Legislature(1995 - 1996)
03/23/1995 02:05 PM House HES
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* first hearing in first committee of referral
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+ teleconferenced
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HHES - 03/23/95 HB 104: DISCLOSURE OF JUVENILE RECORDS Number 160 ROD MOURANT, Administrative Assistant to Representative Pete Kott, said HESS Committee members should have before them the proposed CS for the Sponsor Substitute (SS) for HB 104. This CS was drafted after the last HESS Committee hearing on this bill. At the last hearing, testimony and concerns were heard from the Department of Law (DOL) and the DHSS about the impact of the disclosure of juvenile felony crimes by the DHSS and the effect this would have on federal funding. MR. MOURANT said while Representative Kott still strongly believes educators and the general public have the right to know who the serious juvenile offenders are in society, he does not want to disclose that information at the risk of federal funding for important programs. Therefore, Representative Kott's office is offering version "G", a proposed CS. Number 263 MR. MOURANT explained the way the bill is currently written, it pertains to the statutes that deal with disclosure of information and the public's right to know information. The amendment stipulates that records relating to a juvenile who is arrested for a felony are public information which may be released by the employing agency of the arresting officer in the case of a juvenile committing a felony. MR. MOURANT noted that in a report called "Releasing Juvenile Delinquent's Names to the Media," which was a study done in 1994, by the National Center for Juvenile Justice, only four states and the District of Columbia still forbid the release of serious offender information in the case of juveniles. Those states are Hawaii, North Carolina, Vermont and Wisconsin. Number 324 MR. MOURANT said comments were solicited from the agencies through the committee staff. The proposed CS was circulated early, and comments were asked for. Mr. Mourant was told prior to the HESS Committee meeting that the DOL still had a concern about the impacts of this legislation on potential funding. This is because evidently, even though a juvenile is charged with a felony, the prosecution is not conducted by the District Attorney's (DA's) Office but rather by the Division of Family and Youth Services (DFYS). MR. MOURANT said his office was not aware of that, even at this late date. However, this is an important consideration and it will be brought up in the next committee of referral, which is the Judiciary Committee. That would be the recommendation of Representative Kott, if the HESS Committee members were gracious enough to allow the Judiciary Committee to address the issue of the prosecution of juvenile felons. Number 396 MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, said the situation is that law enforcement officials would be making these arrests. That is the first step. Therefore, the release of their police blotter information would be coming from the law enforcement agencies instead of from the DHSS DFYS. That avoids the issue of the loss of federal funding, because the DFYS is not releasing that information. MS. KNUTH said she previously pointed out that if the wrong juvenile was arrested, or if it was obvious that the wrong charge was leveled against the juvenile (it should have been a misdemeanor charge) and the charge is reduced right away, that is going to happen once the DFYS is involved in the case. The division is going to reduce the charge, acting with the civil side of the Attorney General's Office. Because they are under that penalty of jeopardizing federal funds, juveniles are going to be in a unique situation, different from that of adults. MS. KNUTH explained that the original arrest information can be released, but correcting information, either immediately or down the road, will not be available for juveniles because it will come from the DFYS and that will jeopardize the funds. This is sort of an anomaly, and the consequences must be weighed. Number 504 CO-CHAIR BUNDE noted the situation is much like the daily news reporting the arrest of a legislator, but news of his/her vindication is usually found in the depths of the paper. Co-Chair Bunde asked for Ms. Knuth's recommendation to cure this problem. MS. KNUTH said there does not seem to be a cure. All that can be done is balance the situation, and decide whether or not the release of information to the public is more important even if there is going to be some mistaken information that cannot be undone. On the other hand, the legislators could decide that the possibility of wrong information is a significant enough factor that they are not comfortable releasing that information. MS. KNUTH added she knows of at least one case in Juneau in which this type of situation occurred. She was working in the DA's Office when an officer from the Juneau Police Department simply arrested the wrong juvenile on a serious offense. He had come to the DA's Office for a warrant, and then he came back the next week asking for another warrant. MS. KNUTH asked the officer why he needed another warrant, and he said, "Oh, that wasn't the right guy after all." Ms. Knuth was horrified. It had not occurred to her that this happened in modern-day law enforcement. Part of the problem is that there are basically two types of law enforcement officers. There is a "new school" of pretty competent people. These people have a fair amount of education and view their job very carefully. There is still, however, an "old school" that the officer of which she spoke would belong to. Things like the arrest of the wrong juvenile did not seem to matter as much. Number 616 MS. KNUTH said part of the officer's analysis had been based on the fact that a juvenile's arrest would not be public anyway, therefore, there was not as much at risk. Ms. Knuth hopes that if this information is publicized, officers like him would take greater care. CO-CHAIR BUNDE asked her for a guess on the number of juveniles charged with what would be a felony, if they were an adult, who have their charges reduced. He asked if that was an infrequent occurrence. MS. KNUTH said that was a fairly frequent occurrence, however, more often than not it is a matter of negotiation rather than the initial charge having been incorrect. There is simply a decision to treat it as a lessor offense. Sometimes, the crime was not the higher offense, and that is fairly infrequent. Most of the time, the charge is accurate. However, in terms of what the adjudication ends up being, Ms. Knuth would say as often as half of the time, the charge ends up being reduced from a felony to a misdemeanor for juveniles. This is not because the conduct was not felonious, but because that is the way the system functions. Number 707 CO-CHAIR TOOHEY said anybody can look at the records. Before a juvenile is tried, the crime he has committed is listed as a felony as if he were an adult. This is put in the record. However, the non-felony juveniles are not put into the same record. Therefore, this is an arbitrary decision by the police officer. MS. KNUTH interjected that hopefully, the decision is not arbitrary. Sometimes, however, it is a judgement call. CO-CHAIR BUNDE said the juvenile has not gone through the process of adjudication. Number 749 REPRESENTATIVE ROBINSON asked Ms. Knuth to talk about cases in which she has been involved where information would be released under HB 104. CO-CHAIR BUNDE acknowledged the presence of Representative Vezey, at 3:10 p.m. MS. KNUTH said burglary in the first degree would be a class B felony. This would be the burglary of a residence. The burglary of a business would be a class C felony. In the case of theft, if the amount stolen is over $500, the theft is considered a felony. Under $500, and it is a misdemeanor. Possession of any illegal drug except marijuana, whether you were going to sell it, use it or give it away, is a felony offense. Most weapons offenses that juveniles will be involved in would be a misdemeanor. Number 869 REPRESENTATIVE ROBINSON recounted a case in which a group of young men visited an island near Juneau and took a shovel to the Federal Aviation Administration (FAA) Building. The vandalism was a felony. MS. KNUTH said it is not very difficult to do more than $500 worth of damage to property. For example, if a juvenile goes joyriding and damages the car to an amount over $500, that is a felony. REPRESENTATIVE ROKEBERG referred to line 9 of the bill, which says "records relating to the arrest of a juvenile...." He asked if an indictment or arraignment level is reached after the arrest. He does not know the criminal law procedures in various jurisdictions, however, Ms. Knuth brought up the potential for a false arrest situation. Representative Rokeberg asked if there is one more step that could be taken before the information is released. Perhaps this step would help overcome the possibility. Number 939 MS. KNUTH said that is what happens in adult cases. Because the Civil Division of the DOL works with the DHSS on juvenile cases, she does not know if there is a counterpart like that for juveniles. She said she does not know if they are placed before a Grand Jury or not. However, if they are, this is still at a point where the DFYS is involved in the case. She understands the federal government has said the moment documents generated by or going through DHSS are released, the funds are jeopardized. That is why people were trying to work backwards to the arrest, which is about the only thing that happens before DHSS gets involved. Number 993 REPRESENTATIVE AL VEZEY commented it is important to remember that destroying federal property is a federal crime, not a state crime. state and federal statutes are not necessarily the same across the board. Number 1036 LEE ANN LUCAS, Special Assistant (Legislation), Department of Public Safety (DPS), said the department has no philosophical objection of the disclosure of information to identify juvenile felons. As a matter of course, at the time of charge or arrest a press release is generated which is a brief summary of the incident, the date, and time. If the accused was an adult, it would include identifying information. The only difference is for a juvenile, their name is not mentioned. If the intent of this legislation is to just identify the juvenile, the DPS would simply add that information to the press release. MS. LUCAS said on line 9 of the bill, which refers to "records relating to the arrest," it was unclear to the DPS if the bill was referring to the information included in the press release, or if the bill stipulated that more information than that would be released. MS. LUCAS suggested that perhaps the bill could state more specifically what information is released on the juvenile, rather than "records relating to the case." Number 1108 CO-CHAIR TOOHEY asked if anyone in the room could tell her how often innocent juveniles are labeled felons, and how often children are wrongly accused. CO-CHAIR BUNDE asked them also to give a number on how many people are charged and not convicted. MS. KNUTH said those are two different questions. She said she does not know how many people are arrested who had nothing to do with the incident. She stated she would like to think the incidents are unusual. Perhaps someone from the DFYS or someone from the Human Services Division of the Attorney General's Office would be able to answer that question. MS. KNUTH said the vast majority of cases are those that are charged with a felony and the charge ends up something short of an adjudication for that felony. This is because on first offenses, there is a fair amount of desire to not go all the way to adjudication. The courts try to use the leverage of the charge and the threat of adjudication to accomplish a number of rehabilitative goals such as restitution, treatment, etc. Number 1189 CO-CHAIR TOOHEY asked if it was being assumed that the crime is a first offense. MS. KNUTH said not necessarily. CO-CHAIR TOOHEY said the juvenile could be a hard-core 16-year-old who has lived a life of crime since he was 12. MS. KNUTH said she believes that most individuals are first offenders. Those who are repeat offenders occupy a great deal of paperwork and the attention of the system. However, in terms of numbers coming through, there are a lot of first offenders who are not seen again. Number 1219 REPRESENTATIVE G. DAVIS noted on page 1, line 9, where it says, "records relating to the arrest...", Representative G. Davis said he supposed the bill assumes the records being released are the same as what is being released in an adult case. MS. LUCAS said that is the intent of the bill, but the DPS would be more comfortable if the bill was more specific. CO-CHAIR BUNDE said he would be more comfortable too. For example, in a rape case, the entire record cannot be made public. Those records could not be released in an adult case; however, this bill says, "records relating to the arrest...." A person could point to the statute and demand that it be followed. REPRESENTATIVE ROKEBERG said (A) on page 1 may give some direction. There is a standard procedure now set about in existing statutes. Representative Rokeberg said he felt that is what is being reflected. CO-CHAIR BUNDE asked for correction if he was wrong, but he did not believe if someone is the victim of a crime, they wouldn't want their personal lives available to the public as part of the arrest record. Number 1295 MS. KNUTH said this type of information is certainly not available while the investigation is going on, before the case has gone to trial and has been completed. This is because it can interfere with the investigation, it can interfere with a fair trail. If there is a conviction, some records become public at that point. However, the privacy interests of the victim would be weighed with whatever the interest in disclosure is. Generally, the victim's name is going to be retracted. That is required under the Victim's Rights Act for certain cases of sexual abuse and sexual assault offenses. MS. KNUTH said the state would not want a statute that authorizes the disclosure of that type of information in juvenile cases when the state has decided, as a matter of policy, that it does not want that information released in adult cases. CO-CHAIR BUNDE noted that the bill does refer to after the arrest, therefore, it does seem to broaden the scope of information that may be released. Number 1340 REPRESENTATIVE ROBINSON asked what new crimes are being added over and above what is included under the jurisdiction of SB 54, passed last year, which was the automatic waiver bill. She asked if rape cases would not automatically fall under that bill. MS. KNUTH said the automatic waiver is for juveniles 16 and older. Therefore, this bill could affect an offense committed by a juvenile who is under the age of 16. In addition to that, felonies covered would be the possession of drugs, burglary offenses, property damage and theft of over $500. REPRESENTATIVE ROBINSON said therefore, everyone under the age of 16 who commits crimes that would be felonies, if they were adults are being included, plus all those new crimes. MS. KNUTH noted the sponsor has made it very clear he did not intend for any more than police blotter information to be released. Therefore, this is a drafting problem from Legal Services. They have written language which provides for a broader release of information than simply blotter information. Police blotter information basically only includes the name of the juvenile, age and the name of the offense. Ms. Knuth knows the sponsor was only looking to release that information. The bill reflects an inadvertently broader scope. Number 1405 CO-CHAIR BUNDE agreed. However, the state does not want to create statutes that assume goodwill. REPRESENTATIVE ROKEBERG noted that subsection (6) lays out the law enforcement disclosure criteria. The statute could refer into the new addition for the requirements of that criteria. MS. KNUTH said the concern is that (2) is on equal footing with (6). One is talking about juveniles, and the other is talking about everything except juveniles. Therefore, as a matter of statutory interpretation the court would say, "what relates to juveniles is more specific and therefore controlling." MS. KNUTH said what would be most clear would be to amend (2)(A) so it is only authorizing the disclosure of police blotter information, specifically name, age, and offense. This would be better than saying "records relating to the arrest." Number 1462 CO-CHAIR BUNDE said Ms. Knuth has given some direction to the bill's sponsors as far as language, and there is some drafting that does not need to be done at the table. Co-Chair Bunde asked that the last person wishing to testify does so, and the bill will be held until the language is tightened up. Co-Chair Bunde said he is still concerned about the release of information at the time of the arrest and not at the time of the conviction. He does not know if there is a way that can be worked around. It does not appear so. MS. LUCAS said the DPS shares the concerns of the DOL concerning the correction of public misinformation. Number 1509 MARGARET W. BERCK, Representative, American Civil Liberties Union (ACLU), Alaska Chapter, said her organization is essentially opposed to what this bill does for the wholesale release of juvenile records and information regarding juveniles. MS. BERCK had been working with the bill available on the ground floor of the Capitol Building, noted as SSHB 104. She now understands there is a working draft that changes some provisions. However, some general comments she has regarding an earlier version of this bill may be of some assistance to HESS Committee members in making their decision. MS. BERCK said when the bill talks about age 14 and up, and all felony cases, that would include perhaps most juvenile cases. She said she has been practicing criminal law in Juneau since 1976. Ms. Berck indicated she has done many court appointments and has represented many juveniles. Rarely is a juvenile in the court system under age 14. Occasionally someone would be younger, but the incident would stick out in her mind. Therefore, the bill covers about all cases. Number 1578 MS. BERCK said pretty much all of the juvenile cases are initially dealing with felony cases. Rarely is there a juvenile who is in juvenile court because of multiple minor offenses, has been through the revolving door, and who will be shipped off to the juvenile correctional facility. That has happened, however, it is highly unusual. Most juveniles are charged with felonies. If a juvenile is not charged with a felony, he or she does not even get a court appointed attorney. Therefore, most of the cases are charged as felonies, and this bill would sweep in pretty much the entire system. MS. BERCK said Co-Chair Toohey had asked how many juveniles may have been wrongly arrested, at least as far as the initial charges. That is difficult to say. However, as far as Ms. Berck knows, in the last ten years in Juneau, she is aware of only three juvenile cases that actually went to jury trial. Most cases result in some sort of plea-bargaining mechanism. As Ms. Knuth indicated, most of the time juveniles are charged with a felony, the charge is reduced to a misdemeanor, and something is worked out. These cases do not go to trial. Number 1642 MS. BERCK recalled that of the three she knows did go to trial, every single one was acquitted. Because Juneau is a small community, everyone knows who these people are. In one case, although the records were confidential, everyone knew who the alleged perpetrator was and what he had done. Therefore, he waived his own confidentiality because he wanted it in the press that he had been acquitted. MS. BERCK said traditionally, arrest records are much more shaky than the records resulting from the prosecutor's review, the evidence and the charge reviewed by a Grand Jury. In this type of procedure, things are looked at more carefully. Charges are adjusted to particular facts. MS. BERCK said traditionally, arrest records have always been somewhat suspect. In adult cases, arrest records may not necessarily be considered without a subsequent conviction when an adult criminal is being sentenced. Last week, Ms. Berck was involved in a case in which a very old arrest record was considered. The person appealed, and the conviction was overturned. The judge did not consider that arrest record. MS. BERCK continued that in the U.S. Supreme Court decisions regarding Title VII, arrest records have been frowned upon by use of employers because the people who get arrested tend to be non- caucasians. There are many racial problems with arrest records that have been considered in Title VII litigation. Number 1738 MS. BERCK reiterated that traditionally, arrest records have a much more shaky footing because they have not gone through a more detailed analysis by perhaps a Grand Jury or a review by a prosecutor. MS. BERCK responded to the question about what happens in juvenile court, and whether or not there is some sort of mechanism such as an indictment or Grand Jury proceeding. The juvenile procedure does not work that way. There is a petition filed alleging the child to be a delinquent minor as a result of having committed some particular act. The act is described with some detail in the petition, and basically that is it. There is no preliminary hearing or Grand Jury process in the juvenile proceeding. MS. BERCK explained the juvenile is brought into court under that petition. He/she admits or denies the allegation, and then usually returns to court 30 days hence. The judge is told whether or not he/she is going to plea bargain or go to trial. If trial is chosen, the case is set for trial. However, that does not often happen. Number 1790 CO-CHAIR TOOHEY asked if Ms. Berck was basically referring to a child who is guilty. MS. BERCK said a judge once told her, "Everybody is guilty of something. You just have to make sure you have the right charges on them." That is something Ms. Berck often remembers. She referred HESS Committee members back to the bill, the video tape presentation, and earlier discussion about the kinds of felonies. It does not take much to step over the line from a misdemeanor to a felony. It takes one dollar--$499 versus $500. In the circumstance of what the basketball player in the video was charged with, having taken $48 dollars from a purse, she asked HESS Committee members to remember that it all started out as a joke. MS. BERCK said if those boys had taken a backpack with a pair of prescription glasses inside, perhaps also a calculator, and the backpack cost $80, it does not take much to get up to $500. If those boys had taken a credit card and charged $20 worth of gas on that card, it would be a felony. Forgeries are felonies. It does not take much. The question is whether the state really wants to label a boy such as the basketball player for the rest of his life. Does the state want to prevent him from getting a basketball scholarship? Number 1862 MS. BERCK continued that one of the benefits of the Youth Courts was that these children are given the opportunity to work their way out of acquiring a record. These individuals can have a youthful indiscretion that does not affect the rest of their lives. Juvenile records are not necessarily kept completely confidential. The court has the ability to order the release under existing law. On behalf of the ACLU, she asked HESS Committee members to seriously consider whether or not they really want to allow for the wholesale release of all juvenile records, because basically that is what this bill does. Number 1899 CO-CHAIR TOOHEY said she thinks most children are not felons. However, if disclosure were to deter one child from stealing, maybe it is worth it. MS. BERCK did not mean to suggest that all children are felons, and Co-Chair Toohey acknowledged that. CO-CHAIR TOOHEY said that however, most charges are going to fall under felonies. MS. BERCK said if most of the juvenile cases filed are studied, they will involve individuals aged 14 to 18, and they are going to be charged with felony offenses. The question is, how much would this really deter the person? Oftentimes, teenagers do not realize the consequences of their actions. Ms. Berck is of the personal opinion that this is primarily the fault of educators. Number 1942 CO-CHAIR BUNDE thanked those who participated. If he had his preference, juveniles who were convicted of felonies would be subject to disclosure. However, he has problems with the release of information based on the arrest record. There are things that need to be worked out in this bill. There are language and drafting questions, and he would like the bill to be sent back into the subcommittee to see if the problems can be addressed. He said the bill will be held in committee. REPRESENTATIVE VEZEY said he has not seen an NCAA scholarship contract, and he is not aware of any restrictions concerning felony convictions or arrest records. MS. BERCK did not know of any. She referred Representative Vezey back to the videotape, which he was absent for. One of the concerns raised in this videotape was that a juvenile record may make a difference whether the basketball player would get a college scholarship. Ms. Berck said she would think such a situation may affect scholarships. However, this would probably vary from one university to the next, and also vary with how well one plays basketball. Number 2009 REPRESENTATIVE ROKEBERG assumed there are procedures to remove felony convictions from a juvenile record, if in fact a juvenile has been convicted of a crime that is a felony. He asked if this was possible if an appeal is made to the court to that effect. He asked about the procedures for that. MS. KNUTH said if this is an adjudication on a felony offense, the record is sealed and remains sealed. It is only used by prosecutors and the judge if one is prosecuted as an adult for a felony. Generally, however, if an individual is being treated as a juvenile, all of the proceedings have been confidential. The record is sealed. MS. KNUTH said if the individual is waived and treated as an adult, he/she can be prosecuted. If he/she is convicted of a lessor offense or acquitted, he/she can have the records sealed. Frankly, this may not be worth much after the fact. However, the provision exists in the waiver bill. Number 2062 REPRESENTATIVE ROKEBERG was trying to collect a fact pattern concerning the experience of a friend of his. When his friend was 18, he had a minor traffic violation that ended up affecting his military service career. He subsequently found out the violation had been removed from his record and he did not know it. REPRESENTATIVE ROKEBERG said he is interested in the affect of that. If, in fact, these names were divulged and became part of the public record, would there be any procedure to make amends as a juvenile or young adult? Currently, those records can be sealed. He stated it is his understanding that the records have not been removed, they are only sealed. MS. KNUTH said everybody who learns that your son has been arrested for a felony offense is supposed to bear in mind that he is presumed innocent until proven guilty. That is the protection he is offered. Number 2109 REPRESENTATIVE ROBINSON reiterated the case in which a young man broke out the window at the FAA building. The agreement was he should go into the military, and he was subsequently honored two years later in Juneau's Fourth of July Parade when he came home from the Gulf War. Representative Robinson said we must constantly remember who we could be talking about. The man now has a four- year college degree and is doing well. MS. BERCK asked to respond to Representative Rokeberg. It seemed to her, from her earlier version of the bill, it talks about the provisions for sealing the records. This would delete the information set out in (f). CO-CHAIR BUNDE said there is a new CS for that bill, that is a totally new bill.
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