Legislature(1997 - 1998)

04/29/1997 01:05 PM House JUD

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

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