Legislature(1997 - 1998)
04/29/1997 01:05 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 BILL NO. 16
"An Act relating to delinquent minors, to the taking of action
based on the alleged criminal misconduct of certain minors, to the
services to be provided to the victims of criminal misconduct of
minors, and to agency records involving minors alleged to be
delinquent based on their criminal misconduct; and amending Rule 19
and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
- BILL POSTPONED
SB 63 - DEADLY WEAPON OFFENSES BY JUVENILES
[Contains discussion of HB 6 prior to number 0600 and at 0877 of
tape 97-71; contains discussion of HB 16 prior to number 1268 of
tape 97-71]
Number 0863
CHAIRMAN GREEN announced the next item of business was Senate Bill
No. 63, "An Act providing for automatic waiver of juvenile
jurisdiction and prosecution of minors as adults for certain
violations of laws by minors who use deadly weapons to commit
offenses that are crimes against a person, and relating to the
sealing of the records of those minors."
Number 0904
SENATOR DAVE DONLEY, sponsor, noted that SB 63 had passed one body
or the other of the last three legislatures, and it had passed
through the current committee the previous year. The bill follows
up on the juvenile waiver statutes from a few years before.
SENATOR DONLEY explained, "As you know, several years ago, we
adopted the automatic waiver of juveniles who commit class A
felonies, crimes against the person. And this reaches down a
little bit further than that, into the list of crimes, to try to
address the violent crimes that are not class A crimes and,
specifically, the use of deadly weapons to commit assaults. And
what Senate Bill 63 would do is say ... that if a juvenile over the
age of 16 has been previously convicted or adjudicated as a
delinquent as guilty of a[n] assault with a deadly weapon, then if
they're subsequently charged with assault with a deadly weapon,
they'd be waived to adult court."
SENATOR DONLEY said the department estimates that between five and
eight juveniles a year would fall in this category. He said there
is no mandatory sentencing requirement for those in this
classification. This only deals with the question of automatic
waiver to adult court for "this very, very small class of the most
violent types of juveniles." He said statistics show that violent
juvenile crime is one of our growing problems. And this is a
narrowly-targeted proposal to deal with the most violent types of
juveniles that are currently not being dealt with in adult court.
Number 0994
CHAIRMAN GREEN asked whether it would be reasonable for someone to
believe his or her life might be in danger, if accosted by a
juvenile several years younger than 16.
SENATOR DONLEY replied, "As you know, under federal law, the only
way to open up these type of cases is to ... put them into adult
court. As it is, unless they were a class A felony or unless they
moved through the optional waiver process, the proceedings would be
closed." He noted that another bill addressed that. He stated,
"But this is the one way to get them all the way opened up, so the
public can know who is committing these kind of crimes, without the
potential loss of federal funds also associated with that. So, it
would allow people to know who is committing crimes with a deadly
weapon multiple times. And the reason it's 16 years old [is]
because, frankly, the Governor is very opposed to anything under
16, and the Administration is opposed to even this one, because
they don't support any additional automatic waiver."
Number 1090
REPRESENTATIVE CROFT asked whether, under the same facts that this
would be an automatic waiver, there currently is the discretion to
waive.
SENATOR DONLEY said yes.
REPRESENTATIVE ROKEBERG observed that the Senate Finance Committee
had zeroed out the Department of Corrections fiscal note. He asked
who would be testifying.
CHAIRMAN GREEN advised him that Margot Knuth from the Governor's
Children's Cabinet and one person on teleconference planned to
testify.
REPRESENTATIVE ROKEBERG asked Senator Donley to speak about the
fiscal note.
Number 1130
SENATOR DONLEY pointed out that packets included an analysis from
the Senate Finance Committee explaining reasons for zeroing out the
Department of Corrections fiscal note. He said the assumption of
the department's fiscal note was that eight juveniles would be
waived to adult court, convicted of felonies and serve prison time.
However, the bill has no mandatory sentencing provisions, and the
Senate Finance Committee had not thought it was reasonable to
assume that all these juveniles would get extended criminal
sentences.
SENATOR DONLEY stated, "Additionally, for every one of these
individuals, if you're going to assume that they would get a
sentence like that, since our current juvenile facilities are all
desperately overcrowded already, there would be an offsetting
impact in the juvenile facilities; but, of course, that's in [the
Department of Health and Social Services] and it doesn't reflect.
So, another reason the Finance Committee zeroed it out is because
we viewed it as pretty much a `net zero' because anybody in their
second time of a deadly weapon assault, we were hoping that [the
Department of Health and Social Services] would be
institutionalizing some of those folks also. And so, if they're
not there, they're going to be here."
SENATOR DONLEY continued, "And finally, the basis for their request
for a 180-bed facility was mostly based on the mandatory waiver
that was already passed, for class A felonies from past years, and
not on the individual impact of this bill. So, they wanted a 180-
bed new facility to deal with the five-to-eight new people that
this bill would move in adult court, which are not necessarily
mandatory-sentenced."
Number 1226
REPRESENTATIVE ROKEBERG asked for confirmation that unclassified
and class A felonies are not included in felony-with-a-deadly-
weapon-type assaults.
SENATOR DONLEY replied, "There's a higher category of assaults with
a deadly weapon that result in serious permanent damage to the
victims that do become class A felonies. But the simple assaults,
and things that don't result in permanent physical damage to
people, I believe, are only class B felonies and [class] Cs." He
noted that Representative Berkowitz was looking up the definition.
REPRESENTATIVE ROKEBERG asked whether there was a "laundry list" of
those in the file.
SENATOR DONLEY replied that although it was not in the committee
packets, he had a memorandum that identified that list.
REPRESENTATIVE ROKEBERG asked that it be made available to the
committee. He requested examples.
Number 1312
SENATOR DONLEY responded, "Criminally negligent homicide, assault
in the second degree, assault in the third degree. They're the
ones that involve a deadly weapon. Assault in the second degree is
a class B felony. Assault in the third degree is a class C felony.
Those are the primary targets of the bill."
REPRESENTATIVE ROKEBERG asked, "The existing statutes, the fact
that a deadly weapon was involved is not a determining
characteristic of the definition of a type of assault, for example?
It may be a contributing factor, but there's other elements?"
SENATOR DONLEY replied that he believed if a deadly weapon was not
involved, it was a misdemeanor assault.
Number 1370
REPRESENTATIVE BERKOWITZ said there is no clear delineation between
the four degrees of assault; there is some overlap between each
one. The lowest degree is assault IV, a class A misdemeanor. For
example, there could be an assault IV misdemeanor involving a
deadly weapon if a person recklessly caused physical injury by
playing with a gun and accidentally shooting another person. Under
other circumstances, it might be moved up the scale. "Dangerous
instrument" is part of the terminology in assault III, a class C
felony. The continuum basically goes from physical injury to
serious physical injury. "And I know we had a discussion of
serious physical injury in another context," Representative
Berkowitz added.
Number 1438
CHAIRMAN GREEN asked whether those involve an offense against a
person.
REPRESENTATIVE BERKOWITZ said those were all the assaults involving
an offense against a person.
CHAIRMAN GREEN asked whether an assault against a person would
involve intent, rather than being reckless.
REPRESENTATIVE BERKOWITZ replied, "Not necessarily."
SENATOR DONLEY responded that a misdemeanor assault would not be
covered by this bill; one element under this bill is that it be an
offense punishable as a felony.
Number 1467
REPRESENTATIVE BERKOWITZ noted, however, that if someone recklessly
caused grave physical injury by playing with a gun, that could be
a B felony.
Number 1492
REPRESENTATIVE ROKEBERG stated his understanding that there are no
degrees of intent in criminal law.
REPRESENTATIVE BERKOWITZ affirmed that, adding that four mental
states apply to criminal statutes. The highest is intentional,
followed by reckless, negligent and strict liability; for the
latter, there is "really no mental state at all."
REPRESENTATIVE ROKEBERG asked whether there had to be intention to
have a crime.
REPRESENTATIVE BERKOWITZ said no; there are crimes involving strict
liability, such as many fishing violations.
REPRESENTATIVE ROKEBERG said they were statutory crimes, then.
REPRESENTATIVE PORTER said they were crimes because somebody says
they are; otherwise, they would not be.
REPRESENTATIVE ROKEBERG suggested that intent was needed under the
common law, then.
REPRESENTATIVE BERKOWITZ responded, "Or recklessness."
CHAIRMAN GREEN said he was looking at a list submitted by Jack
Chenoweth. He stated, "And I see intent in all of these. Now, I
don't know what necessarily constitutes criminally negligent
homicide, but that seems to be that there's got to be some intent
in there somewhere."
REPRESENTATIVE BERKOWITZ responded, "No. For example, if someone's
driving drunk and they run over a pedestrian ...."
CHAIRMAN GREEN said, "But we're talking about a weapon, now."
REPRESENTATIVE BERKOWITZ pointed out that a vehicle can be a
weapon.
REPRESENTATIVE JAMES asked whether they had a list of weapons that
are deadly.
REPRESENTATIVE BERKOWITZ replied, "There's nothing that's
definitive, but the statutes define weapons. I believe Senator
Donley had a list." He noted that under appropriate circumstances,
fists or boots have been defined as dangerous weapons or deadly
weapons.
CHAIRMAN GREEN suggested that did not go along with the driving
incident. It seemed that if a person used a fist on someone, it
would be intentional.
REPRESENTATIVE BERKOWITZ agreed.
CHAIRMAN GREEN stated, "And that's the concern we've got, is
whether there is intent."
Number 1637
REPRESENTATIVE PORTER asked what Mr. Chenoweth had been responding
to.
SENATOR DONLEY said those were all the crimes against a person that
are punishable as a felony.
REPRESENTATIVE ROKEBERG stated his understanding that there had to
be a crime against a person, a felony and a deadly weapon, under
this bill.
REPRESENTATIVE BERKOWITZ stated, "Hypothetically, ... if you hold
a knife at someone's throat and coerce them to do something, you've
got the coercion but the knife hasn't done any actual harm."
REPRESENTATIVE ROKEBERG asked whether that would not be assault.
REPRESENTATIVE BERKOWITZ said it would be an assault.
REPRESENTATIVE ROKEBERG suggested it could also be an exploitation;
there could be two different crimes committed in the same act.
REPRESENTATIVE BERKOWITZ agreed.
Number 1740
REPRESENTATIVE JAMES indicated that when she sees "deadly weapons,"
she thinks of guns. However, by using that language, it raises
different conceptions of what that means. She asked: Since guns
are such a tool used now by children, why didn't the bill just say
guns?
SENATOR DONLEY explained that the bill had originally dealt only
with firearms, as a response to guns in schools and the failure to
hold juveniles accountable for repeated firearms violations.
However, there was a reluctance to single out firearms because
other weapons such as brass knuckles, billy clubs, pipes and so
forth could be used. Therefore, a floor amendment passed several
years before in the Senate, to expand it to deadly weapons.
Number 1871
REPRESENTATIVE BERKOWITZ advised members that there is a
distinction between "deadly weapons" and "dangerous instruments,"
and he may have overlapped the two definitions in his earlier
explanation. He read: "A deadly weapon means any firearm or
anything designed for and capable of causing death or serious
physical injury, including a knife, an axe, a club, metal knuckles
or an explosive."
REPRESENTATIVE BERKOWITZ contrasted that with dangerous instrument,
"which includes any deadly weapon or anything that under the
circumstances in which it is used, attempted to be used, or
threatened to be used, is capable of causing death or serious
physical injury." He said, for example, the car would be a
dangerous instrument, not a deadly weapon. He emphasized that he
was retracting that portion of what he said earlier.
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage,
stating that the courts now have discretion to waive juveniles in
appropriate situations. His agency is concerned that an automatic
waiver would not be commensurate with the current statute. "Right
now, you have to have an unclassified or a class A felony, you
know, obviously very serious crimes, or arson," he said.
MR. McCUNE referred to earlier discussion about mental states. He
clarified that criminal intent occurs when a person's conscious
objective is the completion of an act. In addition, many assaults
and crimes against the person that are felonies occur with reckless
behavior, which he defined: "Recklessness is when you're aware of
a risk that a circumstance or result might occur, but you
disregard that risk and complete the act."
MR. McCUNE said assault III offenses happen in many ways. A deadly
weapon can include a club or an unloaded or loaded firearm. If a
juvenile scares another person, so that that person fears imminent
serious physical injury, that is an assault against the person. If
a club or gun, loaded or unloaded, is used, that is assault III.
While in some situations assault IIIs are very serious offenses,
they also can be less serious, depending on the facts.
MR. McCUNE said his agency was concerned about juveniles who commit
assault III offenses. For example, someone may have been
adjudicated regarding a theft or burglary that is a felony but not
have been placed in an institution or received treatment. If that
person committed a relatively minor assault III, he or she would be
institutionalized. Mr. McCune commented, "And, you know, you could
institutionalize that person probably, and still treat them as a
minor. So, we're concerned about that class of people being
automatically waived into adult court."
TAPE 97-71, SIDE A
Number 0006
REPRESENTATIVE CROFT requested a brief explanation of how
discretionary waiver works. Noting that the courts decide, he
asked whether it requires a filing by the department.
MR. McCUNE cautioned that there had been recent changes in the law
and he was not as up on it as he should be. The burden of proof
had changed, once the department filed, depending on the age of the
child. He stated "And so, the filing, as I understand it - and I
hope I'm correct in this - is done by the department or the
attorney general handling the case. And then, quite often but not
always, the burden of showing that the minor is amenable to
treatment as a juvenile ... is on the minor and the minor's
attorneys."
Number 0120
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, came forward to testify, specifying that she was
representing the Governor's Children's Cabinet on legislation
relating to youth and justice this session. She said Senator
Donley had correctly indicated that the Governor's Children's
Cabinet has serious concerns about this bill and believes that it
would be a mistake to pass it in its current form.
MS. KNUTH, speaking of Senator Donley, explained, "He characterized
this bill as reaching down a little bit further than where we have
automatic waiver already. And I cannot disagree with that more
strongly; I cannot agree with that at all."
MS. KNUTH explained, "Right now, we have automatic waiver for class
A and unclassified offenses for 16- and 17-year-olds. And when it
comes to assault, that means that the offender must have caused
some physical harm to the victim." She said most of the offenses
do not involve physical harm to the victim but rather brandishing
a gun or a knife, which recklessly places a person in fear of
serious physical injury by means of a deadly weapon.
MS. KNUTH stated, "And the difficulty that we have with dropping
down to class B and class C felonies is that currently, we have a
pretty bright line on where automatic waiver ought to be occurring.
If you're going to drop down to B and C felonies, first you're
going to do it where there is use of a deadly weapon, and I just
have a significant concern that we're going to start patchworking
this and that there are many serious B and C felonies that don't
involve the use of a deadly weapon, and that to the extent we have
serious concerns with the way our juvenile system is operating,
what we need to do is to step back and look at some thoughtful,
holistic approach to revisiting it. And the Administration is very
concerned about piecemeal approaches, and especially this one,
because this is the camel's nose getting under the tent in a
significant fashion."
Number 0328
REPRESENTATIVE JAMES said one of her biggest concerns is the misuse
of guns. She asked whether a solution would be to make the use of
guns a more serious crime and whether that was possible.
MS. KNUTH replied, "Again, I think that people have studied our
criminal code as a whole and have tried to assign the seriousness
of certain offenses. And especially when we get to assaults, it's
a combination of mental state, whether or not an instrument is used
and whether or not harm was caused. And merely threatening harm
with a dangerous instrument should always be a less serious offense
than causing harm, versus causing serious physical harm. We've got
to have gradations in it. If you were to raise old juvenile
offenses involving a weapon to ... a class A felony crime, I think
there would be a basis for a challenge under equal protection of
why, when it's juveniles versus adults, considering the serious of
weapons."
MS. KNUTH continued, "But I'd ask the committee also to look at
what other class B and C felonies you can have that don't involve
a deadly weapon and yet, I think, are terribly serious crimes,
namely, sexual assault in the second degree. A 16-year-old who
engages in sexual intercourse with an incapacitated person is
guilty of a class B felony offense of sexual assault in the second
degree, and I think that's a mighty serious offense. Sexual abuse
of a minor in the second or the third degree are B and C felonies.
Criminal mischief, intentionally damaging the pipeline, is a class
B felony. Tampering with medicines, aspirin, say - I think there
was a case that happened somewhere in the nation that a whole bunch
of bottles had been tampered with - that's a class B felony. Drug
offenses, selling any amount of cocaine, a 16-year-old who sells a
pound of cocaine to a 14-year-old, that's a class B felony."
MS. KNUTH continued, "And I don't know how we could say these
offenses are less serious or less damaging than an offense of, `I
point a gun at you, and it may not even be loaded, but you should
always assume that it is loaded and you should be afraid as though
it were loaded.' But in terms of the actual harm that's caused by
the offenses, I don't know how you could say that that one is more
worthy of a different result than the other offenses that I've
outlined."
MS. KNUTH continued, "One of the props for this amendment was
before we had House Bill 6, which is now in Senate Finance, on
disclosure of juvenile offenders. And there was a concern that
there are offenders out there who are using guns and committing
serious crimes, and we didn't know who they are. That problem is
being addressed in disclosure of juvenile records and opening those
court proceedings. And to the extent that that was a motivation
for this bill, it's being cured in that separate form."
Number 0600
MS. KNUTH continued, "One of the things I'd like to note is that we
do have a usable ... petition-for-waiver procedure. And it's most
likely to be used and most likely to be successfully used when a
juvenile has a prior, which is one of the requirements of this
bill, because in order to waive a juvenile to adult court, you need
to show that it's unlikely the juvenile can be rehabilitated within
the juvenile justice system. One of the best measures of that is
the kid's already been through the juvenile system and it didn't
work, it didn't take. And so, we're talking about a group where
the discretionary waiver is more likely and more appropriate to be
used."
MS. KNUTH continued, "And certainly from the prosecutor's viewpoint
and from the Department of Health and Social Services' viewpoint,
this is not a big problem that demands fixing. They feel more
comfortable with it being discretionary because use of a gun can
often be an equalizer for -- suppose you have a 16-year-old boy who
is not very big and his mother's boyfriend, who beats up on the
mother on a fairly regular basis, is 300 pounds, 6'3". The kid
goes too far in pointing the gun at that guy, and it's an
inappropriate circumstance; maybe he comes back a week later or
something like that. But a gun is often used in these
circumstances that can be terribly serious but also might not be.
It might be an indication of something else going on there. And
you could have somebody who is in a situation where it happens more
than once, even. So, for that reason, the state feels more
comfortable if they are able to decide whether to petition for a
waiver, whether to say, `This is a bad case, that we need to get an
adult sentence there.'"
MS. KNUTH advised members that Bruce Richards from the Department
of Corrections was present and could answer questions about the
fiscal note. She stated, "It was based on the department's need
for a 64-bed facility for juveniles because, as a result of the
automatic waiver statutes that have been passed already, which were
not funded, we now have a number of juveniles in the adult system.
And one of the evils that we can all imagine as we sit here is that
when you put these kids in with adult population, they've got some
pretty bad role models there. And we would like to have them
separated."
MS. KNUTH continued, "They're not required by federal law to be
separated once they're an adult offender, but in terms of what's
appropriate for them and the special treatments that they need --
because psychologically they're in a different frame of mind, they
have poor impulse control, they have a whole set of problems that's
pretty particular to them. And a separate facility is a reality
that we need to face at some point. And we said that before.
We'll say it with this bill. I expect we'll probably be back and
say it again sometime."
Number 0787
CHAIRMAN GREEN referred to Ms. Knuth's example of a young boy being
confronted by his mother's bully boyfriend. He asked whether use
of a gun there would be considered a crime or self-defense.
MS. KNUTH said it would depend on the circumstances, although it
should be defense. She explained, "I consider most juveniles
judgment-impaired; I think that's the definition of being a
teenager. And their call on the situation can be wrong. Their
timing can be wrong. It could have been, last time, bully thumps
on mother; and this time, the kid's reacting too soon and bully
hasn't done anything, and the kid's just flying off the handle.
But he didn't do anything except say, `I've got a gun,' you know,
`You're dead meat,' whatever the scene is."
MS. KNUTH continued, "Especially if alcohol should be involved on
the part of the adult, then the stories of what happened become
more difficult to unravel, and if the kid's the one with the gun,
sometimes arresting the kid and getting him out of the house is
what makes the most sense in that circumstance. And so, there's a
continuum of these events, all the way from really appropriate,
righteous conduct to, you know, serious mistake. And the blurry
lines are along the way."
Number 0877
REPRESENTATIVE ROKEBERG said he somewhat shared her concern about
how this would fit in if HB 6 should pass. He asked, "Do you think
that, were that to pass, that that ... would meet some of the
requirements of the bill sponsor here and will allow the court to
go deeper down, at their discretion, for the waiver?" He asked Ms.
Knuth to explain how that would work.
MS. KNUTH replied, "House Bill 6 is a matter of disclosure of
juvenile offenders who have committed crimes against a person,
which include the offenses that we're talking about here, as long
as it's a felony crime against a person. So, it would be the B and
the C felonies, as well as the As and the unclassifieds. And there
is currently a debate still going on whether that disclosure should
be made at the point of when the petition is filed or should it be
made at the point of the adjudication. But the sponsor amended the
bill in Senate Judiciary to also have a provision for the court
proceedings to be open. So, not only do we get the information
about the offense and the offender from Health and Social Services,
but the state will be able to have the proceeding open to the
public."
MS. KNUTH continued, "And I think the part of this bill that that
takes care of is the concern that there's this veil of secrecy
about juveniles, we don't know who the dangerous ones are, and by
treating them as adults, that was one way of making sure that there
would be full disclosure about who they are, what they've done. If
you can have that same disclosure within the juvenile system, you
don't need to waive them to adult court just to find out who they
are and what they did; you can find that out while they're still in
the juvenile system."
Number 1000
REPRESENTATIVE ROKEBERG referred to HB 6 and stated his
understanding that the courts wouldn't be mandated or even have the
discretion to do an automatic waiver, unless it fit under the
unclassified or class A felony definition. So, their hands would
be tied as far as actually pursuing prosecution as an adult.
MS. KNUTH replied, "The court never makes that call unless the
state petitions for it anyway, although if the legislature has made
it automatic waiver -- I mean, their hands are equally tied. They
have to take it as an adult case. They don't have the means of
bouncing it back ... to juvenile proceedings."
REPRESENTATIVE ROKEBERG asked, "If the state had decided the fact
pattern was such, even with a third degree assault, for example,
... that they felt that the alleged criminal should be prosecuted
as an adult, do they have that ability to petition?"
MS. KNUTH said absolutely, yes.
Number 1064
REPRESENTATIVE BUNDE referred to Ms. Knuth's characterization of SB
63 as going deeper regarding the waiver process. He asked for an
idea of numbers or recent cases where someone would be affected
under SB 63 but not under existing legislation.
MS. KNUTH said the Department of Health and Social Services had
prepared a list of examples of cases but she did not have a copy
with her.
An unidentified speaker advised Ms. Knuth that it was in the
committee packets.
MS. KNUTH noted that results from nationwide studies on the success
of automatic adult waiver are not promising. They are finding that
kids who go through automatic waiver are more likely to re-offend
than those treated as juveniles, and the new offense is likely to
occur sooner and be a more serious offense than if they had gone
through the juvenile proceedings.
MS. KNUTH stated, "So, the three measures that we use for success
of rehabilitation of a system, all three of them are worse for kids
who are going through automatic waiver than for the kids who are
going through the juvenile system. And part of that is because
you're teaching them something they didn't know before they went
through the adult system: that they can survive it. They will find
a way to live as somebody with an adult conviction."
MS. KNUTH continued, "And it's the same thing the first time you
put a juvenile in detention. As long as you had that as a threat
over their head, it meant a lot. But the moment they actually
spent their first night in detention, they realized they can live
with that. They're going to be here tomorrow, and they're going to
find a way to get on with their life, and they made some new
friends that I'd just as soon they hadn't made. And you have the
same thing happening in the adult system."
MS. KNUTH stated, "The conference [on youth and justice]
recommended instead of having automatic waiver - either go down in
age or go down in the seriousness of offenses - what the conference
recommended was a dual-sentencing provision where the kid gets both
a juvenile and an adult sentence. And if they screw up, then you
impose the adult sentence. But it gives them that window of
opportunity to straighten their own life out, and it gives them
some control and some investment and some motivation to get back on
the straight and narrow." She said that is part of HB 16, an
alternative which she believes shows a great deal of promise.
Number 1268
REPRESENTATIVE BERKOWITZ referred to the list of examples drawn
from the Division of Family and Youth Services (DFYS) files. As he
read it, of those six examples, three would not have come within
the reach of this bill because they did not involve deadly weapons.
For one, somebody had used a vehicle; for another, someone had
another youth attack a third party; and for the third, someone used
a glass bottle. None of those is a deadly weapon.
REPRESENTATIVE BERKOWITZ said the one that troubled him most was
where someone was charged with an assault II and pled to an assault
IV. He said that seems to typify the problem more. His experience
has been "that you charge high and plead low."
MS. KNUTH commented, "Of course, we deny that ever happens ...."
REPRESENTATIVE BERKOWITZ said they got good sentences out of it.
He stated that the concern was that at first blush, there might
appear to be the elements to make a higher-level charge, but when
investigated further, they are lacking. On the other hand, that
was only one case in fiscal year '95-'96 that fell into that area.
Number 1340
REPRESENTATIVE JAMES said a trend she has seen over the last few
years is what she calls "coddling," giving offenders repeated
chances. It seems there should be a day of reckoning when
juveniles must realize they are responsible for what they do. She
referred to Ms. Knuth's indication that if juveniles serve time
with adults, they would learn bad behavior. Representative James
asked about the bad influence of that juvenile on other juveniles
if they served time together. She mentioned her experience with
reform school issues and foster care and stated, "I guess that I
think we've tried coddling. And I think we need to get more
serious with some of these issues." She asked for a response.
MS. KNUTH replied that first, there definitely needs to be the
ability to subdivide within juvenile facilities, to isolate the bad
offender from the run-of-the-mill property offender, for example.
As for coddling, she did not consider it an answer to "throw the
kid out and say good-bye forevermore." She stated, "That really
troubles me. When you saddle a kid with an adult conviction, you
have just disqualified him from entering the military. You have
made it a whole lot more difficult for him to get a job. You have
made it very difficult for him or her to go to college. And if a
kid can't do any of those three things, what are they going to do?"
MS. KNUTH continued, "I know we want to reach them. I know we want
to work with them and bring them back, but a kid has got to have a
way of being a productive member of society. And before we say,
`no job, no army, no college for you,' I mean, I want it to be a
pretty extreme situation."
MS. KNUTH emphasized that she would not minimize the seriousness of
a B or C felony. However, those crimes are not nearly as
significant as a class A or an unclassified offense. She stated,
"in our attempt to deal with the serious juvenile crime problem,
we've got to focus on those who are the chronic serious offenders,
be mean-as-heck to them, but not throw out the rest of the juvenile
population with them, because we're going to pay, pay, pay if we do
that."
Number 1488
REPRESENTATIVE JAMES said that many times, people older than 18 in
a group get the underage ones to do something because they know
they will not be in any trouble. She asked: How do you deal with
that?
Number 1509
MS. KNUTH replied, "This is, I think, the most important
conversation that's occurred from the youth and justice conference,
and I really appreciate the opportunity to have it. I think the
answer to what you're saying is part of the conference's
recommendations, which is that we let communities start responding
to some of the low-level offenders, because the state has done has
done a pretty bad job of responding consistently in seeing that
there are any consequences. And what we want to stop is what
you're talking about, where these kids say, `There are no
consequences; so, I can keep screwing up and I don't need to toe
the line.'"
MS. KNUTH continued, "If we allow communities to use more youth
board initiatives, more diversion panel projects, and if they will
implement them, as they say they want to do, in a consistent,
meaningful way, then I think we can start breaking the cycle of
kids feeling like there are no consequences."
MS. KNUTH continued, "What's a problem is when we have no
consequences, no consequences, no consequences and then boom, you
know, it's the whole thing's over. That's where we lose that kid,
and we haven't done anything, really, for all the ones that are
coming along, because they aren't able to see that. And I just
think it's important that we start approaching this in a ...."
Number 1568
REPRESENTATIVE JAMES said the only way it can be addressed in that
way is with the discretion of the people doing the arresting,
charging and so forth. "But history has proven that it's not been
effective," she said. "And that's where the general public comes
back and wants to have some more severe treatment. So, somehow or
other, we have to address that with the public."
Number 1590
REPRESENTATIVE PORTER stated, "I think that part of the discussion
centers on the point that once they get into adult court, I think
it was `boom, it's over.' Well, if that were the case, we wouldn't
have these problems in the first place. `Boom, it's over' on a C
and B felony doesn't happen in adult court. `Boom' is a strong SIS
is what happens with a B and C felony. Well, I don't think that
the concern that this kid is going to get thrown away and locked up
for the rest of his life is a reasonable concern in the first
place."
REPRESENTATIVE PORTER continued, "I agree with Representative
Berkowitz that the examples cited, three of them are incorrect, the
fourth one, maybe, and the fifth one, I'd want to put this kid in
there anyway. So, we're not talking about that big a group of
kids. We're not talking about an absolute `they're going to get
thrown away in jail for the rest of their lives' anyway, because at
this level of offense, they're probably going to get, if we're
lucky, an SSIS, which is a serious suspended imposition of
sentence. They are going to get the benefit of an adult court.
They are going to get the benefit of the exposure that we've been
trying to do through other kinds of bills. The parents are going
to get that same exposure. I think it's a positive thing, and I'm
ready to move this bill."
REPRESENTATIVE PORTER made a motion to move SB 63 from committee
with individual recommendations and the fiscal notes as attached
from the Senate Finance Committee. There being no objection, SB 63
moved from the House Judiciary Standing Committee.
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