
REPRESENTATIVE PORTER did not agree with the chart reflecting the
percentage of petitions dismissed by the court. He felt many of
cases that might have been dismissed was because there was not
enough time on the court's calendar to consider them, as well as
finding no probable cause to pursue a hearing. Representative
Porter felt that people could be filing for petition too soon and
the department should look into that possibility.
Number 2275
REPRESENTATIVE BERKOWITZ asked Representative Kelly how many of the
56 individuals interviewed were delinquents.
REPRESENTATIVE KELLY responded that he did not interview a lot of
juveniles.
REPRESENTATIVE BERKOWITZ asked what response Representative Kelly
received from the juveniles he did interview.
REPRESENTATIVE KELLY said that those he interviewed did not like
the idea of having their names released.
Number 2394
REPRESENTATIVE BERKOWITZ pointed out that with the Governor's
Commission on Juvenile Justice, that the public, in every community
in the state cautioned against disclosure. He advised members that
gave him a great deal of pause before he could endorse anything,
such as the proposed legislation which suggests disclosure as being
appropriate. Representative Berkowitz noted that the task force
spent a lot more time than committee members had sifting through
evidence, and had come to the conclusion that disclosure was not in
the best interest of the state.
REPRESENTATIVE KELLY pointed out that he was a member of that task
force, as was Representative Porter, and there had been a lot of
discussion relating to disclosure and he did not hear that much
objection to it. He advised members he was on the Youth at Risk
Task Force and Representative Porter was on the Offenders Task
Force which specifically addressed the issue of disclosure.
Number 2444
REPRESENTATIVE PORTER advised members that as a member of the
Justice Commission he attended the community meeting in Anchorage.
The method of getting at the opinion of release of juvenile records
was done through a series of scenarios, or fact situations. He
advised members that in Anchorage, as well as other communities,
the public did not disagree with the release of information of the
records of juvenile offenders for serious violations, but felt it
was appropriate.
TAPE 97-21, SIDE B
Number 000
REPRESENTATIVE PORTER stated that one of the scenarios asked about
involved a case of malicious mischief felony and if a 12 year old's
name should be released. The public's response was that it should
not be. Representative Porter stated that that type of situation,
under the proposed legislation, HB 3 and HB 6, the individual's
name would not be released. However, he stated that for serious
offenses there was a fairly good consensus that the names should be
released.
REPRESENTATIVE CROFT stated that both adjustment and adjudication
provided a fairly high confidence of guilt. In adjustment, the
juvenile has admitted to the crime, and in adjudication the court
has found guilt. The petition stage would still be an allegation
by the department. He asked what the approximate ratio was from
adjustment to petition cases.
REPRESENTATIVE KELLY stated that the ratio of referrals to petition
was approximately 15 percent.
REPRESENTATIVE CROFT pointed out that juveniles going into the
petition phase involved juveniles who were adamant about their
innocence, and those who admit guilt go through the adjustment
process.
REPRESENTATIVE KELLY agreed; however, pointed out that it would be
after a preliminary investigation had taken place in both cases;
i.e., petition and adjustment.
REPRESENTATIVE BERKOWITZ noted that of the crimes enumerated at the
bottom of page 2 and top of page 3, that they were all felonies
with the exception of misconduct involving a controlled substance,
subsection (G), page 3, line 6. He pointed out that there is
misconduct in the fifth degree, which was a Class A Misdemeanor and
felt that was somewhat anomalous.
REPRESENTATIVE KELLY asked if that involved delivery of a
controlled substance.
REPRESENTATIVE BERKOWITZ responded that it was a delivery charge,
AS 11.71.050. He stated that if they were going to attack felony
charges, was it the intent to leave that charge unaddressed in the
proposed legislation. Representative Berkowitz explained that the
delivery of an item did not necessarily mean the sale of that item,
adding that handing a book to someone would mean the same as
delivering the book.
REPRESENTATIVE KELLY advised members he would have to give that
some thought and could address the issue at a later time; however,
expressed that it could be something that should be included.
Number 245
REPRESENTATIVE ROKEBERG questioned the fiscal note dated 2/18/97,
which reflected $1,038,900 as being the total cost of both the lost
revenues and the restructuring costs of the department. He asked
the department to explain that amount.
Number 273
DIANE WORLEY, Director, Division of Family and Youth Services,
Department of Health and Social Services, advised members that the
total cost column figure of $1,037,900 included $698,200 of revenue
loss and $339,700 of restructuring costs.
REPRESENTATIVE ROKEBERG asked if the restructuring figure of
$339,700 was a one-time cost.
MS. WORLEY advised members that it would involve a one-time expense
for the restructuring changes, and the department saw that as
becoming a part the department's budget in an ongoing way.
REPRESENTATIVE ROKEBERG pointed out that $339,700 would be an
annual increment in the future and not involve a one-time charge.
MS. WORLEY stated that was correct.
Number 328
REPRESENTATIVE CROFT moved Amendment 1, page 4, line 12 after the
words "the public", delete [the name of the minor, the name or
names of the parent, parents, or guardian of the minor, information
about the offense alleged to have been committed by the minor,
and].
REPRESENTATIVE PORTER objected.
REPRESENTATIVE CROFT explained that he believed that Amendment 1
and Amendment 4 were primarily technical in that they modify page
4, line 12. He noted that currently the section read "If the minor
makes a request under this subsection, the department shall
disclose to the public the name of the minor, the name or names of
the parent, parents, or guardian of the minor, and information
about the offense", or any information as appropriate.
Representative Croft pointed out that the subcommittee was
concerned that it might not always be appropriate for all of those
and that it simply be information about the disposition of the
matter, or case as appropriate.
REPRESENTATIVE CROFT expressed that to some extent the language
presented a problem with lists by listing some of the things that
might be appropriate, but not all others. He pointed out that they
were addressing the exoneration category, that they were releasing
information when a mistake had been made and would be disclosing
innocence. Representative Croft advised members it was not giving
anymore discretion to the department to avoid releasing evidence of
guilt, but simply when it would be appropriate to release
exonerating evidence as appropriate.
Number 437
REPRESENTATIVE PORTER withdrew his objection after hearing the
explanation given by Representative Croft. There being no
objection, Amendment 1, was adopted.
Number 446
REPRESENTATIVE CROFT moved to adopt Amendment 2, to CSHB 6(JUD);
page 3, line 1, delete [11.46.410], page 3, line 2, delete
[11.46.310], page 3 line 27, delete [11.46.410] and page 3, line 28
delete [11.46.310]. Representative Porter objected.
REPRESENTATIVE CROFT explained that Amendment 2 was categorized as
the "shed amendment" by his office. He pointed out that they were
dealing with two categories; burglary in the first and second
degree and arson in the first and second degree. Representative
Croft advised members that second degree burglary and arson would
be eliminated by the proposed amendment.
REPRESENTATIVE CROFT explained that in both charges, the second
degree charge was a base, generic form; burning of a building or
breaking into any structure or building with the intent to commit
a crime. He pointed out that breaking into a "shed" to steal a
hammer, or burning a "shed" where no one lives, would fall under
the second degree category. Representative Croft advised members
that arson in the first degree would include the possibility of
causing harm to a person, or acting with recklessness towards
someone. Burning a "shed" where someone lives would be first
degree arson. He stated that second degree burglary involved
burglary of any structure, and first degree involved the burglary
of a house or dwelling, using a dangerous weapon to commit the
crime, confiscating a dangerous weapon upon leaving the dwelling,
or breaking into a "shed" to cause someone bodily harm.
REPRESENTATIVE CROFT advised members that the question Amendment 2
addressed was what manner of punishment should be imposed on
juveniles committing "shed" crimes. He pointed out that DFYS had
requested that some discretion be allowed for first time "shed"
offenders, although second time offenders who had not complied with
their restitution from the first offense, would be automatically
disclosed under the proposed legislation.
Number 575
CHAIRMAN GREEN posed a hypothetical situation whereby a minor
burned a "shed" just for the purpose of burning it, and found later
that someone had been injured, or something valuable destroyed in
the fire. He asked if a situation such as that would change the
offense.
REPRESENTATIVE CROFT advised members it would not be dependent on
the damage caused, but dependent on some knowledge about the
likelihood of causing injury. He noted that first degree arson
involved reckless threat to human life.
CHAIRMAN GREEN advised members that the primary intent of the
proposed legislation was to make juveniles responsible and
accountable for their acts, and make them realize what the
potential consequences might be, which was one of the reasons for
disclosing their names.
Number 656
REPRESENTATIVE PORTER expressed that the law, for the same offense,
would allow the substitution of "shed" with "bank". He explained
that if a person burglarized a bank and did not threaten anyone on
the way out, it would be a charge of 2nd degree burglary. It was
not a residence, the person was not armed and did not confront a
person.
REPRESENTATIVE CROFT pointed out that the definition of 1st degree
arson involves starting a fire, and by that act, recklessly places
another person in danger of serious physical injury. He advised
members that it would more closely parallel a crime against a
person. Representative Croft expressed that he was trying to find
the crimes that were the biggest threat to public safety. He
pointed out that what the amendment would provide was the capture
of both the shed and the nonviolent, non-dwelling place.
Representative Croft stated that the proposed amendment would allow
the department to work with the "shed" burglar by allowing the
ability to work with the individual to make them appreciate what
they had done and by keeping them out of the papers the first time,
there might not be a second time.
REPRESENTATIVE BUNDE pointed out that arson and burglary were
serious crimes and young people that seem to be involved in burning
things often had serious problems. He spoke against Amendment 2,
adding that he understood the intent of the proposed amendment;
however, when a young person was committing burglary or arson, even
though they were not hurting a person, that a call for help was
necessary. Representative Bunde noted that part of the purpose of
the proposed legislation was to discourage the young person from
getting involved in criminal acts, as well as to protect the
public.
Number 898
REPRESENTATIVE PORTER spoke against the proposed amendment,
pointing out that when they were talking about 1st and 2nd degree
arson, they were not talking about careless smoking juveniles, that
it would involve an intentional torch of a building. He stated
that burglary, statistically, if one could catch him or her, was
probably the fifth time the individual had burglarized.
REPRESENTATIVE JAMES agreed with the statements of both
Representatives Bunde and Porter, even though Representative Croft
did an excellent job of explaining the "shed" amendment.
Number 1024
REPRESENTATIVE ROKEBERG called for the question. Representative
Porter maintained his objection to the adoption of Amendment 2. A
roll call vote was taken. In favor: Representatives Croft and
Berkowitz. Opposed: Representatives Bunde, Porter, Rokeberg,
James and Chairman Green. Amendment 2, CSHB 6(JUD) failed adoption
REPRESENTATIVE CROFT moved Amendment 3, page 3, delete lines 6
through 8. Representative Porter and Rokeberg objected.
REPRESENTATIVE CROFT stated that the prior amendment affected both
the adjudication and adjustment categories; affecting the list for
both. He explained that Amendment 3 would only affect the
adjustment category and would not affect the petition category.
Representative Croft advised members that it would give the
division the ability to adjust the first time drug offender. He
noted that if the drug offense was serious enough that a petition
was filed, it would still remain on the list. Representative Croft
advised members that by deleting the drug crimes from the
adjustment category of required disclosures, it would allow the
division the discretion to see if they could work out an
arrangement with the child, rather than disclosing his name on a
first time drug offense.
REPRESENTATIVE CROFT stated that in talking with the department,
they had said that a minor theft crime and a first time drug
offense were two of the larger categories they found happening. If
the department was able to confront the child with what had been
done, and advise him or her of the possible consequences and
working with the first time offender without disclosing to the
community, they felt it would provide a better chance of
rehabilitating the juvenile.
REPRESENTATIVE JAMES expressed that her concern would be if it
actually was a first time offense or, in fact, the first time the
juvenile was caught. Secondly, she considered a crime involving a
controlled substance especially damaging, in particular who it was
being sold to.
REPRESENTATIVE BUNDE spoke against the amendment also, noting that
he saw a great deal of difference between possession and the intent
to sell.
REPRESENTATIVE BERKOWITZ stated that delivery could be as simple as
two persons sharing a joint which would be charged as a
misdemeanor. He noted that it would be felonious if it involved
one person carrying crack-cocaine for another person, so delivery
and the way it is argued in front of juries was entirely separate
from sale.
CHAIRMAN GREEN pointed out that the concept was a person involving
another person, which takes it out of incidental use or a mistake.
He stated that it was an overt act of taking an illegal product to
someone else, and should be worthy of note.
REPRESENTATIVE BERKOWITZ advised members that there was somewhat of
a disparity. He stated that if he handed someone a pencil, he
delivered that pencil. And in his mind, the receiver of the pencil
was equally culpable for accepting it; however, the legislation
would not reach the acceptor of the pencil because he did not
deliver the pencil.
Number 1262
The objections were maintained, so Chairman Green called for a roll
call vote. In favor: Representatives Croft and Berkowitz.
Opposed: Representatives Bunde, Porter, Rokeberg, James and
Chairman Green. Amendment 3, CSHB 6(JUD) failed adoption.
Number 1283
REPRESENTATIVE CROFT moved Amendment 4, CSHB 6(JUD), page 4, line
31, following "(1) has", insert good cause for not complying with
restitution payments or has. Representative Porter objected for
the purpose of discussion.
REPRESENTATIVE CROFT explained that he felt it was a technical
matter, but the amendment inserted language in the exoneration
clause and intended it to be identical language from the prior
restitution, rehabilitation and probation sections. In the prior
sections, it stated that if a juvenile violated his punishment or
penalty without showing good cause, that would become a new crime
and would be disclosed. Representative Croft felt there was good
reason to include good cause language because there could be a very
technical or minor violation of a restitution or rehabilitation
order and those should be taken into consideration.
Number 1362
REPRESENTATIVE PORTER removed his objection with the explanation
provided by Representative Croft. There being no objection,
Amendment 4, CSHB 6(JUD) was adopted.
REPRESENTATIVE BERKOWITZ requested a brief at ease for the purpose
of discussing a possible amendment.
CHAIRMAN GREEN called an at ease at 2:25 p.m. and called the
meeting back to order at 2:28 p.m.
REPRESENTATIVE CROFT moved Amendment 5, CSHB 6(JUD), page 3, line
12 following "the", delete [department files with the court a
petition seeking adjudication of the minor as] and insert court
adjudicates the minor; page 3, lines 14 and 23 following "minor's",
delete [alleged]; and page 4, line 4, following "minor's", delete
[alleged]. Representative Porter objected.
REPRESENTATIVE CROFT explained that Amendment 5 was discussed in
subcommittee hearings and would make the change of whether to
disclose at petition or adjudication. He stated that the
distinction was simply between an accusation by the department on
some evidence that the child had done something, and a finding by
the court that the child was, in fact, guilty. Representative
Croft stated that fundamentally, and more appropriately, was it
right to release a child's name at conviction rather than
accusation. He noted that in the adjustment phase the child had
admitted the charge.
REPRESENTATIVE BUNDE pointed out that the process the department
goes through was fairly lengthy and the public would not be aware
of an incident, in order to protect itself, for the period of time
the juvenile was going through the process and could operate in a
vacuum during that period of time.
REPRESENTATIVE KELLY agreed that there would be that concern. He
noted that the department and Representative Berkowitz had
expressed that there would be a log jam at petition because
everyone would attempt to take that route.
REPRESENTATIVE JAMES advised members that did present a concern
because she had the philosophy of innocent until proven guilty, and
she was having a struggle as to how she would vote on that
particular amendment.
REPRESENTATIVE KELLY pointed out that disclosure was not an imposed
sentence, but simply a disclosure of a juvenile's name, and he did
not believe the same equality of innocent until proven guilty
existed.
REPRESENTATIVE BERKOWITZ stated that if a juvenile self
adjudicates, it would accelerate the process and a log jam would
not occur that might otherwise take place with people backing up to
go to trial. He noted that if there was going to be a weakness in
the system because of a time delay, a situation would take place
where the defense bar would get together and jam the system,
because that was just the way it worked. Representative Berkowitz
stated that there were great odds for someone to be not guilty, and
that by itself, was an incredible reason to support Amendment 5,
adding that one out of 5 was a lot of people who were wrongfully
accused.
REPRESENTATIVE PORTER did not believe that one out of five of the
petitions filed involved an innocent person. He felt the vast
majority of the dismissals were because of some other reason.
REPRESENTATIVE CROFT advised members that he had heard two
rationales for the proposed legislation; protection of the public
and punishment for crimes committee, which were both articulated
reasons for disclosure. He stated that disclosure was a form of
punishment which was being delivered prior to a conviction.
Representative Croft stated with respect to public protection, that
in the area of petition to adjudication, the protection was in the
hands of the courts and whether they keep the individual
incarcerated or not. He pointed out that judges were making that
determination based on a threat to public safety.
REPRESENTATIVE CROFT agreed with Representative Porter in that it
was possible that not all 20 percent of the petitioned cases were
innocent; however, stated that was never what the state's
constitution had required and never the basis of the state's system
of government.
CHAIRMAN GREEN pointed out that they were not talking about
incarceration, but a notification for the purpose of public safety.
REPRESENTATIVE BUNDE called for the question.
REPRESENTATIVE PORTER maintained his objection, so a roll call vote
was taken. In favor: Representatives Croft and Berkowitz.
Opposed: Representatives Bunde, Porter, Rokeberg, James and
Chairman Green. Amendment 5, CSHB 6(JUD) failed adoption.
Number 1870
REPRESENTATIVE BERKOWITZ moved Amendment 6, CSHB 6(JUD), page 3,
line 8 and page 4, line 3, following the word "deliver" insert
other than an offense under AS 11.71.050. He pointed out that it
was a conceptual amendment in an attempt to ensure consistency with
the enumerated list of crimes in the proposed legislation. It was
his intent to make sure the crimes listed were all felony crimes.
He advised members that the amendment would delete the charge of
misconduct involving a controlled substance because that was not a
felonious charge. There being no objection, Amendment 6, CSHB
6(JUD) was adopted.
REPRESENTATIVE PORTER moved to report CSHB 6(JUD), Version "T", out
of committee as amended, with the attached fiscal notes and
individual recommendations.
REPRESENTATIVE ROKEBERG objected for the purpose of making a
statement. He advised members he was concerned with the fiscal
notes, and in particular, the ongoing costs and the downgrading of
a Superintendent II at the McLaughlin youth center. With that,
Representative Rokeberg withdrew his objection, so CSHB 6(JUD) was
reported out of committee.
HB 3 - DISCLOSURES RE FELONY ARRESTS OF MINORS
Number 2115
CHAIRMAN GREEN announced the next order of business would be HB 3,
"An Act relating to disclosures of information about certain
minors."
REPRESENTATIVE PETE KOTT, sponsor of HB 3, explained the
subcommittee on HB 3 met and the recommendation was to include the
list of offenses that are in HB 6. He said that is the only
addition to the committee substitute that is before the committee.
Number 2167
REPRESENTATIVE JAMES said as she understands, the two bills have
the same lists. She pointed out the committee did make some other
amendments to HB 6 and questioned whether it would be appropriate
to include those amendments in HB 3. She said HB 3 makes the
disclosure by the police department and HB 6 makes the disclosure
by the Division of Family and Youth Services (DFYS).
REPRESENTATIVE KOTT indicated that is correct. He said it is done
on arrest. The law enforcement agencies may release the
information. The bill does not directly have an affect on the
federal funding of the DFYS and it does not have the intent of
restructuring the DFYS. Representative Kott said, "The previous
version essentially said that any crime committed, if it would have
been a felony if committed by an adult would have been releasable,
would have fallen into that category. I think with the new list
that we have, some of the discussion that took place - one out of
five basically were found innocent. I would submit that if you
look at this list and compare this list with the number of folks
who have moved through the system, I would say it's going to be
very small."
REPRESENTATIVE JAMES indicated she had a problem with that because
she would like to see the CINA (Children in Need of Aid) and the
delinquency separated for other reasons than the committee has
heard.
TAPE 97-22, SIDE A
REPRESENTATIVE JAMES said the public wants this disclosure and if
the public didn't, the committee wouldn't be dealing with it. Not
only does the public want to know who these delinquent kids are out
there doing things, but they also want to know what the punishment
will be. She pointed out there is more than the public's right to
know as there is the punishment. She explained her concern is that
had there been a sufficient amount of penalty for bad behavior, as
determined by the DFYS in the courts up until now, we wouldn't have
had such a push from the general public. Representative James
explained a situation where she had a house sitter who kept a snow
machine in the garage and it was stolen. The kid who sold the snow
machine was caught driving it. The house sitter wanted to be sure
that kid was punished and filed a charge against him.
Representative James said absolutely nothing was done. The case
was turned over to the DFYS and absolutely nothing was done. She
noted she supports HCR 4, relating to separate records for
delinquents and CINA. Representative James said losing federal
funds never breaks her heart because there is always something you
have to do to get them.
Number 230
REPRESENTATIVE KOTT said the measure before the committee doesn't
carry a fiscal note. He said he thinks what Representative James
is talking about is having the punishment fit the offense at the
end. He said that's the reason why there is a public outcry for
the release of information at the beginning. If there was this
kind of punishment at the end, then perhaps the cry at the
beginning wouldn't have been so loud. If that's the case, he
doesn't believe splitting the DFYS is necessary in order to provide
that additional punishment.
REPRESENTATIVE PORTER explained one of the bills addresses
releasing general information by law enforcement and the other
addresses releasing information by the DFYS. Representative Porter
said by passing HB 3, it doesn't mean that they wouldn't pursue HB
6 and they could pursue both. The amendments made in the criteria
of HB 6 would be appropriate to make in HB 3.
REPRESENTATIVE PORTER made a motion to adopt CSHB 3, Version F,
dated 2/19/97.
CHAIRMAN GREEN asked if there was an objection. Hearing none, CSHB
3, Version F, was before the committee.
REPRESENTATIVE PORTER said he would like to make a conceptual
amendment to include, in the appropriate portions of the bill, the
amendments that were made to HB 6 in the similar provisions.
REPRESENTATIVE ROKEBERG asked if all of the provisions were
applicable.
CHAIRMAN GREEN said he thinks Representative Porter said "as
appropriate." Where the bill talks about a misdemeanor or a
felony, those would be sifted through by the drafter and that's not
a major issue. It is the intent. Chairman Green asked if there
was an objection to that concept.
Number 450
REPRESENTATIVE JAMES said she appreciated the comments by
Representative Porter that HB 3 and HB 6 are not mutually
exclusive. She said what her real belief is about this issue is
that it already distresses her to punish before they're proven to
be guilty. Representative James said, "I agree with Representative
Porter in his assessment of the discharge of some of these issues
that that is probably part of the reasons why were here today, is
because many of these offenses are not properly treated."
Representative James indicated if the young people had not been
getting away with these offenses over the years without any
apparent punishment, the public wouldn't be distressed. The public
wants it because they have the right to know and they want don't
want these kids to be harbored and protected. She said HB 3 and HB
6 doesn't do it for her. She stated she is "more happier with HCR
4 all by itself." Representative James said the DFYS and the
courts could have been doing a better job and they haven't been.
REPRESENTATIVE BERKOWITZ indicated the public is not universally
behind any idea of disclosure. He read from information on the
Governor's Conference on Youth and Justice titled, "Thoughts on
Confidentiality of Juvenile Delinquency Proceedings From Around the
State: Anchorage, report the incident but not the juvenile's name;
Bethel, don't publish names; Fairbanks, names in the paper may
create a hero syndrome; Juneau, do not publish names, it
stigmatizes the child; Ketchikan, too much is hidden now but
unfettered disclosure would create problems with labeling and
racial discrimination; Kotzebue, serious offenses in older kids
should be made public; Nome, want reporting of outcome, whether
names should be reported depends of seriousness of offense, age of
offender and whether this is a repeat offender." Representative
Berkowitz noted that the problem is in small towns where people
know of the incident already.
REPRESENTATIVE JAMES said she attended the Governor's Conference on
Youth and Justice and that is not what she heard. She noted she
has read parts of the information and that is not what she heard at
the conference. Representative James said she would have to
disagree that that was the message out of Fairbanks.
Number 707
REPRESENTATIVE CROFT said having voted to move HB 6 out of
committee, he questions the need for HB 3. As he understands, it
was originally meant as a way not to lose our funds. With the
passage of HB 6, it would mean that when a child admits guilt or
when there is such a frustration with it that they file a petition,
their name is going to be disclosed on identical standards. In
terms of either punishment or protection, he would question what
would be gained by doing that from arrest. There is a branch point
where both ends are covered fairly quickly with just a couple of
checks to make sure we have the right person. He said, "Why we
would need to disclose it at arrest when have that bill preceding,
I seriously question."
REPRESENTATIVE KOTT said he believes it is a policy call. If an
arrest has been made based on probable cause and based on the seven
listed items, he thinks there is substantially good evidence that
would be available. He noted probably most of the perpetrators
would have been caught in the act. Again, the operative word is
"may." If the law enforcement agency doesn't have a suspect or if
there is any question, he is sure they won't release the name.
They are not going to arbitrarily and capriciously release the name
of everybody they apprehend.
REPRESENTATIVE PORTER said the other difference between HB 3 and HB
6 is that it isn't a mandatory release. It says "may." He said it
would be his guess that most law enforcement agencies would utilize
the release in conjunction with contact and discussions with the
DFYS.
Number 860
REPRESENTATIVE BERKOWITZ asked what the liability would be to the
state if there is no probable cause for arrest and disclosure is
made.
REPRESENTATIVE PORTER responded, "The same liability that would
accrue, whether it was an arrest where there wasn't a release, you
have the potential for an improper arrest. If you have released
the name, I don't know that there is a distinction between an
improper arrest, in an adult's case whether the name was released
or not. I don't think that there is such a distinction and I don't
know that there would be with a juvenile."
REPRESENTATIVE CROFT said he thinks that is probably right. It
would be a question of greatly increasing the damages, but the
liability wouldn't be any different.
CHAIRMAN GREEN asked if there was any further discussion on HB 3.
There being none, he asked what the will of the committee was.
REPRESENTATIVE ROKEBERG made a motion to move CSHB 3(JUD), as
amended, out of committee with the accompanying zero fiscal notes.
CHAIRMAN GREEN said there was objection and asked for a roll call
vote. Representatives Porter, Rokeberg, James and Green voted in
favor of the motion. Representatives Croft and Berkowitz voted
against the motion. Chairman Green announced CSHB 3(JUD) was moved
out of the House Judiciary Committee with individual
recommendations.
HCR 4 - SEPARATE RECORDS FOR DELINQUENTS & CINA
Number 943
REPRESENTATIVE JAMES expressed that the committee had discussed HCR
4 extensively and moved to report CSHCR 4(JUD) out of committee
with individual recommendations. There being no objection, it was
so ordered. CSHCR 4(JUD) was reported out of committee.
REPRESENTATIVE PORTER felt that his presentation on HB 58 would
take at least a half hour, and with several members needed in other
committees, he would suggest the bill be held and brought up at the
next meeting.
CHAIRMAN GREEN agreed, HB 58 would come before the committee the
following Friday, February 22, 1997.
ADJOURNMENT
Number 1109
There being nothing more to come before the committee, Chairman
Green adjourned the House Judiciary Committee meeting at 2:59 p.m.
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