Legislature(2007 - 2008)

03/18/2008 02:50 PM House FIN


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 255                                                                                                            
                                                                                                                                
     "An Act relating to dual sentencing of certain juvenile                                                                    
     offenders; amending Rule 24.1, Alaska Delinquency                                                                          
     Rules; and providing for an effective date."                                                                               
                                                                                                                                
2:52:48 PM                                                                                                                    
                                                                                                                                
Representative Craig Johnson presented  an overview of HB 255                                                                   
that  would  allow  a  judge  to  simultaneously  sentence  a                                                                   
juvenile  to   both  a  juvenile   and  an  adult   sentence.                                                                   
Representative   Johnson  explained   that   if  a   juvenile                                                                   
successfully  completes  the juvenile  program  they will  be                                                                   
finished,  but  if  the  juvenile   fails  to  satisfactorily                                                                   
complete  the program  or to  reoffend, the  juvenile can  be                                                                   
subjected  to an adult  sentence. He  related that  this bill                                                                   
began as  a commitment  to his  constituents to address  gang                                                                   
violence. Representative  Johnson believed a  juvenile should                                                                   
be aware  that the consequences  of not complying  could mean                                                                   
adult prison time.                                                                                                              
                                                                                                                                
2:55:52 PM                                                                                                                    
                                                                                                                                
Representative Joule  remarked that some juveniles,  who have                                                                   
committed  egregious  acts, have  been  tried  as adults.  He                                                                   
wondered why  this bill was necessary  if that is  an option.                                                                   
Representative  Johnson  replied that  a  juvenile, tried  as                                                                   
adult, is  still an available  option of the court,  but this                                                                   
bill would  cover crimes that  may not automatically  rise to                                                                   
that higher  level of  sentencing. This  bill would  give the                                                                   
prosecutor an  opportunity to ask  for the duel  sentence for                                                                   
those cases  where the juvenile  would start in  the juvenile                                                                   
system but, if the rehabilitation  failed, the juvenile would                                                                   
end up in the adult prison.                                                                                                     
                                                                                                                                
2:57:45 PM                                                                                                                    
                                                                                                                                
Co-Chair Chenault asked if fifteen  was the correct number of                                                                   
states  currently practicing  duel  sentencing and  requested                                                                   
any  statistics  from those  states.  Representative  Johnson                                                                   
concurred that fifteen states  have this program and referred                                                                   
the  statistic   question  to   juvenile  experts   who  were                                                                   
available to testify.                                                                                                           
                                                                                                                                
2:58:55 PM                                                                                                                    
                                                                                                                                
Representative Gara voiced his  concern on the felony classes                                                                   
subject  to  the  duel  sentencing.   Representative  Johnson                                                                   
replied  Class B and  Class C  felonies. Representative  Gara                                                                   
questioned if that was all Class B and C felonies.                                                                              
                                                                                                                                
2:59:30 PM                                                                                                                    
                                                                                                                                
ANTHONY NEWMAN,  DIVISION OF JUVENILE JUSTICE,  DEPARTMENT OF                                                                   
HEALTH  AND SOCIAL  SERVICES,  replied that  this bill  would                                                                   
extend duel sentencing  to Class B felonies  against persons,                                                                   
as well  as, misconduct  involving weapons  in the  first and                                                                   
second   degree,   and   arson    in   the   second   degree.                                                                   
Representative   Gara   requested    clarification   on   the                                                                   
sentencing  process  if  a  minor  commits  a  violation.  He                                                                   
wondered if  the state would  have the discretion  to request                                                                   
the court  to sentence the juvenile  as an adult.  Mr. Newman                                                                   
clarified  that the Department  of Health  & Social  Services                                                                   
would request  the court impose  the adult sentence  that had                                                                   
previously  been  pronounced.  Representative  Gara  reasoned                                                                   
that  sometimes  personality differences  occur  between  the                                                                   
juveniles  and  their  counselors  and  wondered  what  would                                                                   
prevent  a counselor  from imposing  an adult  sentence on  a                                                                   
juvenile  they did not  like. He  wondered if  Representative                                                                   
Johnson  would  be  comfortable   with  a  Letter  of  Intent                                                                   
accompanying  the bill declaring  that it  is not the  intent                                                                   
for  insubstantial violations  would  result  in request  for                                                                   
adult sentencing.                                                                                                               
                                                                                                                                
3:01:08 PM                                                                                                                    
                                                                                                                                
Representative  Johnson  answered  that  he  would  have  not                                                                   
problem  with  a  Letter  of Intent  but  stressed  that  the                                                                   
department would prefer keeping  the juvenile in the juvenile                                                                   
system  rather  than  moving  them  into  the  adult  prison.                                                                   
Representative  Johnson informed  the committee that,  before                                                                   
any final decision was made, there  would be a hearing with a                                                                   
third party judge, avoiding personality conflict problems.                                                                      
                                                                                                                                
3:02:17 PM                                                                                                                    
                                                                                                                                
Representative  Gara  questioned  if  a  juvenile  commits  a                                                                   
probation violation  would that  be grounds for  imposing the                                                                   
adult sentence, if the judge and  hearing officer agreed. Mr.                                                                   
Newman replied that  an earlier version of the  bill included                                                                   
probation violation  as a condition to be transferred  to the                                                                   
adult system, but  it is not included in this  version of the                                                                   
bill.  Representative Gara  wondered what  would trigger  the                                                                   
transfer.  Mr. Newman replied  that for  a transfer  to occur                                                                   
the juvenile  would have  to commit  a felony or  misdemeanor                                                                   
crime, fail to obey the terms  of a restitution order, escape                                                                   
from a juvenile  correctional facility, or fail  to engage in                                                                   
the rehabilitation  program. Representative Gara  wondered if                                                                   
it  was  substantial  and  unsubstantial  to  be  late  in  a                                                                   
restitution  payment  or to  violate  a minor  infraction  in                                                                   
rehabilitation. He  questioned if the judge  had standards to                                                                   
follow or  was anything  written in  the bill declaring  that                                                                   
the adult  sentence can not  be imposed for an  insubstantial                                                                   
sentence.                                                                                                                       
                                                                                                                                
3:04:23 PM                                                                                                                    
                                                                                                                                
Mr.  Newman  maintained  that conditions  must  indicate  the                                                                   
juvenile is no  longer amenable to treatment  in the juvenile                                                                   
system. Representative Gara inquired  if the juvenile commits                                                                   
one of those infractions would  the juvenile be considered no                                                                   
longer amenable  to treatment. He requested  clarification on                                                                   
the findings the judge has to  make before imposing the adult                                                                   
sentence. Mr. Newman  responded that the judge has  to find a                                                                   
preponderance of evidence. This  would include the occurrence                                                                   
of a felony,  a misdemeanor involving  an injury, the  use of                                                                   
deadly  weapon,  the  juveniles   failure  to  engage  in  or                                                                   
satisfactorily  complete a  juvenile rehabilitation  program,                                                                   
or  the  juveniles  failure  to   complete  the  terms  of  a                                                                   
restitution order.                                                                                                              
                                                                                                                                
3:06:26 PM                                                                                                                    
                                                                                                                                
Representative  Gara  questioned   the  judge's  guidance  in                                                                   
determining if  a late restitution  payment should  result in                                                                   
imposing  the adult sentence.  Mr. Newman  responded  that it                                                                   
would have to be a preponderance of evidence.                                                                                   
                                                                                                                                
3:07:10 PM                                                                                                                    
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY  GENERAL, LEGAL  SERVICES                                                                   
SECTION-JUNEAU,   CRIMINAL  DIVISION,   DEPARTMENT  OF   LAW,                                                                   
referenced current  law, AS 4712 170E that states  if a youth                                                                   
is charged with  the commission of a felony  against a person                                                                   
or   arson,  and   the  court   makes  that   finding  by   a                                                                   
preponderance  of   evidence  then  the  adult   sentence  is                                                                   
automatically  imposed.  She elaborated  that  if a  juvenile                                                                   
failed in  any of the other  ways and the department  pursued                                                                   
the adult  sentence, the juvenile  still has the  opportunity                                                                   
to  prove that  they  are amenable  to  treatment and  should                                                                   
continue  under  the  juvenile  system.  Representative  Gara                                                                   
questioned  if  that  becomes  the  standard  for  the  other                                                                   
violations.  Ms. Carpeneti  agreed  with the  exception of  a                                                                   
felony against a person or arson.                                                                                               
                                                                                                                                
3:08:31 PM                                                                                                                    
                                                                                                                                
Co-Chair Chenault asked Representative  Johnson earlier about                                                                   
any  results  from  the states  already  using  this  blended                                                                   
system and asked again if anyone  could answer that question.                                                                   
Mr. Newman indicated  that the department has  consulted with                                                                   
national experts on duel sentencing,  but being a new system,                                                                   
it has not been thoroughly studied.  He remarked that fifteen                                                                   
states have  duel or  blended structuring  in place,  but the                                                                   
programs vary  according to  the statutes  in each  state. He                                                                   
revealed  that Alaska  has narrow  and  rigid criteria  under                                                                   
which duel sentencing  is currently being applied.  This bill                                                                   
would relax  the criteria  to put  it more  in line  with the                                                                   
process in the other fifteen states.                                                                                            
                                                                                                                                
3:10:45 PM                                                                                                                    
                                                                                                                                
Co-Chair  Chenault  questioned if  this  bill  would make  it                                                                   
easier or  harder for  the court  system in  Alaska to  use a                                                                   
blended system.  Ms. Carpeneti  replied that historically  it                                                                   
has   been  difficult   to   get   juveniles   waived  on   a                                                                   
discretionary basis.  She revealed that  in the late  90s the                                                                   
Legislature  adopted  a  mandatory waiver  for  very  serious                                                                   
offences  involving  sixteen  or  seventeen  year  olds.  The                                                                   
purpose  of the  duel system  is to  apply stiffer  penalties                                                                   
such as  the possible enforcement  of an adult sentence  on a                                                                   
sixteen or seventeen year old  who commit serious crimes. Ms.                                                                   
Carpeneti  believed this  presents the  juvenile with  a good                                                                   
reason  to  cooperate.  Ms.  Carpeneti   signified  that  the                                                                   
juvenile has to  be aware that there can be  consequences for                                                                   
not accepting what the juvenile system has to offer.                                                                            
                                                                                                                                
3:12:46 PM                                                                                                                    
                                                                                                                                
CHRIS   PROVOST,  OFFICE   OF   PUBLIC  ADVOCACY,   ANCHORAGE                                                                   
(Testified  via teleconference),  remarked that  he has  been                                                                   
authorized  by the  Anchorage  Office of  Public Advocacy  to                                                                   
comment. He thanked  the bill's sponsor for  the improvements                                                                   
made  from the  original proposal.  He voiced  the Office  of                                                                   
Public  Advocacy concern  about incarcerating  a minor  in an                                                                   
adult  facility  before  the final  decision  was  made.  The                                                                   
Office of  Public Advocacy  believed it  would be better  for                                                                   
the juvenile to remain in the juvenile correctional system.                                                                     
                                                                                                                                
3:15:52 PM                                                                                                                    
                                                                                                                                
Mr.  Provost responded  to  the previous  question  regarding                                                                   
result studies  from other states. He mentioned  that Florida                                                                   
is the only state to have completed  a thorough study and the                                                                   
program has not worked out well  for public safety or for the                                                                   
juveniles. He added  that Florida's bill is  harsher than the                                                                   
one before the committee.                                                                                                       
                                                                                                                                
3:17:09 PM                                                                                                                    
                                                                                                                                
Representative  Kelly questioned how  this bill targets  gang                                                                   
behavior. Representative  Johnson recalled that  his original                                                                   
concept  was to put  gang members,  no matter  their age,  in                                                                   
jail but  this approach was changed.  He explained that  if a                                                                   
young  gang member  commits  a  serious offense,  they  would                                                                   
automatically  be released  when they  became an adult.  This                                                                   
bill  shows the  juvenile that  any serious  offense can  now                                                                   
translate  into   real  jail  time.  Representative   Johnson                                                                   
believed this would take the "hero  status" from a young gang                                                                   
member and give them the opportunity  to make a life decision                                                                   
of getting with the program or doing hard time.                                                                                 
                                                                                                                                
3:20:07 PM                                                                                                                    
                                                                                                                                
Co-Chair Meyer MOVED to ADOPT Amendment 1:                                                                                      
                                                                                                                                
  Page 3, lines 28-31:                                                                                                          
   Delete all material and insert:                                                                                              
  "(4) if                                                                                                                       
     (A) petition has been filed under AS 47.12.160(d) to                                                                       
       impose an adult sentence;                                                                                                
     (B) a court, at a hearing held within 48 hours of the                                                                      
     filing of the petition, finds that there is probable                                                                       
     cause to support the allegations in the petition; and                                                                      
     (C) the department transfers custody of the minor to                                                                       
     the Department of Corrections pending the resolution of                                                                    
     the petition."                                                                                                             
                                                                                                                                
Co-Chair Chenault OBJECTED for discussion purposes.                                                                             
                                                                                                                                
Representative  Johnson  pointed   out  that  this  amendment                                                                   
provides for a hearing, within  forty eight hours, before the                                                                   
juvenile enters  an adult prison.  It would also  provide for                                                                   
the transfer  of custody  to the  Department of  Corrections.                                                                   
Representative  Johnson maintained  that  leaving someone  in                                                                   
the  juvenile  facility  can result  in  a  disruptive  "hero                                                                   
status."   Representative  Kelly   asked  if  the   amendment                                                                   
addressed into which facility the juvenile would be moved.                                                                      
                                                                                                                                
3:22:22 PM                                                                                                                    
                                                                                                                                
Representative Johnson  replied it would be  the "big house."                                                                   
He  illustrated  the  three  levels   at  the  Department  of                                                                   
Corrections facility for placing  juveniles: total isolation;                                                                   
placed with  other juveniles; or  an area out of  the general                                                                   
population.                                                                                                                     
                                                                                                                                
Co-Chair Chenault WITHDREW his OBJECTION.                                                                                       
                                                                                                                                
There being NO Objection, Amendment 1 was adopted.                                                                              
                                                                                                                                
3:23:33 PM                                                                                                                    
                                                                                                                                
Co-Chair  Chenault  commented   that  all  the  fiscal  notes                                                                   
reflected a zero  cost. He questioned if this  bill increased                                                                   
or decreased the number of juveniles.  Representative Johnson                                                                   
replied there  were some  indeterminate numbers reflected  in                                                                   
the fiscal  notes. He expected  an impact, but was  unable to                                                                   
determine exactly how much at this time.                                                                                        
                                                                                                                                
3:24:30 PM                                                                                                                    
                                                                                                                                
Mr. Newman  remarked that the  Divisions of Juvenile  Justice                                                                   
estimated that  approximately ten to twenty  juveniles a year                                                                   
would be  recommended  for duel sentences.  He expressed  the                                                                   
hope that most  juveniles would not refuse to  participate in                                                                   
the  rehabilitation  or  commit  further  offences.  Co-Chair                                                                   
Chenault  remarked  that  one  of the  fiscal  notes  states,                                                                   
"Under duel sentencing if the  minor unsuccessfully completes                                                                   
their sentence in the juvenile  system they will be placed on                                                                   
adult    felony    probation    under    DOC    supervision."                                                                   
Representative  Johnson  replied  this  addressed  the  older                                                                   
version  of the  bill  which states  they  will remain  under                                                                   
juvenile probation.  He stated  that the  fiscal note  is not                                                                   
accurate. (Department of Corrections, 3/3/08)                                                                                   
                                                                                                                                
3:27:28 PM                                                                                                                    
                                                                                                                                
Co-Chair  Chenault MOVED  TO  REPORT CSHB  255  (FIN) out  of                                                                   
committee with the accompanying  fiscal notes. There being NO                                                                   
OBJECTION, it was so ordered.                                                                                                   
                                                                                                                                
CSHB  255 (FIN)  was REPORTED  out  of Committee  with a  "do                                                                   
pass" recommendation  and new fiscal notes by  the Department                                                                   
of Corrections, the Department  of Administration, the Alaska                                                                   
Court System,  the Department  of Health and Social  Services                                                                   
and a  previously published fiscal  note from  the Department                                                                   
of Law.                                                                                                                         
                                                                                                                                
3:29:08 PM                                                                                                                    
                                                                                                                                

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