Legislature(1997 - 1998)
05/06/1997 02:24 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 16 - JUVENILE DELINQUENCY PROCEDURES CHAIRMAN GREEN announced the next item of business would be 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." Number 1384 BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly, presented the bill on behalf of the sponsor. He specified that he was addressing version 0-LS0121\Q, a proposed committee substitute containing a few small changes from CSHB 16(HES). MR. CAMPBELL said HB 16 has a number of tools resulting largely from recommendations of the Governor's conference on juvenile crime. It brings a number of issues to the statutes that authorize municipalities to bring minors before civil court. He stated, "It brings in additional assistance for a witness, ... additional assistance for victims. Its largest single provision is dual sentencing of serious juvenile offenders. As we bring in and get communities more involved in the entire juvenile justice process, we clean up and offer the courts some additional community service opportunities. We increase and improve communication between the Health and Social Services and law enforcement. We clarify some of the roles between the Department of Health and Social Services and law enforcement agencies, and we increase communication between the Department of Health and Social Services and public officials." MR. CAMPBELL said probably the single most complex part of the bill is the dual sentencing provision. Dual sentencing allows the district attorney to go first before a grand jury; if he obtains a grand jury indictment, he goes before a judge and may ask for a two-part sentence: a juvenile sentence and an adult sentence. The latter must include some unsuspended jail time. It then behooves the minor to comply with the juvenile sentence, going through juvenile treatment programs. And if the minor fails in that regard, particularly if he or she reoffends, the adult sentence kicks in and the minor is remanded to adult corrections. The advantage is that much of the onus is on the minor. REPRESENTATIVE CROFT asked, "Did you say `unsuspended,' or can the adult sentence be completely suspended as an enforcement tool for the juvenile part? That is, do you have to send them to adult corrections as part of it?" Number 1554 MR. CAMPBELL referred to page 12, lines 10 through 12. He said in order for this to work, the adult sentence "must include some period of imprisonment that is not suspended by the court." REPRESENTATIVE CROFT said he understood the "hammer," the threat of this and why it would be a good idea. However, he wanted to know why it is a good idea to send a minor who they hope will be rehabilitated to adult corrections. REPRESENTATIVE PORTER said there has to be a portion of the adult sentence that is not instituted and that has jail time. "He or she is sentenced under the juvenile sentence with this whole adult sentence over his head, which includes some mandatory minimum jail time," he stated. REPRESENTATIVE CROFT said, "So, there must be some suspended portion of the adult, not unsuspended." MR. CAMPBELL responded, "Yes, ... I think there's merely confusion on how we're getting to the same conclusion. The entire adult sentence is ... held in abeyance, and none of that sentence goes into effect unless the minor triggers it with further behavior." REPRESENTATIVE BUNDE commented that there has to be a portion that is unsuspended; there still has to be some jail time in the adult sentence. He then made a motion to adopt as a work draft version 0-LS0121\Q, Chenoweth, 5/1/97. CHAIRMAN GREEN asked whether there was an objection. There being none, that version was before the committee. MR. CAMPBELL advised members that he had a chart explaining dual sentencing. The district attorney goes before the grand jury. If the grand jury reads out a true bill, it goes to court. The court orders juvenile treatment, and it orders the adult jail time. But the adult jail time does not kick in unless the minor has a new offense, for which specific offenses apply, or unless the minor fails to comply with specific terms of that juvenile treatment, "at which time they go back to court with another petition, and the court then can order the ... adult jail time." REPRESENTATIVE CROFT asked, "Can or must?" MARGOT KNUTH replied, "It's a `can.'" Number 1783 BARBARA BRINK, Director, Public Defender Agency, Department of Administration, testified again via teleconference from Anchorage. She pointed out that this bill is complicated. She stated, "To address the first question that's come up, I agree with I believe it was Representative Croft that was concerned that if a child is referred to the adult system, they then must serve jail time. That is correct. As I read page 12, line 12, the sentence pronounced in the adult court, whether or not initially imposed, must include some period of imprisonment that's not suspended by the court. This is illustrative of a lot of the problems I'm concerned about with this bill, is that you are going to be treating 13-, 14- and 15-year-olds much more harshly than you are treating adults. An adult who is referred to adult jail or court on ... some of those types of felonies may not, in fact, have to do jail time. So, I'm very concerned about page 12, line 12, and think that we should reword that to leave the ultimate discretion to the judge." MS. BRINK indicated her general concern about this bill is the assumption that treating children as adults is a more effective system. She stated, "There are (indisc.--coughing) today that exist, that show that treating kids more like adults is effective. Other states have been trying this dual jurisdiction, but nobody has been doing it long enough so that we have any information that it's any more successful. In fact, many studies have shown that McLaughlin [Youth Center] has a higher success rate than many other states in dealing with (indisc.) juvenile offenders." MS. BRINK said she had just read a bulletin by the Department of Justice, which concludes that juvenile arrests for violent crimes declined in 1995 for the first time in nearly a decade. The bulletin goes on to say, most encouraging, that this decline was greatest among younger juveniles. This promising turnabout should temper recent forecasts of an epidemic of violent juvenile crime. Ms. Brink stated, "So, my concern has to do with treating 13-, 14,- and 15-year olds like grownups when they don't have the ability or adjustment to function like grownups." MS. BRINK said there are other problems with the bill. It "expands the elimination of juvenile confidentiality." It also expands the reasons for which a police officer can arrest a juvenile, so that they can be arrested for things for which adults can't be arrested. She stated, "And there are innumerable other issues within the juvenile jurisdiction, including the broad language on how juveniles can get to adult court. And I would really like to see some work done on this bill to tighten that up, to make it not so easy to send a kid to `the big house.' Thank you." CHAIRMAN GREEN requested that Ms. Brink submit her comments in writing, to which she agreed. Number 1988 JODY OLMSTEAD testified again via teleconference from Anchorage. She said this bill brings to mind a juvenile from Fairbanks who is currently in the system; the juvenile was a foster-care child who was involved in a robbery involving a gun. The people who had been with him, who had enticed him to do this, had robbed a gun from their own family, and they were adults. The boy sat in jail at the Fairbanks youth facility for almost three years without being sentenced or rehabilitation. He then was sent over to the "FCC." They realized they had "not quite made the confidentiality of juvenile records right for him to be over there; so, they broke confidentiality and had to ship him back over to FYF." MS. OLMSTEAD said they then let this juvenile out of jail, never having sentenced him, "never having done anything." Ms. Olmstead said he'd worked with Hospice for community service and was doing a wonderful job with an elderly person. In addition, he was working at Denny's, where they gave him high recommendations. At that point, "they contacted him, took him to court and gave him three years, after he had done all of these different things and was really happy on the outside." MS. OLMSTEAD said they then decided to take him to a facility by Seward, perhaps Willow Wood (ph). "And on the way there, they dropped him at Spring Creek, which is not a place for juveniles," she said. "And there he sits today." She said she hopes he doesn't have any problems with prison rape, and she indicated the person discussed in the Fairbanks newspaper is this particular child. She indicated he's angry, he's in with hard-core criminals, and his life is ruined. She stated, "Yes, he made a choice, and he's all for doing his time. But you're putting some kids in some pretty stiff situations, and as the former speaker said, you're doing more to juveniles than you are to the adults. And we want our kids ... not to be criminals. But for God's sakes, they can be accountable with community service and different things that can work. Thanks." CHAIRMAN GREEN said that is a pretty gruesome picture. Number 2200 REPRESENTATIVE JAMES said she appreciated having that story brought to their attention. She suggested considering it as a failed system, not necessarily the failed law but the operation of the law. Certainly, a lot of errors were made that need to be rectified. Number 2231 BRANT McGEE, Public Advocate, Office of Public Advocacy (OPA), Department of Administration, testified via teleconference from Anchorage, specifying that he is the director for the OPA. He stated, "Barb Brink has informed me that their concerns regarding this bill are encapsulated in the fiscal note that should have been submitted to it, which should be available to the committee at this time. My own fiscal note is attached, as well, and contains a summary of some of the concerns. To pick up on Ms. Brink's testimony, I would note that on page 13, in the middle of the page, starting at line 14, it lists ... that conduct by juveniles, who could be as young as 13 years old, I would remind the committee, ... which would automatically trigger the imposition of an adult jail sentence. That includes failing to pay restitution or failure to engage in or complete their rehab program ... required ... by a facility or a juvenile probation officer. In other words, you can send a 13-year-old to jail because he doesn't comply with the demand of a juvenile probation officer, instead of, as it is in adult court, instead of complying with a court order." Number 2342 MR. McGEE said he was, frankly, stunned that they were discussing a bill under which an adult jail term could be imposed upon a 13- year-old; he believes there is no question that would happen under this bill. He said part of his problem from the fiscal standpoint is that he has been unable to locate in the bill any encouragement whatsoever for a kid in this situation, who is charged with a serious offense that would trigger dual sentencing, to plead guilty, to own up, and to take personal responsibility for a crime for which he could ultimately be sent to an adult institution. For that reason, Mr. McGee believes there will be a significant cost in the mere processing of these cases. TAPE 97-79, SIDE A Number 0006 MR. CAMPBELL said [begins mid-speech], "... option into a juvenile justice system. Currently, we waive kids right straight to adult ... court, right straight to adult jail. This gives a system where we are able to give the prosecutor the option of attaining a juvenile treatment sentence for those more serious crimes. ... As I understand it, they do not actually have to go to the full waiver-into-adult-court process. ... So, we may be having fewer kids in adult corrections with this bill." Number 0051 REPRESENTATIVE PORTER explained that there are two kinds of waivers. First is the automatic waiver of juveniles committing very serious crimes; those juveniles are 16 and 17 years old. "Then there is the ability, enhanced by that same bill, to waive other juveniles into adult court if they present the right facts to the court and that court agrees that they may be so-waived," he stated. "This provides an alternative to that. In the cases where the case is serious enough but the minor is not quite old enough or the offense is not quite `categorizable' into the unclassified or class A - against a person - category, that instead of going through the petition process of seeking a waiver, they can seek this dual function and, in some cases, save money, as opposed to -- and, I think, provide one heck of a deterrent (indisc.)." Number 0146 REPRESENTATIVE BUNDE reminded members they weren't talking about some 13-year-old paper boy but a 13-year-old who had been charged with a serious crime. The first time someone's charged isn't the first time they've committed a crime. Just because it's the first time they've been caught and they are 13 years old, it doesn't make them sacred to him. He stated, "Kids aren't stupid. They see the hammer coming, and juvenile crime is going down because people are getting tougher. And I see no reason to back off at this time. We want to encourage the decrease in juvenile crime, not say, `King's X.' So, with that, I would like to move the bill." CHAIRMAN GREEN noted that Margot Knuth was signed up to testify. Number 0218 MARGOT KNUTH from the Department of Law came forward to testify again. She noted that when it comes to 13-, 14- and 15-year-olds, they are only talking about unclassified felonies and class A felonies. She commented, "I mean, this is even above the label of `serious crimes.' These are the very most serious. And it is discretionary with the prosecutor whether to file for dual sentencing at the outset or not. For 15- and 16-year-olds, they could qualify for dual sentencing if they are on repeat felony offenses. Both of these populations, by their conduct, are saying they are at risk of becoming chronic serious offenders and we want to, if you will, be in their face more than under our traditional system." MS. KNUTH continued, "If, however, they comply with the conditions that are imposed, they have the opportunity of staying in the juvenile system, getting their record sealed, and coming back to the fold. But even if they do fail to comply, ... the adult sentence can only be imposed if a petition is filed seeking that. And you will always have prosecutorial discretion on whether to file a petition. There is no automatic imposition of the adult sentence. So, first, somebody has to believe it's serious enough to warrant filing the petition. And then next, ... it's within the court's discretion unless ... what brings the kid back is a subsequent felony offense that's a crime against a person or arson. Only in that very narrow circumstance is it mandatory, once a petition's filed and a finding's made that the new offense was committed, that the adult sentence would be imposed. Otherwise, the court has the discretion whether to keep going down the juvenile track." Ms. Knuth emphasized that the whole point is to try to put the responsibility on the juveniles' shoulders and to provide a deterrent. That is one part of the bill. MS. KNUTH advised members that the other part of the bill is enabling communities to step forward and respond to low-level offenders. "And there are civil penalties provisions, and there are provisions for Health and Social Services to work with nonprofit corporations and municipalities, and a variety of tools, short of creating a criminal record for the juvenile or putting them in detention," she stated. "Just about anything else under the sun is available: community work service, fine, restitution, letters of apology. And both of those extremes, one, the very small group of people that we need to really be on them and the much larger group of people that we need to help make sure there are some consequences for the low-level offenses -- so, that's what this bill does." Number 0408 CHAIRMAN GREEN said, "It sounds like actually both ends of that are probably pretty effective." Number 0432 REPRESENTATIVE ROKEBERG referred to the fiscal note, which says that based on the entry of just three juveniles per annum, it "creates about $115,000." MS. KNUTH said that sounds correct. REPRESENTATIVE ROKEBERG asked whether Ms. Knuth was involved in development of that fiscal note. MS. KNUTH indicated she'd been involved with the Department of Health and Social Services and the district attorneys' offices in figuring out "how many kids we actually expect ... to go through." REPRESENTATIVE ROKEBERG commented, "I suspect that this note has some statistics, because you have been tracking this, as I know, for the Governor's office and (indisc.)." MS. KNUTH affirmed that. REPRESENTATIVE ROKEBERG said, "So that, if you're looking at five years from now, we've got almost $600,000 a year because of what would be approximately 18 people entering the corrections system as a result, on the estimate, on three a year. Is that ....?" Number 0501 MS. KNUTH replied, "I hope that not all of those 18 are still going to be in the system five years from now. I hope that the ones that are going in this year are coming out before that five years elapses." REPRESENTATIVE ROKEBERG asked whether that was how she'd arrived at that number. MS. KNUTH said yes. Number 0525 REPRESENTATIVE BERKOWITZ stated, "I'd just point out that for these people, that amount would be offset by reduction to a contribution to the foundation formula." MS. KNUTH said, "Not to mention Johnson Service Center." REPRESENTATIVE CROFT referred to page 12, lines 11 through 12, and noted that there was concern about that and that it confused him. Number 0620 MS. KNUTH explained, "What's going on in (2) is simply the pronouncement of the sentence. It's not the imposition of a sentence. The concern was when you're pronouncing the sentence, that when it does come time to impose it, ... you will not be able to impose anything more than what you pronounced. So, if at the outset you pronounced an entirely suspended sentence, if you ever got to the circumstance where you wanted to impose the adult sentence, you wouldn't be able to do anything because you had suspended it all up-front, ... until you got to a petition-to- revoke-probation point. And so, this is to create the situation where [an] adult sentence could include jail time when it is imposed." Number 0680 REPRESENTATIVE JAMES made a motion to move HB 16, version 0- LS0121\Q, from committee with attached fiscal notes and individual recommendations. CHAIRMAN GREEN asked whether there was an objection. Hearing none, he announced that CSHB 16(JUD) was moved from the House Judiciary Standing Committee.
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