Legislature(1995 - 1996)
03/08/1995 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 8, 1995 1:15 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 COMMITTEE CALENDAR HB 13: "An Act requiring persons authorized to make or incur political campaign expenditures before filing for nomination to office and groups acting on behalf of them to file certain election campaign finance disclosure reports." PASSED OUT OF COMMITTEE HB 15: "An Act authorizing disclosure from court records of the name, address, and picture of, and other information about, certain minors for whom a delinquency petition is filed." HEARD AND HELD HB 38: "An Act relating to criminal sentencing; relating to the availability for good time credit for offenders convicted of certain first degree murders; relating to mandatory life imprisonment, parole, good time credit, pardon, commutation of sentence, modification or reduction of sentence, reprieve, furlough, and service of sentence at a correctional restitution center for offenders with at least three serious felony convictions; and amending Alaska Rule of Criminal Procedure 35." HEARD AND HELD * HJR 1: Proposing an amendment to the Constitution of the State of Alaska relating to repeal of regulations by the legislature. HEARD AND HELD (* First public hearing) WITNESS REGISTER JEFF LOGAN, Legislative Assistant Representative Joe Green State Capitol, Room 24 Juneau, AK 99801-1182 Telephone: (907) 465-4931 POSITION STATEMENT: Testified in favor of CSHB 13. BROOKE MILES, Juneau Branch Administrator Alaska Public Offices Commission Department of Administration P.O. Box 110222 Juneau, AK 99811-0222 Telephone: (907) 465-4865 POSITION STATEMENT: Testified in favor of CSHB 13. REPRESENTATIVE GENE THERRIAULT Alaska State Legislature State Capitol, Room 421 Juneau, AK 99801-1182 Telephone: (907) 465-4797 POSITION STATEMENT: Sponsor of HB 15 MARTHA HOLMBERG, Social Services Program Officer Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, AK 99811-0630 Telephone: (907) 465-3023 POSITION STATEMENT: Provided information on HB 15 CHRIS CHRISTENSEN, General Counsel Alaska Court System 303 K Street Anchorage, AK 99501 Telephone: (907) 264-8228 POSITION STATEMENT: Provided information on HB 15 LAURIE OTTO, Deputy Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Provided information on HB 38 JERRY LUCKHAUPT, Legal Counsel Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, AK 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Provided information on HB 38 RANDALL BURNS, Executive Director Alaska Civil Liberties Union P.O. Box 201844 Anchorage, AK 99520 Telephone: (907) 276-2258 POSITION STATEMENT: Testified against HB 38 BARBARA BRINK, Deputy Director Alaska Court System, Public Defender Agency 900 West Fifth, Suite 200 Anchorage, AK 99501 Telephone: (907) 264-4400 POSITION STATEMENT: Testified against HB 38 PREVIOUS ACTION BILL: HB 13 SHORT TITLE: CAMPAIGN DISCLOSURE REPORTS SPONSOR(S): REPRESENTATIVE(S) GREEN,Bunde JRN-DATE JRN-PG ACTION 01/06/95 23 (H) PREFILE RELEASED 01/16/95 23 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 24 (H) STA, JUD, FIN 01/19/95 88 (H) COSPONSOR(S): BUNDE 02/07/95 (H) STA AT 08:00 AM CAPITOL 102 02/07/95 (H) MINUTE(STA) 02/08/95 263 (H) STA RPT CS(STA) 7DP 02/08/95 264 (H) DP: JAMES, PORTER, GREEN, IVAN 02/08/95 264 (H) DP: ROBINSON, WILLIS, OGAN 02/08/95 264 (H) FISCAL NOTE (ADM) 03/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 15 SHORT TITLE: PUBLIC DISCLOSURE OF MINORS COURT RECORDS SPONSOR(S): REPRESENTATIVE(S) THERRIAULT,Rokeberg,Bunde,Toohey JRN-DATE JRN-PG ACTION 01/06/95 24 (H) PREFILE RELEASED 01/16/95 24 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 24 (H) HES, JUD, FIN 01/19/95 88 (H) COSPONSOR(S): BUNDE 01/27/95 161 (H) COSPONSOR(S): TOOHEY 02/07/95 (H) HES AT 03:00 PM CAPITOL 106 02/07/95 (H) MINUTE(HES) 02/08/95 264 (H) HES RPT 2DP 1DNP 3NR 02/08/95 264 (H) DP: BUNDE, TOOHEY 02/08/95 264 (H) DNP: ROBINSON 02/08/95 264 (H) NR: ROKEBERG, G.DAVIS, BRICE 02/08/95 264 (H) 8 FISCAL NOTES (DHSS) 02/08/95 264 (H) ZERO FISCAL NOTE (LAW) 02/08/95 264 (H) REFERRED TO JUDICIARY 02/23/95 (H) MINUTE(HES) 02/23/95 (H) MINUTE(HES) 03/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 38 SHORT TITLE: SENTENCING;3RD SERIOUS FELONY OFFENDER SPONSOR(S): REPRESENTATIVE(S) BUNDE,Toohey JRN-DATE JRN-PG ACTION 01/06/95 30 (H) PREFILE RELEASED 01/16/95 30 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 30 (H) STA, JUD, FIN 01/20/95 105 (H) COSPONSOR(S): TOOHEY 02/09/95 (H) STA AT 08:00 AM CAPITOL 102 02/09/95 (H) MINUTE(STA) 02/10/95 295 (H) STA RPT 4DP 3NR 02/10/95 295 (H) DP: JAMES, PORTER, GREEN, OGAN 02/10/95 295 (H) NR: ROBINSON, IVAN, WILLIS 02/10/95 295 (H) FISCAL NOTE (CORR) 03/08/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HJR 1 SHORT TITLE: REPEAL OF REGULATIONS BY LEGISLATURE SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Rokeberg,Brice,Green JRN-DATE JRN-PG ACTION 01/06/95 16 (H) PREFILE RELEASED 01/16/95 16 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 16 (H) STATE AFFAIRS, JUDICIARY 01/18/95 73 (H) COSPONSOR(S): GREEN 02/07/95 (H) MINUTE(ARR) 02/14/95 (H) STA AT 08:00 AM CAPITOL 519 02/14/95 (H) MINUTE(STA) 02/23/95 (H) STA AT 08:00 AM CAPITOL 102 02/23/95 (H) MINUTE(STA) 02/28/95 (H) STA AT 08:00 AM CAPITOL 102 02/28/95 (H) MINUTE(STA) 03/01/95 519 (H) STA RPT 3DP 2NR 03/01/95 519 (H) DP: JAMES, PORTER, GREEN 03/01/95 519 (H) NR: ROBINSON, WILLIS 03/01/95 520 (H) FISCAL NOTE (GOV) 03/01/95 520 (H) ZERO FISCAL NOTE (LAW) 03/01/95 546 (H) FINANCE REFERRAL ADDED 03/08/95 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 95-26, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:15 p.m. on Wednesday, March 8, 1995. All members were present. CHAIRMAN BRIAN PORTER stated that the following bills would be heard: CSHB 13, HB 15, HB 38 and HJR 1. He announced that CSHB 13 would be heard first. The meeting was teleconferenced to Anchorage. HJUD - 03/08/95 CSHB 13 - CAMPAIGN DISCLOSURE REPORTS JEFF LOGAN, Legislative Assistant to Representative Joe Green, introduced HB 13. Sponsor Statement: "HB 13 makes it easier for the public to know who is contributing money to non-party candidates for statewide office. "Problem: Currently, non-party candidates for legislative office who gain access to the general election ballot by going through the petition or write-in process are not required to file campaign finance disclosure reports during the primary election cycle. Alaska Public Office Commission Policy Decision 15.13-82-2 sets requirements for these candidates. "The Commission has ruled that non-party candidates, groups formed to influence the outcome of ballot issues not appearing on the primary ballot, and political party subdivisions and multi- candidate PAC's which do not make expenditures to benefit a candidate on the primary ballot "...need not file either Primary or General Election reports so long as their only activity during those reporting periods is the receipt of contributions or the expenditures of funds for administrative purposes. "When a campaign-related expenditure is made, the reporting cycle is triggered. Until that time, the public has no idea who is contributing money to non-party candidates. "Solution: HB 13 requires prospective non-party candidates for legislative offices to disclose to the public, during the primary election reporting cycle, who is making campaign contributions to them." Number 240 BROOKE MILES, Juneau Branch Administrator, Alaska Public Offices Commission, Department of Administration, explained why there was a positive fiscal note, originally. The existing language in the draft required all individuals who had a letter of intent on file, including people who were going to run for municipal office, to file reports during the primary cycle. Instead of an estimated 20 additional reports, this would generate something like an additional 300 reports. There is a zero fiscal note on the State Affairs committee substitute, however. The Alaska Public Offices Commission supports this legislation. REPRESENTATIVE CON BUNDE made a motion to move CSHB 13 (STA) with individual recommendations and the zero fiscal note. REPRESENTATIVE AL VEZEY objected. There was a discussion on existing requirements for filing by nominating petition and by general election ballot. Representative Vezey then removed his objection. After no further discussion or objection, the bill moved. HJUD - 03/08/95 HB 15 - PUBLIC DISCLOSURE OF MINORS COURT RECORDS Number 400 REPRESENTATIVE GENE THERRIAULT, bill sponsor, introduced HB 15. Sponsor Statement: "This legislation is intended as an intermediate step in the juvenile justice system that goes beyond the degree of punishment currently possible, but stops short of prosecution as an adult. It would allow the State, under certain strict circumstances, to release the names of juvenile offenders. "With varying degrees of exceptions, most states require a court order to release the names of juvenile offenders. Recently, however the trend has been toward cracking that confidentiality. In 1993, according to the National Conference of State Legislatures, Kansas approved a law that allows officials to publicize the names of juveniles over the age of 13 who are convicted of certain violent crimes. In 1990, Rhode Island opened the records of juveniles who are over 15. In May 1994, Illinois legislators overwhelmingly approved a measure to make public the names of juveniles convicted of crimes involving guns, gangs or felony drug violations. "In Alaska, prior to 1994, the law contained a little-used provision that allowed publication of the name of a minor who committed two offenses classified as felonies. Last year, Senate Bill 54 replaced that provision with one that prohibits disclosure of the name or picture of a minor under the jurisdiction of the court in connection with the minor's status as a delinquent child unless authorized by order of the court. House Bill 15 would again allow the State to disclose the name, address and picture of a minor following a second felony offense unless the court entered an order barring disclosure "for good cause shown in individual cases." "The current shield of anonymity and lack of serious penalties foster the perception among many young adults entering the justice system that they can get away with anything. This reinforces criminal behavior that continues into adulthood, where the consequences are far more serious. "Tight confidentiality laws have been near the center of America's juvenile justice philosophy for decades. However, society has changed since juvenile justice systems were created around the turn of the century, and it is time for law enforcement to change as well. This small step toward lifting the privileged status of a juvenile, when that juvenile has willingly and repeatedly broken the law, is a reasonable step in that direction." REPRESENTATIVE THERRIAULT agreed wholeheartedly with a comment Governor Knowles made in his "State of the State Address." In talking about his crime package, he said, with regard to the crackdown on youth violence, "We have lost from the 'Leave it to Beaver' era, for thugs from the 'Terminator' age." We must give police and prosecutors the tools to attack gangs and youth violence and to increase parental accountability. That is part of what this bill does. What they are basically trying to do with HB 15, is return a section of statutes that was deleted when SB 54 was passed last year. He actually took place in the deliberation of that last year, but the way the bill was drafted, the existing language was deleted and replaced by a whole new section. Rather than having existing language in the bill bracketed, to show what was going out, it was just nullifying these sections, and a number of the members did not, at that time, quite understand what the impact would be. What we want to do is basically replace that. The confusion stemmed from the fact that it was unclear whether it was an agency that controlled the release of the information or the Court System. What SB 54 did, was break that into two separate sections. Now you have the agency records, with its rules, and you have the Court record, with its rules. Specifically with the court records, we are attempting to return to the allowance for information being released for second felony offenses, unless the court specifically finds just cause not to release the information on a particular case. The reason for putting it into the court section is that there are confidentiality requirements in the 1972 Social Security Act that limit the release of information from the state agency files. To try and get around that, he asked that it be specifically over on the court side. REPRESENTATIVE THERRIAULT added that a number of fiscal notes indicate that passage of this legislation may jeopardize up to $6,000,000 in federal funds. He felt these fiscal notes to be in error, and was hoping to have a legal memo from Washington D.C. today that would have clarified that. What we have found out is that there is a difference of opinion between Region 10 of the federal health and social service agencies and other regions of the nation. We have asked for clarification. If in fact, this would jeopardize those funds, there are a number of other states who have already jeopardized their funds and would be on the verge of losing those federal funds. But that is not so. Colorado law calls for exactly what we are asking for in HB 15. There has been no loss of federal funds. Kansas and Illinois laws are very specific about making information available, and none of these states indicated that there has been any loss of federal funds. REPRESENTATIVE THERRIAULT continued, saying that the new law we enacted last year said that the name or picture of a minor under the jurisdiction of the court may not be made public in connection with the minor's status as a delinquent child or adult in need of aid, unless authorized by the courts. It is my understanding that the argument about the potential loss of federal funds is based on release of any information, although our current statute which we just passed says that the courts can make a finding and can release that information. REPRESENTATIVE THERRIAULT was given a memo at this point in the meeting, clarifying what they were discussing. The memo was addressed to Richard McConnell, Branch Chief of Region X, Administration for Children and Families, Seattle. It was from Carol Williams, at the Associate Commissioner's Office of the Administration on Children, Youth and Families in Washington D.C. Number 540 CHAIRMAN BRIAN PORTER clarified that we cannot release information that is in their file, but if somehow, totally independently, another file were started, that would be up to us whether or not we wanted to release it, under state law. REPRESENTATIVE THERRIAULT stated that was his interpretation too. In addition, the court system just put out a new fiscal note, with regards to the number of records that would be impacted. Page 2 of the fiscal note shows that in fiscal year 94, petitions were submitted to the courts from 65 juveniles whose records would be subject to disclosure. There is some question about the fiscal impact with regards to the number of records that would be affected by the passage of HB 15. Number 560 MARTHA HOLMBERG, Social Services Program Officer, Division of Family and Youth Services, Department of Health and Social Services, said she had not had the opportunity to read what had just been distributed, but she understood that any information given by their division to the court, binds everyone who receives it to confidentiality, so the receiver cannot release the information. CHAIRMAN PORTER mentioned that the criminal records we are talking about releasing, are not tied to the programs that they are saying require confidentiality about those program records. He did not think there was anything in this bill that would indicate a desire to release those. MS. HOLMBERG stated she felt the bill would still impact their federal receipts, because it is not clear that the information would be brought to the public through any vehicle other than the Division of Family and Youth Services. She thought the Department of Law should be the distributor of the information. CHAIRMAN PORTER asked her to read the letter from the Administration for Children and Families, Washington D.C., to see if that would help clear it up for her. CHRIS CHRISTENSEN, General Counsel, Judicial Branch, Alaska Court System, reminded committee members, as a matter of policy, the Supreme Court takes no position on legislation, other than legislation which directly affects the internal operation of the Judicial Branch. He said he would give the committee an idea of how much it would cost the Court System, and also make some technical suggestions, but would take no position. He first described some basic problems that exist with the court system's juvenile records as they relate to this piece of legislation. MR. CHRISTENSEN explained that first of all, the members need to understand the limitations of the court's records. Our records are not computerized, they are purely paper files. Even the indexes are not computerized, so any information requires a clerk to do a manual index review, and then a manual file review to see what is in the file. Some of these files are quite thick, even on young kids. There is no statewide record suppository, or statewide index. There are 15 Superior Court locations which do juvenile cases, which means if you want to know something about a particular kid's record, you have to contact all 15 courts, because the court in Anchorage might not have any idea that the kid who had previously lived in Fairbanks had a record there. Alternatively, you could contact one court, and that court could contact the other 14 courts. According to statistics provided by DFYS, in FY 94 there were only about 65 juveniles whose records would be subject to disclosure by HB 15. That does not sound like many files. The problem is, we have a juvenile population, ages 9 through 18, of about 75,000 kids; and there are scores of thousands of young adults who are only a few years out of that age range. Now this is actually the potential group about whom records requests can be made by the public. Statewide, the courts receive about 3,500 written requests per year for an adult's criminal record. We only will accept a written request if the person is out of state or lives in a community other than where the courthouse is located. Far more individuals and businesses perform criminal records research in person. In Anchorage alone, for example, roughly 75 people a day come in and look through our index, and then ask to see criminal files. They ask to look for a total of about 500 criminal files per day. If you multiply that times 260 official state work days, that is a lot of file requests. With adults, the only work the court clerk has to do is run back to the archives and retrieve it for the requester. With juvenile records, the clerk would have to look through the index, because most of the names in the index are confidential. The clerk would have to go get the file, and look through it to see what was in it. Understand that our counter clerks are range eight's, and a range eight clerk is not going to be qualified to actually look through a file and determine what is in it. That will have to be handed off to one of the range 12 legal technicians, of which we do not have too many. At that point, the person is going to have to start calling the other 14 courts to determine if there was a first felony conviction someplace else. This is something that is going to take very long, is very complex, and will have to be done many times, even though there are only going to be 65 kids a year about whom the information will ultimately be released. MR. CHRISTENSEN said there is one way to eliminate our note, and another way that would decrease it by about 90 percent. To eliminate it, we would have DFYS administer the program, or else the Department of Public Safety, through the Alaska Public Safety Information Network (APSIN) computer system. DFYS has a statewide computer. Of course, it is much cheaper to have a range six clerk type a name into a computer and get a printout with the information, than to have a range 12 clerk calling all over the state looking for records. Up until now, we have never placed juvenile's records in APSIN. This has always been a very significant issue. As you know, on July 1 of this year, the adult criminal records in APSIN are going to be made available to the public for the first time. It would be possible to take this list of 65 kids that is generated each leap year, provide it to the Department of Public Safety, and then anyone with a question could go to them, and they could punch a name into a computer. This whole issue of where best it should be done, is tied into the loss of federal funds. He briefly skimmed the memo from the Administration for Children and Families, in Washington D.C., stating that it appears to say that any records we received from DFYS, we cannot release. All the information we have in our files, we get from DFYS, because they are the prosecuting authority. They tell us who the kid is, where he lives, what he is accused of doing, and provide all the backup. He did not know for sure that the memo would allow us to do what this bill requires. MR. CHRISTENSEN stated the other way to decrease our fiscal note by 95 percent; as the bill is drafted, it can probably be read as to applying retroactively to all of those case files which currently exist. That is where we have the problem with going back into old files and looking up names. If we applied this only to kids who were accused of a second felony, from the effective date of the bill on, as each of these 60 files comes into existence, over the next year we would simply take a sheet of paper which has the kid's name and address on it, and what the accusation is, and put it in a ring binder at the front counter; so anyone could look through it to see if a kid they were interested in, was in it. That would be a relatively inexpensive thing to do. What he understood the purpose of this legislation to be was to create an additional consequence, so that kids will be deterred from committing crimes. We cannot deter kids who have already committed a crime, but we can deter those 65 new kids we are going to generate this year, perhaps. MR. CHRISTENSEN noted the bill does have one technical problem. It requires a judicial determination at the time of filing. Judges do not look at the case at the time of filing. They do not look at the case file until the initial arraignment. An additional problem is, we perceive this as a serious consequence, but, if the judge makes this determination at the time of filing, that is before the kid even has an attorney, or a guardian ad litem, or a parent involved, the kid has no way to object to this release. Even though the bill says the judge is supposed to make a judicial determination at the time of filing, judges will not do so until the time of arraignment, for legal and practical reasons both. The bill could be redrafted to simply provide for that, to avoid any confusion in the future. In each of these 65 cases, the judge is going to have to make a good cause determination as to whether or not the kids should have the files released. He had talked to Bill Hitchcock, Standing Master in Anchorage, who handles one half of all the juvenile felonies in the state. Mr. Hitchcock does not expect that to take much time. For most of these kids, you can probably make that decision in under 15 minutes, just by seeing what they have done before, and what they are accused of now; therefore costs have not been included in the fiscal note for additional judicial time to make that determination. Number 720 REPRESENTATIVE VEZEY felt the bill was too soft on juveniles. Would it make life easier for the people in the court system to delete all reference under subsection (d)(2)? This would make any delinquent court record public information. MR. CHRISTENSEN said yes and no. Adult files used to be completely open until the Victims Rights Act was passed about 5 years ago, which made certain parts of adult records closed. Our costs to implement that, which are not funded, have proven to be about $120,000 to $150,000 a year of excess clerical time, just to distinguish between those parts of adult files that are closed, and are open. The only reason our costs are so low, is because we figured out a sneaky way to get the attorneys to do about 85 percent of the work. Otherwise, our costs would be too much to imagine. If juvenile files were essentially open, that would be less expensive than having them partially open and partially closed. What you would see, however, is a violation of the constitutional right to privacy. This right includes rehabilitation as a factor that must be considered. A complete opening of juveniles records would be challenged almost immediately. There is a difference between saying the records of a 17 year old serial rapist should be open, versus saying the records of a nine year old shoplifter should be open. There is a difference in terms of potential rehabilitation, and right to privacy. Clerical costs would be less, but you would be opening up a big can of worms. Number 760 REPRESENTATIVE BUNDE asked if we were putting a bandaid on this problem. Would it be a cleaner approach to solving the problem if the juvenile services were transferred to the Courts? Number 775 MR. CHRISTENSEN was told by the folks in Washington D.C., that the reason Alaska has previously been told by Region 10 that they could not make their juvenile records public, like some other states have, is because Alaska is one of a very few states that has the delinquent cases and the "child in need of aid" cases in the same agency. In most states, they are in two separate agencies, or else one program is administered by the county while the other is handled by the state. Because ours are all under the same state agency, we cannot release the records. The problem with transferring part of it to the Court System, is that, as a matter of separating powers, you cannot have the prosecuting authority also be the judicial authority. In many states they make the separation by putting one part into DFYS, and the other into Corrections. REPRESENTATIVE BUNDE said he mis-spoke, he actually meant Corrections, not the Courts. While that is a much larger policy call, that would solve the problem of confidentiality. MR. CHRISTENSEN understood it would, but he had not examined that memo from Washington D.C. in any detail yet. Number 800 CHAIRMAN PORTER said it was obvious there were a couple of things they needed to fix in the bill. He asked Martha Holmberg how the files worked within DFYS. Would there be one file per child, regardless of what activity, through your jurisdiction, fell on that child? Would a child receiving aid who committed a felony, have all of that information in the same physical file? Number 810 MS. HOLMBERG answered it may not go into the same physical file, but there would be an additional file if there is a petition for adjudication of delinquency. There would probably be two separate files, but they would probably be combined as the jurisdiction and supervision went to the youth probation section of the division. CHAIRMAN PORTER said the intent of the federal legislation seemed to be to keep the names of juveniles who are receiving this federal aid, confidential. MS. HOLMBERG thought that was correct. Even though the bill is not specifically asking for information on whether or not a child is receiving aid, by virtue of what the bill is asking for, if the court received the information from the division, the court must abide by confidentiality regulations. LAURI OTTO, Deputy Attorney General, Department of Law, Criminal Division, felt this was an unfunded mandate. This is an area where the federal government has decided on certain policies they want the states to follow in exchange for receiving federal funds. They are saying if we are giving this kind of federal money to an agency, you have to have certain confidentiality provisions in place. The restrictions apply to an agency as a whole, regardless of whether a particular child is receiving funds. MS. OTTO said the way to solve the problem would be to move juvenile probation out of DFYS into a completely separate agency. One of the problems with doing that, is that, not surprisingly, there is a very high percentage of children in need of aid who then become juvenile delinquents. We do not have a system in the juvenile area with graduated penalties for degrees of offense, like we do for adults. It is all designed on an individual basis to try to figure out what is best for each child, and so they rely heavily on their information from the "child in need of aid" files. MS. OTTO continued, stating that as a prosecutor, she had experienced a great deal of frustration with DFYS, trying to get information from them that she felt was essential to be able to make decisions on how to handle cases on these kids who come into the adult system. We get the same answer you are hearing here. There are tight restrictions on what you can do. She felt Representative Therriault was committed to work through the problems without jeopardizing the funds. We are really willing to work with him. TAPE 95-26, SIDE B Number 000 CHAIRMAN PORTER said there has to be a way to construct DFYS records so that you can keep certain files private, and still be allowed to obtain other information. Number 035 REPRESENTATIVE THERRIAULT said when they initially contacted the Department of Corrections, the response was very favorable, then after contacting Region 10, they decided to reconsider. He would like to try and figure out a way to make this work. His concern is that we have a system that reinforces juvenile delinquency. It allows them to commit the same crimes for years, and then we slam them into an adult jail when they reach a certain age. CHAIRMAN PORTER totally agreed. Nobody wants to publicize the nine year old shoplifter, but the second time armed robber is benefitting from the cloak of confidentiality and knows it. He announced the bill would be held over in order to provide time for revisions. HJUD - 03/08/95 HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER Number 275 REPRESENTATIVE BUNDE, sponsor of the bill, described his bill. Sponsor Statement: "HB 38 provides a mandatory 99-year sentence for a specific group of offenders who have two separate prior class A or unclassified felony convictions. "Under this proposed legislation discretionary parole and good time sentence reductions are not available to offenders who are sentenced to a 99 year term. However, HB 38 allows those with a 99-year sentence to ask the court for a reduction in sentence after they have served 50 years of their sentence. This provision is similar to what is allowed when a murderer is convicted of a 99- year sentence. "This proposed legislation gives prosecutors some discretion in the decision to pursue the 99-year sentence. This will avoid unjust results in certain cases where the evidence may be weak. This provision will also allow the prosecutor some flexibility to proceed with the normal presumptive sentencing provisions when necessary. "There is a cost for keeping a person incarcerated for 99 years. This legislation is crafted to keep the cost to a minimum and save the state money. Strong punishments can shape behavior and deter crime. Offenders may find they want to move to a state without a 3 strikes statute. Some offenders may decide the third strike is not worth the rest of their life, and change their behavior. Additionally, studies have shown that the recidivism rates for three time offenders let back into society are between 65-76 percent. These offenders are taking up costly time in our judicial system by committing the same crimes again and again. If the revolving door is stopped the associated costs will decrease. "It is time to close the revolving door too many repeat offenders depend upon. This proposed legislation will make our state a safer place. I urge your positive consideration of this legislation." Number 380 REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of Section 6. JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services, described Section 6. He said Section 6 is the statutory meat of the bill, where we get started into what the sentence structure will be. What we are doing is creating another way for people to be sentenced, whose current conviction is their third most serious felony conviction. "Most serious felony" is defined through Section 6. What has to occur to receive this 99-year sentence for this third most serious felony conviction, is that the prosecutors must provide notice that they intend to seek a 99-year sentence. Then if the person is convicted of that crime, and the judges, without discretion, do sentence the person to another sentence, other than this mandatory 99-year sentence; we use those same exceptions in the murder statute. There are one or two other provisions in our standard sentencing provision of 12.55. Section 7 of the bill adds in provisions for how you determine when something is a previous most serious felony conviction for establishing that the person has two previous convictions. This bill, as it progressed last year, was modified so that each of the convictions had to have occurred as part of a separate criminal escapade. The first two convictions had to have occurred at different times, and both convictions must have occurred before the current conviction. MR. LUCKHAUPT explained Section 8 of the bill. In order to work in the language about how we are going to allow someone to challenge these previous convictions, and we have this new term "most serious felony," we basically had to rewrite the section. It deals with the procedure of how a defendant can challenge these convictions. MR. LUCKHAUPT explained Section 9. It deals, again with how the defendant is able to challenge the convictions of whether or not one of the previous convictions is a most serious felony conviction. MR. LUCKHAUPT explained Section 10. It adds a new subsection to clarify when a previous conviction is counted as a previous conviction. Last year when we were doing this bill, we discovered that our current statutes are not clear. In all cases when we are trying to determine when a prior most serious felony conviction or any prior conviction should be counted as a prior conviction. This was the language we developed with the Department of Law to clarify, not only the situation presented in this bill, but the situations presented across the board in all of our criminal sentencing schemes where a previous conviction increases the penalty. MR. LUCKHAUPT explained Section 11. It is an aggravating factor that can be used for offenses to increase the presumptive term. That is basically a technical change we are making. MR. LUCKHAUPT explained Section 12. It defines "most serious felony." It means any unclassified or class A felony, which are the crimes that the legislature has determined to be the most heinous of crimes, and it is only unclassified and class A felonies prescribed under AS 11, under our criminal code, or an attempt, or conspiracy, or criminal solicitation to commit any of those crimes. The attempts, conspiracy, and criminal solicitation to commit a class A felony, are punishable as class B felonies, normally. MR. LUCKHAUPT explained Section 13. It provides that, just like with prisoners who are sentenced to 99 years for certain types of murder, they are not eligible for discretionary parole during the entire term. We mirror that with these 99 year sentences, so that anyone convicted here is not eligible for discretionary parole. REPRESENTATIVE FINKELSTEIN asked about page 7, lines 6 and 7. It says that prisoners are not eligible for a good time deduction if they have been sentenced to this mandatory sentence. MR. LUCKHAUPT said last year a decision was made in one of the committees that we are eliminating good time for people receiving 99 year sentences for being habitual criminals under this bill. People receiving 99 year sentences for murders in the first degree were eligible for good time, and that did not seem to make much sense that we could not get good time here, but they could get good time under a 99 year sentence in that situation. The decision was made to eliminate good time for both classes of criminals, and to do that, to avoid this being an ex post facto law, where we are increasing a criminal punishment after the crime has been committed, and after the person has been sentenced; that we can only eliminate good time for people receiving murder sentences for offenses that are committed after the effective date of this act. So those people with 99 year sentences who committed their offenses before the effective date of this Act would still be eligible for good time, since good time is considered to be a reduction of sentence, in the federal courts, and most state courts. The United States Supreme Court has found that good time is a reduction of sentence, so any time the legislature tries to take away good time, or lessen its affect, that represents an unconstitutional ex post facto law. Number 560 CHAIRMAN PORTER asked about the provision for judicial review at a certain age. MR. LUCKHAUPT answered that provision is in Section 5. It was put in when they adopted the mandatory 99 year sentences for certain first degree murders, and it was felt that there should be a way for that sentence to be modified at some point in time. Section 5 of the bill provides that a defendant can file a motion for sentence reduction after they have served half of the mandatory 99 year sentence. The decision was made in this bill, to match that, and to provide a bit of leniency here, to allow people with a 99 year sentence to apply to the court for a sentence reduction. CHAIRMAN PORTER asked if he would consider Number 3 of Section 6, "...a prisoner for prescribed mandatory term may not otherwise be reduced..." as inconsistent with that provision? MR. LUCKHAUPT said not necessarily. While we actually have not been able to apply that provision to these other 99 year sentences yet, he would not say that it is implicative, since this other subsection is in the same section of the bill. They are read together. In one situation, legislature is saying that you can never reduce the sentence, but we are also providing, in the same section of the bill, a way to do that. The proper way would be to say, "notwithstanding that provision," we can provide for the sentence reduction. That was not done in 1990, and so it has not been done here. It may not be entirely necessary to do that. Basically, this provision would mean nothing if you did not read these two provisions together, to allow something to occur, which, when you look at the rules of statutory construction, the legislature intends, all of their acts, by enacting this provision to allow a sentence reduction after 49 and 1/2 years. They enacted that knowing this other section was out there. You have got a duplicate provision of this language that would apply to those mandated 99 year murder sentences, in statute now. That was not a problem when we enacted in 1990, and he would not anticipate it to be a problem in this case either. CHAIRMAN PORTER said he would like a bill they did not have to argue about. REPRESENTATIVE BUNDE said some people would observe this as the geriatric provision, for a number of reasons. Perhaps a 65 or 70 year old is no longer a danger to society. CHAIRMAN PORTER wanted to make sure they could still use that provision. REPRESENTATIVE FINKELSTEIN asked, under the presumptive sentencing, which of those are subject to the three judge panel if you are trying to appeal a presumptive sentencing for 99 years for some other crime. Do we have a three judge panel that applies to all of those? How do you appeal the existing presumptive sentences? MS. OTTO, Deputy Attorney General, Criminal Division, answered that right now, if you are subject to a presumptive sentence, and there are no aggravating or mitigating factors, you can ask the court to refer the case to the three judge panel. That would be for sentences that fall under the normal presumptive sentencing statutes. This is not a normal presumptive sentence, this is a mandatory sentence, as is the other mandatory 99 year sentence, and the three judge panel does not apply to those cases. This is taking away judicial discretion to deviate from the sentence that the legislature laid out. REPRESENTATIVE FINKELSTEIN asked if for these kind of life imprisonments, there was any sort of court standard or expectation of due process for these higher levels of sentencing. He thought you had to have an appeal route. MS. OTTO answered the court usually defers to the legislature in determining the kind and length of sentence that should be imposed. They do their best to put in procedures to make the process constitutional, so that in imposing a sentence, somebody would have to be given the right to be heard, and would have to be able to be represented by counsel and all of the other procedural protections that we impose, but the legislature has the ability to set a particular sentence for a particular offense. REPRESENTATIVE FINKELSTEIN asked if there had been any court rulings that say it is a violation of due process, or cruel and unusual punishment if you use presumptive sentencing regardless of the circumstances. MS. OTTO said she knew there were challenges being made to "three strikes and you're out" statutes in other states, based on exactly that argument; but to her knowledge there has been no such ruling in Alaska. MS. OTTO then gave her testimony, after answering Representative Finkelstein's questions. She started working in prosecution in 1978, she has been an assistant district attorney, district attorney, and chief prosecutor. She has testified before the legislature on behalf of the Department of Law for many years in favor of prosecution legislation. She now supervises the district attorney's offices in the state. She has been described by some people as never having met a tough criminal bill that she did not like. She believes strongly in protecting the public through tough criminal legislation. She felt this bill was rational in that it narrowly targets the kind of offenders that really are getting long sentences. It is clear that Representative Bunde has put a lot of work into the language. She was frustrated with the bill, however, and she had been working on it for a couple of days. The Legislature has before it a supplemental for the Department of Corrections to make it possible for them to keep the people who are in custody now, incarcerated. The amount of cuts that are being made to the Department of Corrections are such that what we are talking about right now, is letting every single misdemeanant out, and not incarcerating anybody else who is being sentenced for a misdemeanor for the rest of the fiscal year, because we do not have the money to keep facilities open, to keep them in jail. So she has been trying to figure out the legal process that we need to go through to have that happen. She is very bothered by this. She thinks they have laws like DWI and domestic violence, all the misdemeanor crimes that we have, for a reason. She thinks people need to go to jail for those. She thinks people need to stay in jail for those. If you do not have penalties for people when they are committing minor crimes, you have people cycling out of control, and they think they can get away with things, and that there will not be any penalty. The reality is, unless the legislature appropriates the money that is necessary to keep these very expensive correctional facilities operating, we cannot put people in jail, or keep them in jail. REPRESENTATIVE BUNDE observed that last year in another body he was asked if he was personally willing to pay taxes to support a bill like this, and he certainly is. We are talking about hardened criminals, and a lot of Ms. Otto's frustration comes from the incarceration of people who are not going to fall into that category. Before we need to build more prisons, the public has to perceive the need, before they support building prisons. He is talking about 5 or 6 hard core, habitual criminals that are not going to overwhelm the correction system the way we are being overwhelmed by these misdemeanants, who are in a different category. CHAIRMAN PORTER noted it was not his intention to pass the bill out of committee that day. Number 830 RANDALL BURNS, Executive Director, Alaska Civil Liberties Union, testified via teleconference from Anchorage. He disagreed with the schematics of the bill and the belief that his bill really does not have a fiscal note in the near future. There was a story in the Anchorage Daily News this morning, noting one of the clear impacts of this bill, is in fact, a financial one. The decision will be made for a future strike (felony) not to plead to them anymore. He thought they should look at the history of the jurisdiction, of what has been happening to the court system as a result of the decision to adopt what is called "three strikes" or "habitual" legislation. The point is, felons are simply not pleading out to those anymore, but are insisting on going to trial. That costs more money. The question you have to ask is whether or not that makes any sense. For instance, research gives us information about the death penalty bill, which you have obviously been privy to in this committee in years past. It has shown us that our judges are presently giving first degree murderers significant penalties. What good does it do to have mandatory sentences, when the average sentence imposed for first degree murder ranges between 62 and 87 years? One of the issues is that there is not really a significant need for this bill. He felt our current statutes already had significant protections. TAPE 95-27, SIDE A Number 000 MR. BURNS continued, disagreeing with the geriatric provision. For humanitarian reasons alone, if a prisoner is subject to cancer, and dying, they should not have to die in prison. He also felt this legislation was increasing the danger to law enforcement officials in Washington State. Criminals would rather go out in a shoot out, than be arrested, knowing they will spend the rest of their life in jail. He felt that a mandatory life sentence was cruel and unusual punishment. He believes in the reformation aspect of the State of Alaska Constitution. Number 120 BARBARA BRINK, Deputy Director, Public Defender Agency, testified via teleconference from Anchorage. She felt the fiscal impact to the state would be noticed immediately, since this changes the sentence for people who are now serving a 10 year sentence, to a life in prison sentence. She felt the cost of convicting someone would be substantial, as it would require proving the constitutionality of each prior conviction, some of which may have occurred in other states, which would in turn, require travel. The prior strike would have to be shown to be a felony in the State of Alaska. It would have to be a constitutionally valid plea. That person would have to have had competent counsel, and if there is any differing procedure in the other state, that has to be accounted for as well. Thousands of man hours would be involved there. Any person in this category would be more likely to go to trial, rather than plea to the charge. Currently, 94 percent of felony cases here in Alaska do not go to trial. They are resolved with plea bargains, pleas to the charges, dismissals, and negotiations. You would be turning a simple trial into a complicated drain on the Alaska Court System, the Public Defender's Office and the District Attorney's office. MS. BRINK felt HB 38 was targeting the wrong age group. The rate of crime for older people is decreasing, while the crime rate among juveniles and younger adults has risen. She said that every hour we spend locking up old people, is an hour we cannot spend elsewhere. REPRESENTATIVE BUNDE spoke to the concern over crowding our courts. He guessed we could uncrowd our courts if we just stop arresting people, but that is not the purpose. This may indeed cause more work for courts, but one of the problems is the lack of public confidence in this judicial system at this point. Many people have told him how uncomfortable they are with the discretion judges have. He read an article about how judges use their romantic notions to try to rewrite our laws. He felt that if a person was not rehabilitated after 20 years in prison, they most likely will never be. Number 420 CHAIRMAN PORTER explained that in his experience, he has asked criminals if they realized how close they actually were to spending the rest of their lives in jail, and in some instances, they actually did make a turn, and changed their behavior. That is an element that can be used when you have this kind of crime on the books. It is an expensive one, and we should try to craft this legislation in the least expensive, most effective way we can. Our legal counsel will be working with the bill sponsor over the next few days to try to put them in. One change that was mentioned was the clarifying language on page 4, section (b) which begins on line 26. It could be misinterpretted, and he would like to have a bill that does not ask more questions than it answers. There will be suggestions on other sections too. He ended the discussion on HB 38 for further consideration and changes. HJUD - 03/08/95 He then opened discussion on HJR 1 for the purpose of continuing it on Friday. ADJOURNMENT The House Judiciary Committee adjourned at 3:10 p.m.