Legislature(1997 - 1998)
03/07/1997 01:40 PM House FIN
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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 6
"An Act amending laws relating to the disclosure of
information relating to certain minors."
HOUSE CONCURRENT RESOLUTION 4
Relating to records generated and maintained by the
Department of Health and Social Services.
MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, REPRESENTATIVE FOR
THE GOVERNOR'S CHILDREN CABINET, DEPARTMENT OF LAW, informed
members that last year the Governor appointed a 90 person
task force to look at youth and justice concerns in Alaska.
Disclosure of names and information was an important issue
addressed at the Conference. The task force divided into
three groups focusing on different efforts:
1. Prevention;
2. At-risk youth; and
3. Prosecution of offenders.
The Governor's Conference confirmed that a balancing must
exist when the State engages in issues of disclosure. That
balance rests between the public's interest in safety and
the juvenile's ability to be able to overcome their breeches
of the law and come "back on track". She suggested how
young offender's actions often speak to family pressures.
Our present judicial system has a different way in dealing
with juveniles as these young people have not reached that
"age of reason", where it would be fair to blame them,
without including with the entire family system. She agreed
that as the offenses become more serious, individual
accountability and treatment become more appropriate.
The Governor's Conference addressed the tension within the
continuum, surmising that when the crime is serious and when
the child is closer to adult years, the public's right to be
safe out weighs the juvenile's right to confidentiality.
The Governor's Conference elaborated that if the crime was a
felony against a person and the juvenile was sixteen years
of age or older, or if the crime was a second offense,
disclosure would be appropriate. Such an approach was
addressed in HB 97, the Governor's bill.
HB 97 stipulates that juvenile crime is more than a problem
of record disclosure. Ms. Knuth recommended that
intervention or sanction would be a more appropriate
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substitute for disclosure, noting that action could be more
effective and restorative than disclosure. Disclosure of
the name would be appropriate when the offender has been
identified as representing a risk of harm to the community.
Ms. Knuth continued, the recommendation found by the
Governor's Conference would be to address cases where a
petition had been filed and then disclose that name. The
Governor's Conference never considered disclosure of
offenders who were going through the informal adjustment
process. In addressing the crimes of juveniles, there are
three courses of action:
1. Prevention;
2. Intervention; or
3. Prosecution.
The information adjustment would correspond to the
intervention process, and would include the entire family.
She suggested that public disclosure in that process could
interfere with a productive outcome.
When the Department of Health and Social Services (DHSS)
attended the National Center for Juvenile Justice
Conference, they inquired if other states disclosed
adjustment information. They did not. Ms. Knuth pointed
out that in all fifty states, the adjudication-prosecution
aspect was being studied in further depth.
Ms. Knuth pointed out that the Department currently is doing
a good job with the serious offenders; although, she noted
because of lack of financial resources the low end offenders
needs are marginally being addressed. She stressed that is
area, where intervention programs need to be put in place
and funded.
Ms. Knuth spoke to the inaccuracy of the statement that
police can not access juvenile information records. The
Department of Health and Social Services (DHSS), through
A.S. 47.12.300, authorizes disclosure of records to all law
enforcement officials. She emphasized that it has been
difficult to access these records because of a computer
interface problem. The systems used by each department is
different and they are not compatible. This concern has
been addressed in this year's Capital Budget Request (CBR)
for funding the update of the interface structure. She
stressed that information needs to be accessible.
In response to Representative Kelly's query, Ms. Knuth
recommended that an incentive could be created during the
intervention process if the adjustments were not made
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public. If disclosure mattered to the family and child,
they would be motivated to do everything asked of them
during the informal adjustment process.
Representative Kelly suggested that current law allows the
Department to establish policy. He felt that authority
constituted a "bold act", a power he believed should be
handled by the Legislature. Ms. Knuth admitted that would
be a valuable discussion to have. Cases do exist where no
physical harm occurred; those cases are going through the
adjustment process with a good possibility of reclaiming the
child's integrity while working with the family.
In reference to concerns by Committee members,
Representative Kelly referenced HB 6, Page 3, Line 6,
indicating that language would address concerns of a "joint
being possessed". That was his intent. Ms. Knuth replied
the language would address a misdemeanor offense, although,
would not take care of a situation at school.
Ms. Knuth explained that progress has been made to close the
time gap that law enforcement officers had complained about
in being able to receive information from the Department.
She commented that the bill would put the Department in a
position of making disclosures to law enforcement officers
and to the schools.
Co-Chair Therriault asked when a youth would be petitioned.
Ms. Knuth responded that they are petitioned at the second
burglary.
Representative J. Davies outlined a conceptual amendment
which would address when disclosure would take place. He
admitted, for serious cases, there is a societal benefit
from disclosure and at present time, the serious "stuff"
does go to petition. He recommended that the bill be
restructured so that disclosure only occurs when there is a
petition, and then placing policy guides at the preliminary
investigation stage. Representative Davies believed that
approach could preserve the "carrot" during the informal
route. Representative Kelly commented that under that
scenario, an employee of the Department would be responsible
to determine what constitutes a threat to society, rather
than the Legislature determining that action.
Co-Chair Hanley questioned if "charge bargaining" existed
when not convicted. Ms. Knuth commented that it wasn't
clear and was not as "neat" as in the adult system. He
asked if the Administration would support the juvenile's
name being disclosed if the process had not yet been
completed. Ms. Knuth replied that the Conference did not
recommend disclosure at that level. She reminded members
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that the reason for disclosure was for public safety. The
bill states that if there was a case and no compliance, then
there would be cause for a new case, at which time the name
would be disclosed.
(Tape Change, HFC 97-50, Side 2).
Co-Chair Hanley asked if a repeat offender's name would be
disclosed. Ms. Knuth replied that at the Governor's
conference, recommendation was for burglary offenses there
would be disclosure, but not on repeat misdemeanor offenses.
She added that a determination would need to be made
deciding what the intent of the disclosure would be, a
portion of the punishment or public safety. Additional
repeat offender crimes which would merit name disclosure
after the second offense are drug offenses, sexual
misconduct and assault. She commented that burglary was the
most common offense, and representing a broad spectrum of
seriousness.
In response to Representative Hanley, Ms. Knuth explained
that any crime committed with a deadly weapon would be
considered a felony and would be serious.
ROBERT BUTTCANE, PROBATION OFFICER, DIVISION OF FAMILY AND
YOUTH SERVICES, DEPARTMENT OF CORRECTIONS, advised that it
is a difficult task to address misconceptions that occur
when dealing with youth who have broken the law. In
discussing disclosure, a host of assumptions, misconceptions
and myths sometimes are taken as truth. Mr. Buttcane
attempted to clarify misunderstandings of the proposed
legislation.
He explained that there are fifty-five probation officers
working for the Division of Family and Youth Services
(DFYS). These people are committed to having safe
communities and at the same time, trying to identify those
young offenders who are more characterized as "mischief-
makers". Those who can still be guided into becoming
productive citizens. He stressed that most of the young
people who are "in contact" with the juvenile correction
system, "grown up". Mr. Buttcane acknowledged that some
kids will never merge into the system. These are the ones
who can cause serious danger to the welfare of themselves
and the community, and whose needs should be placed
secondary to the community.
Mr. Buttcane spoke to disclosure and the appropriate time to
release the names of those guilty juvenile offenders.
Disclosure can be used as a tool at times to sway the youth
offenders from continuing in the direction they currently
are moving. The proposed legislation would capture some of
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those young people, who potentially could have taken a
change in their course of action, and instead push them into
a more detrimental direction. Some thirteen and fourteen
year old kids have not had the life or cognitive experiences
to really connect cause and effect every time they make a
decision. He added that he would not hold a twelve year old
youth to the same standard of accountability that a sixteen
year old would be held too.
Mr. Buttcane provided an overview of the proposed
legislation noting his concerns. He stated that Section 3
was good and would place shared accountability to
communicate both on the victim and the Department.
Section 4 is problematic, citing Page 2, Line 18, "if
exercise of agency jurisdiction is based on:". Mr. Buttcane
noted that nothing is initiated at DFYS until something is
submitted by a law enforcement entity. That action provides
agency jurisdiction. He pointed out that it would not be
uncommon, when "probable cause" exists to proceed further in
order to ascertain if all facts support the charge.
Problems result from the scope of the "net" disclosure and
could trigger probable cause evidence, resulting from a
number of disclosures which would not have existed, had the
investigation gone far enough to show those facts.
Representative Kelly inquired how much further would that
investigation need to go. Mr. Buttcane replied, to the
point where additional factors surfaced. Representative
Kelly questioned if that would be after the preliminary
investigation, indicating that had been his intent through
the legislation. Mr. Buttcane replied, as currently
written, it would not.
Representative Kelly expressed his surprise and anger that
information had not been specified during previous meetings.
Mr. Buttcane stated that it was unclear whether or not the
trigger would occur at the police referral or following the
outcome. Representative Kelly noted that he would submit an
amendment to address that change.
Mr. Buttcane suggested that language on Line 20, Page 2;
"failed, without good cause" was "subjective" information
and that it would be difficult to determine if the
conditions had been present in order to disclose. He
stressed that the legislation stipulated fifty-four
different variables which would trigger a disclosure,
creating an impossible feat for any probation officer.
DIANE WORLEY, DIRECTOR, DIVISION OF FAMILY AND YOUTH
SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, spoke to
HCR 4, legislation relating to records generated and
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maintained by the Department of Health and Social Services.
She spoke to the necessary splits within DFYS to allow
disclosure of juvenile records and the disclosing of
confidential information without the loss of the federal IV-
E dollars.
Ms. Worley explained the organizational structure of the
Division of Family and Youth Services. Responsibilities
include the child in need of aid (CINA) cases and the
juvenile corrections component. Currently, the Division's
fiscal and administrative responsibilities are tied
together. Some of the allocations received by the Division
are received from the federal IV-E dollars, part of the
Social Security Act and are received for children in out-of-
home placement. Currently, the Division collects $7 million
dollars for those children. There are very strict
requirements to protect the confidentiality of the clients
in order to qualify for the federal IV-E funds.
Last year, when similar legislation was before the
Legislature, the Division questioned federal standards in
order to determine what was essential to continue receiving
those dollars. Following discussions, a determination was
made that there could be an internal separation with the
administrative management and fiscal operation sections.
Last Summer, the Division researched the necessary criteria
to change the structure of DFYS in order that federal
dollars could continue on the CINA kids, loosing only
federal money on the juvenile population.
The fiscal note for HCR 4 identifies restructuring costs for
the Division. She added that the fiscal note attached to HB
6 also identifies both the restructuring costs and the loss
of federal funds. If HB 6 passed without HCR 4, it would be
essential that all necessary costs are addressed. She spoke
to the fiscal overlap in the submitted notes.
Co-Chair Hanley asked how many serious offenders receive the
IV-E monies. Ms. Worley explained that would depend in
which section they currently rest within the Division. If
they are in the juvenile corrections segment but are not in
a facility, they would still qualify. Co-Chair Hanley asked
how many children were in that circumstance. Ms. Worley
offered to provide information to Committee members on
number of the youth, the State currently is drawing federal
IV-E dollars on and which category they are classified in.
Representative Kelly inquired the number of crimes on the
list that have gone the adjustment "route". Ms. Worley
offered to provide that information. Representative Kelly
asked if the federal IV-E money identified delinquents. Ms.
Worley replied, those monies were for both CINA kids and the
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juvenile delinquent program, used when the youth are placed
in out-of-home care other than a facility. Representative
Kelly asked if that money was received as a block sum.
(Tape Change, HFC 97-51, Side 1).
Ms. Worley stated that the money is collected based on how
the dollars are divided between the two sections.
Currently, there is latitude of spending based on the two
sides. The proposed legislation would change that latitude
in drawing on those kids who are in the youth correction
side separated from the out-of-home placement.
Co-Chair Hanley asked if CINA kids were fully funded. Ms.
Worley responded that the Division is always in need of
additional resources, although, the federal IV-E dollars
cover a substantial portion of those children's costs. That
funding is used to cover payment for children and the
personnel positions associated with those responsibilities
in the Division. All money, both federal and State dollars
flow through the Division. If there were three sections,
rather the two, the allocations would still flow through the
same administrative services.
Representative J. Davies questioned the costs associated
with the restructuring and separating authority lines. Ms.
Worley responded that the federal government has specific
guidelines which must be followed to meet the "letter of the
law" in order to qualify for the funding.
Ms. Worley spoke to previous discussions regarding
restructuring of the Division. Probation and facilities
would need a line of authority statewide. She stressed that
the entire youth correction program has developed
inconsistency throughout the state. The Division intends to
implement more clear statewide guidelines for probation and
facilities. Presently, these systems are being addressed
from a local perspective rather than statewide concern.
Representative Kelly questioned the need for splitting of
the probation services as recommended in the fiscal note.
Ms. Worley replied that split would occur below the
director's office. At this time, the Division intends to
restructure. Under the director's authority, there would be
an administrator for Family and Youth Services and an
administrator for the Youth Services component. They would
both report directly to the director.
In response to Representative Kelly, Ms. Worley stated that
the splits would depend on the current structure. At this
time, there are three regions, South Central, Northern and
South East. There is a administrator in each of the three
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regions. Each one is a combined supervisor-manager-
administrator responsible for both sections of their area in
the State. Those positions would be deleted under the
proposed restructuring. She believed that regionalization
would continue to work well for the Family and Youth
Services component; whereas, the staffing needs of the Youth
Corrections component would be less.
With the proposed restructuring, the regional administrator
position would be deleted, and instead a lower range
position would be hired in each region, coordinating all the
family services for that area. For the youth service
component, there would be a statewide administrator in
Juneau and a superintendent who would supervise the overall,
statewide approach to all of the facilities, satisfying the
need for statewide coordination.
Representative Kelly asked how similar the restructuring
needs proposed in the legislation would be to the original
restructuring intent of the Division. Ms. Worley replied
that the Division had not planned to restructure. She
agreed that a need exists, and that the Division had been
looking at providing some "modifications" in order to
provide a more efficient approach between regional and
statewide needs.
Co-Chair Therriault inquired if there was separate
legislation which addresses "disclosure". Ms. Worley
replied that it had been addressed in the Governor's bill
and that the fiscal notes in that legislation would be
identical to those provided in HB 6 and HCR 4.
Mr. Buttcane reiterated his concern with "disclosure" as
used in the proposed legislation. As contained in the bill,
disclosure would be an "inappropriate" tool for probation
officers. Mr. Buttcane advised that disclosure in the
"informal" process of preliminary investigation would be
harmful. He pointed out that during the informal process
was the place where most of the work in the juvenile system
did occur and was the area where loss of cooperation would
most likely happen.
In response to a comment made by Mr. Buttcane, Co-Chair
Therriault interjected that the parent and child do not
enter the system voluntarily; they are sent by the police.
Mr. Buttcane agreed that they do not have a choice,
although, whether they descend further into the system could
be a choice. He pointed out that between 60% & 70% of youth
offenders are involved in the choice of filing. The
juvenile system allows informal intervention, a place where
most of the "healing" and corrections take place. The
purpose of the informal system is to get everyone to agree
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that the action was wrong. Ninety percent of the kids that
come into the system process are willing to admit that they
participated in the crime.
By entering into the formal petition, time is spent on
trying to prove guilt. Disclosure at the informal, adjusted
phase, jeopardizes the entire purpose of sitting at the
table to address the problem. He emphasized that the scope
of the proposed legislation was too broad.
Mr. Buttcane spoke to the differences between burglary which
deserves public condemnation and the type of burglary which
would be of a lesser offense, suggesting that the intent to
commit a crime could be different in different
circumstances.
Representative J. Davies asked Mr. Buttcane to comment on a
conceptual amendment of attaching disclosure only to the
petition route. Mr. Buttcane agreed that action would be
more in line with the intent of the Administration.
Representative J. Davies asked for a characterization of the
range of violations which go through the petition process.
Mr. Buttcane stated it would cover all offenses from Class B
misdemeanors through the unclassified felony. Because of
case circumstances, files could be used on a "B"
misdemeanor, if it preceded other referrals for
inappropriate behavior. He suggested that each communities
standards could differ statewide. Policies and procedures
do specify when a petition "shall" be filed and would
typically relate to Class "A" and unclassified felonies,
property or person offenses.
Representative J. Davies questioned the number of instances
that a minor pleaded guilty at the time of petition. Mr.
Buttcane replied that 80% of the petitions filed throughout
the State do not go to a formal trial. At this stage, plea
negotiations begin. He stressed that the purpose of the
juvenile system is to "straighten out" the youth.
Representative Martin suggested that kids like "attention",
and thought that could happen with passage of disclosure.
He believed that some children's parents would prefer that
the kids be dealt with at the court level, which would be a
financial drain to the State. He foresaw problems with
passage of the legislation. Representative Kelly reminded
Representative Martin that adults have their names published
each time they commit a crime and that HB 6 would create the
same for youth. The intent of the bill would be less to
punish the child and more for public safety.
(Tape Change HFC 97-51, Side 2).
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Representative Martin asked if the basic rights of a child
would be protected in HB 6. Mr. Buttcane pointed out that
disclosure addresses when the right of the individual ends
and the right of the community to be safe takes over. A
line would be drawn on personal rights. He agreed that in
some cases, it would make sense, when the community has
interests which out weigh the individual's. Kids branded in
public as being criminals, do not have the resources that an
adult has to leave that reputation behind. Mr. Buttcane
pleaded that youths rights be recognized in the process of
directing the cases into correction activity, rather than
after a long-wait of due process procedure. Co-Chair
Therriault interjected that no constitutional "right" exists
for a juvenile offender for confidentiality. He stressed
that concept was an extension provided by law.
Representative Kelly questioned the length of time it would
take from a referral to a preliminary investigation. Mr.
Buttcane noted in Anchorage, 60% are assessed within two
weeks, at which time, it is determined if that person goes
the adjustment or petition "route". He added, the time
element varies throughout the State.
Representative J. Davies questioned the length of time
between the incident or arrest and the referral to DFYS.
Mr. Buttcane stated that would depend on police referral
resource. Referrals from Alaska State Troopers tend to take
longer, whereas, in places with well organized police
departments, it could be addressed as soon as the next day.
Co-Chair Therriault noted that Co-Chair Hanley would
scrutinize the fiscal notes through the DHSS subcommittee
process.
HB 6 and HCR 4 were HELD in Committee for further
consideration.
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