Legislature(1995 - 1996)
02/05/1996 01:03 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
HB 75 - INCREASED PENALTIES FOR JOYRIDING Number 1748 CHAIRMAN PORTER presented HB 75 regarding car theft and he noted the sponsor, Representative Sanders. REPRESENTATIVE JERRY SANDERS stated that HB 75 is not about joyriding or mischief, but about vehicle and auto theft. In 1995 there were over 3,000 vehicle thefts statewide in Alaska. He noted that there was a vehicle theft bill last year. It went to the governor's desk and was vetoed. If this had past last July, he wondered how many of the roughly 1500 vehicle thefts could have been avoided or how much restitution would have been paid. REPRESENTATIVE SANDER said he was attempting to craft a middle ground bill which the governor will approve and one which will pass through the legislature in order to serve the public. The public needs control over these auto thefts, especially with the juvenile incidences of this crime, there is no control, and in relation to adults, it's weak. CHAIRMAN PORTER pointed out that a CS was before the committee which incorporates the work which was done on the bill from last year. The original parts of bill from last year in the CS were those sections which would make first offense car theft a felony, the provisions which were in the governor's bill and the provision that juveniles who commit the offense of car theft would be sent directly to district court to face an A misdemeanor offense. Number 1910 REPRESENTATIVE BUNDE moved to adopt the CS for HB 75(JUD). REPRESENTATIVE FINKELSTEIN asked again about the differences between the CS and the bill. CHAIRMAN PORTER explained that the CS basically was the moving up of joy riding in general terms for adults from a misdemeanor to a felony. The bill which came from State Affairs was this bill. The Judiciary CS with it's pending motion, incorporates into this, the bill from last year with sections affecting juveniles as outlined. REPRESENTATIVE FINKELSTEIN requested that maybe someone from the Attorney General's office address this issue, since this newest format seems to be somewhat controversial. He noted that the Judiciary Committee worked extensively on this issue last year and it ended up in a confused situation because of the mixed messages expounded in the testimony. Number 2015 CHAIRMAN PORTER hearing no objection moved the CS for HB 75(JUD) version (G) in front of the committee as a working document. Number 2040 MICHAEL KORKEL testified by speaker phone from Fairbanks in support of HB 75. He stressed that people make two major investments in their life, one being their house, the other their vehicle. His organization applauded the steeper penalty from a misdemeanor to a felony. He noted that SB 220 and HB 75 do not seem to be very different from one another. He did outline one concern they had regarding the language about the offense in the second degree under the circumstances of theft other than a motor vehicle, which he assumed this could mean a snow machine or a three wheeler. He felt as though these vehicles did not constitute the same penalties. Number 2192 DEL SMITH, Deputy Commissioner, Public Safety testified in support of creating a felony offense for stealing an automobile as outlined in HB 75. The area in which they differ with the legislation is that this felony offense when applied to a juvenile, should stay in the juvenile court. He believed that auto theft should be punished strongly and he believed there was a chance that if these cases were brought to District Court there might be an opportunity for these juveniles to not be prosecuted because the court might not have the resources to do so and secondly, the adult system right now is not running very efficiently as it is. Number 2363 REPRESENTATIVE FINKELSTEIN asked Mr. Smith to comment on the changes in the new CS before the committee, more specifically about the elimination of the automatic waiver, the treatment of off-road vehicles and section 9, which Representative Finkelstein had not had a chance to fully understand at the moment. Number 2390 MR. SMITH responded that as to the automatic waiver, the Department of Public Safety and law enforcement in general, did not support this automatic waiver to District Court of youthful offenders who steal cars. As to the off-road vehicles to be excluded, the department agrees that this should not be a felony. CHAIRMAN PORTER responded to Representative Finkelstein's concerns about section 9, which is existing law. This law provides for traffic offenses of juveniles be presented to District Court and misdemeanor car theft would be added to this provision. TAPE 96-14, SIDE B 000 CHAIRMAN PORTER stated that under this bill there is the availability for increased sentencing after second and subsequent offenses, but this would remain a misdemeanor. It would remain in the adult court system, as opposed to returning it to the juvenile court system. Number 028 REPRESENTATIVE BUNDE asked Mr. Smith for a percentage of car theft incidences which involve juveniles rather than adults. MR. SMITH stated that in 1995 there were 604 people were arrested for joyriding. Of these, approximately 400 of them were adults, hence about one-third of these numbers were juveniles. He pointed out that this was true for those which were caught. In Anchorage of the same year, there were approximately 2100 vehicles stolen, and out of this number the criminals were not apprehended. It would be impossible to determine the juvenile numbers for these statistics. 097 REPRESENTATIVE VEZEY asked of the 2100 vehicles, how many were recovered. MR. SMITH said about 90 to 95 percent of the cars were recovered. Number 250 JOHN NEWELL, Chief of Police, City and Borough of Sitka, testified by speaker phone in favor of HB 75. He stated that he's the President of the Alaska Association of the Chiefs of Police as well. He felt as though Alaska was been long overdue in making auto theft a felony. Alaska needs stiffer penalties to help act as a deterrent to those who would take the property of another person. MR. NEWELL recommended that the automatic waiver for juveniles not be included in this legislation. He pointed out that there was a definite problem in the system where they want to treat juvenile's on the arrest and trial side as juveniles, but when they get them incarcerated the system requires that they be treated as juveniles. He pointed out that the system already allows for in specific situations, that a defendant be considered an adult rather than a juvenile. Number 377 DIANE WORLEY, Director, Division of Family and Youth Services (DFYS) testified in support of HB 75 in making vehicle theft a felony. She referred to research which had been conducted and printed on hand-outs for the committee, regarding how the department currently address felonies in the present juvenile probation system. MS. WORLEY felt as though misinformation existed in relation to what the department does with juveniles. The first page of this hand-out gave a breakdown of different violations or referrals which the department receives, showing that 23.3 percent of juveniles have committed felonies. By adding car theft as a felony offense, this would increase the felony charges by 10 percent, ie. adding 200 felonies into the system. MS. WORLEY referred to the second page of this handout. The category as labeled N/A related to those juveniles who are referred to the department through written report. The department does not see the child directly through this means. The categories listed below this first heading were those children who DFYS retains custody of after an incident. Seventy-eight percent of all juveniles are referred to the department by written report. Of this number 18.5 percent are detained at the time of the incident. MS. WORLEY moved onto the next chart. She noted, of the intakes received, 40 percent were petitioned to court for all cases. 55.2 percent were petitioned to court for those with a prior referral to the department. The remainder included a variety of situations, for instance, the category labeled "adjusted with referral" could mean that this individual might go to youth court, mediation, restitution, etc. "Adjusted with conference" would mean that parents were involved and they were taking action to participate to make sure there was some type of follow through with restitution, community work service, etc. She outlined some additional categories for the pleasure of the committee. MS. WORLEY referred to the next page. This information dealt with those instances once the juvenile goes to court. These would include all the petitioned cases. She gave the breakdown as follows: 1.4 percent of all cases were waived to adult court, a minuscule part are withdrawn, 62.2 percent were adjudicated, 9.2 percent were held in abeyance or suspended, 2.7 were diverted, 11.3 percent were dismissed and 12.6 percent were in process. MS. WORLEY went on to add with the current felonies in the department, a large percent of them do go to court and are adjudicated with resulting accountability of their actions. In discussing these in the context of the automatic waiver of district court, one of the advantages in the juvenile system is that the department monitors these kids, with longer terms of probation. By keeping them in the juvenile system they are monitored more closely and the parents become more involved and the department tries to get as much restitution as possible, etc. Number 702 REPRESENTATIVE JOE GREEN asked about the recidivism rate of these juveniles. MS. WORLEY stated that she didn't have this specific number, but did refer him to the felony numbers. She cited that 51 percent of the felonies referred to the department last year were individuals who already had a prior offense, but not necessarily felony in nature. REPRESENTATIVE GREEN noted the horrendous fiscal note attached to this bill and asked Ms. Worley what the department's restitution record was like. MS. WORLEY felt as though the department does a good job in this area. The department really pushes for restitution in any crime, in either the form of money or under a work pay-back situation. Number 796 CHAIRMAN PORTER stated that if the committee passed just the original State Affairs bill, they would be making first offense car theft for anyone a felony. If a juvenile violated this statute they would technically be charged under a petition for delinquency. This would be a regular juvenile handling of an offense like this. But, the seriousness of the offense that this petition alleges would rise to the felony level as opposed to the present misdemeanor level. Technically, they're not charged with a misdemeanor or a felony, they're charged as a juvenile who is treated as a potential delinquent, as opposed to having committed a specific offense that amounts to a crime. Number 876 REPRESENTATIVE BUNDE asked about the 51 percent of juveniles who had prior referrals, and wondered how many of these had been charged with joy-riding. Number 900 MS. WORLEY stressed that this would overburden their computer ability, because car theft is now a misdemeanor, which is lumped in the criminal mischief category. She stated that during fiscal year 1994, 205 auto thefts were committed by juveniles. REPRESENTATIVE FINKELSTEIN was a bit confused about the disposition of these cases. If a juvenile was referred to the department and convicted as a minor under a misdemeanor offense, if they were an adult, this would be considered a felony. How would the department categorize these youths under a felony offense under this new legislation. CHAIRMAN PORTER pointed out that if these juveniles committed a felony they would not go through the Department of Family and Youth Services. Presently, if a sixteen year old has too much to drink and steals a car, he'd be charged with driving while intoxicated (DWI) and car theft. He would go to adult court for the DWI and juvenile court for the car theft. Number 1008 REPRESENTATIVE FINKELSTEIN asked Ms. Worley if she thought these juveniles, regardless of age were best served in all cases to be referred to the adult system or should some of them stay in the juvenile system. MS. WORLEY responded that she does not support an automatic waiver to adult court. She believed that some of the juveniles in the system are still kids. On a developmental level, their emotional level, intellectual level, etc., they are still kids. They need to be treated as kids, but there are some juveniles who should be waived. The department has this option. The majority of these juveniles would be better served by staying in the juvenile system for all the reasons she stated earlier. Number 111 CHAIRMAN PORTER referred to the historical perspective of this automatic referral concept. The concern was perceptually or not, that misdemeanor juvenile offenders were not getting serious sanctions as quickly as they should have and this waiver was a way to do this. He understood the department treated felony crimes for juveniles more severely than misdemeanors, but in reading the attached fiscal note, if this is to take place the department would need more resources. He questioned whether or not the department could do this with limited funds. MS. WORLEY stated that the Chairman was correct. Without resources the ability to follow through in a quick and decisive manner would be compromised. The department has already extended it's staff as thinly as possible, particularly in juvenile proceedings. First, a lot will depend on the child being charged whether or not they understand the gravity of being waived directly to adult court, this being part of the intent of the pending legislation. Juveniles are not as frightened of the system as were those in the past. There is also not a lot of parental involvement in these kid's lives. MS. WORLEY added that without additional resources, the department will certainly not be able to act on these cases as quickly as they would like. They would prioritize these felonies along with the other cases as they currently do. The more serious offenses would be dealt with first. Number 1425 REPRESENTATIVE GREEN asked if this type of follow through would be applied to those juvenile's with the high rate of recidivism. MS. WORLEY said this would depend upon what their previous involvement with the system had been. REPRESENTATIVE GREEN asked if this population had already gone through the types of monitoring which Ms. Worley outlined, such as parent involvement, etc. Would these types of crimes have this same benefit. MS. WORLEY said again this would depend upon the crime of their prior referral. It depends on the level of their offense. Number 1573 ANN CARPENETI, Assistant Attorney General, Department of Law, testified in support of HB 75. The department supports the CS of HB 75, more specifically increasing the offense of car theft from a misdemeanor to a felony, as well as, increasing the fine and jail time. The changes in the vehicle theft in the first and second degree have been improved. The department does not agree with the automatic waiver of children to adult court as misdemeanors. Ms. Carpeneti cited that there is no probation supervision for misdemeanants in the state of Alaska. Children would go to court once, be sentenced and that would be it. MS. CARPENETI continued by stating that automatically waiving vehicle theft to district court was an anomaly in the treatment of juveniles who steal things. Juveniles who steal cars would be treated differently than juveniles who steal other property. The problem with the waiver is that it waives children of all ages. If a juvenile was sent to district court automatically he or she would have the right to a jury trial. Jury trials are composed of adults and Ms. Carpeneti added it would be interesting to see a young child tried by a panel of adults. She closed by stating that there's a question of resources as well. Number 1748 REPRESENTATIVE BUNDE asked what dollar amounts apply at the different levels of theft for an adult. MS. CARPENETI responded that $500 was the difference between a felony and a misdemeanor. REPRESENTATIVE FINKELSTEIN asked if the department had a problem with the differentiation between the vehicle types cited in the legislation. MS. CARPENETI said that no they didn't and in fact the governor's bill for vehicle theft provided that first offense of an all terrain vehicle or a snow machine, which resulted in damage to the vehicle of $500 or more, would be a felony. This CS makes offenses that would be felonies instead, misdemeanors, by waiving automatically juveniles to district court. Actually, first offense automobile theft and causing damage of $500 or more is a felony now and would be dealt in district court as a misdemeanor for a juvenile. Number 1895 REPRESENTATIVE FINKELSTEIN noted that this is all very confusing. He added that this testimony was helpful since it's hard to realize the different categories of offenses in existing law. Number 1940 CHAIRMAN PORTER closed the public hearing. Chairman Porter said he had spoken to the sponsor and he, nor Chairman Portman were married to the CS which was just adopted. He said he was persuaded to a degree that DFYS will treat those juveniles, charged as juveniles, with the elements of a felony to a greater degree than in the past. REPRESENTATIVE BUNDE encouraged Chairman Porter to find this CS more attractive. In response to the argument that district court was overloaded, he note how the juvenile system is incredibly overloaded too. He added that these young people think juvenile court is a joke. To use the old vernacular, "they want to make their bones, they want to hit the big time soon, let's not slow them down." He ended by stating that kids live up to the expectations we place on them. Number 2198 REPRESENTATIVE DAVIS hoped that the committee would consider not supporting this bill in it's entirety. She was concerned about how young some of these juveniles are. She also raised the question of where these juveniles would be housed. Once they go through the court system, she noted that they'd be obligated to put these juveniles in adult jails. By putting juveniles in adult jails, they're exposed to an adult population which would initiate them into a more serious crime world. CHAIRMAN PORTER said that those juveniles who are waived into adult court do serve time in adult facilities, but those who for example accrue a second DWI, they would serve their time in MacLaughlin. Number 2415 REPRESENTATIVE BUNDE pointed out that MacLaughlin presently is overcrowded as well. TAPE 96-15, SIDE A Number 000 REPRESENTATIVE GREEN voiced his concerns about the large fiscal note attached to this CS. He asked why this couldn't be toughened up to require more restitution provisions to help offset the cost to the department. CHAIRMAN PORTER asked if this fiscal note was attached to the State Affairs CS version or the present Judiciary CS version. JERRY SHRINER, Special Assistant, Department of Corrections noted that this CS was attached to the State Affairs version. The major portion of the money in this fiscal note was related to the second time felony theft, which makes this a mandatory two year sentence. Number 211 CHAIRMAN PORTER pointed out that the State Affairs CS changed this. The fiscal note may need to be updated. The State Affairs CS left both first and second offense felonies at the (C) level. MR. SHRINER said it was his understanding that a second conviction as a (C) felony is a two year mandatory sentence. Chairman Porter then agreed that this was the case. Number 250 REPRESENTATIVE GREEN asked if these juvenile's permanent funds could be attached indefinitely, if they were unable to pay restitution. MR. SHRINER said that for the year which this person served their time, the department would recoup their respective permanent fund. REPRESENTATIVE GREEN noted that there was a definite disparity between the crime and how much a person is required to pay in restitution. CHAIRMAN PORTER pointed out that there's nothing to preclude a civil judgment in these types of case, but the defendant may not have the means to pay the amount of damages incurred. Number 400 REPRESENTATIVE FINKELSTEIN moved that the Judiciary CS be rescinded. He then brought up the issue of prosecutorial discretion and that the system has the right to let someone go completely, but they don't have the discretion to put the young offender in the more appropriate juvenile system with an automatic juvenile waiver. He thought that this prosecutorial discretion was gone. CHAIRMAN PORTER understood that if the adult prosecutor decided not to charge, for example, the six year old from stealing a car, it seemed to him that DFYS could deal with the case if it were referred to them from the standpoint of delinquency, as opposed to the crime of misdemeanor car theft. MS. WORLEY made a clarification about payment. Through DFYS they can order payment for housing of juveniles in their system. Number 535 REPRESENTATIVE FINKELSTEIN asked if there was any other area of law which provides for an automatic juvenile waivers for theft. Chairman Porter answered no. Representative Finkelstein said that his points were two in defense of his motion to rescind. One, the premeditated crime of stealing televisions doesn't allow for an automatic waiver. The second argument, is that after listening to testimony, there isn't anything inherently that says that the adult system serves better their purposes. CHAIRMAN PORTER said this issue was a close call for him, but he decided to support the motion to rescind the Judiciary CS. His personal experience with these issues is dated, he was impressed that law enforcement felt that juveniles shouldn't be automatically waived. Also, last year when they were discussing these issues, they didn't have this option that DFYS would monitor these felonious juveniles more closely. Number 877 REPRESENTATIVE VEZEY suggested that they maintain the automatic waiver, but leave an option in for the juvenile to prove that their worthy of rehabilitation. CHAIRMAN PORTER pointed out that this is the current state of the law in a waiver already. When the prosecution wants to ask for a waiver to adult court, it's not an automatic waiver. The burden of proof of worthiness is on the juvenile, but violent crimes are automatically waived. REPRESENTATIVE BUNDE withdrew his objection to waive the Judiciary CS version of HB 75. Number 1082 CHAIRMAN PORTER recognized the motion to rescind adopting the Judiciary CS. Hearing no objection it was so moved. The State Affairs CS was then before the committee. REPRESENTATIVE DAVIES made the motion to move the State Affairs CS for HB 75 from the Judiciary Committee. Hearing no objection it was so moved.
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