Legislature(2001 - 2002)
03/18/2002 01:10 PM House JUD
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SB 169 - HATE CRIMES: AUTOMATIC WAIVER OF MINORS TAPE 02-32, SIDE A Number 0020 CHAIR ROKEBERG announced that the last order of business would be CS FOR SENATE BILL NO. 169(FIN), "An Act providing that the delinquency laws are inapplicable to minors who are at least 16 years of age and are accused of felony crimes against persons directed at victims because of the victims' race, sex, color, creed, physical or mental disability, ancestry, or national origin." Number 0072 SENATOR DAVE DONLEY, Alaska State Legislature, sponsor, said that SB 169 would amend existing statute in order to automatically waive juveniles over 16 years of age to adult court when charged with a violent felony against a person because of that person's race, sex, color, creed, physical or mental disability, ancestry, or national origin. He noted that the language being added to AS 47.12.030(a) [defining the foregoing attributes of victims] comes directly from AS 12.55.155(22), which is an aggravating factor when sentencing adults. He opined that because the juvenile [justice] system (JJS) is closed off from public accountability, waiving juveniles to adult court when they commit violent hate crimes is justified; by prosecuting these crimes out in the open, the deterrent effect will be enhanced and society in general will know that justice has been done. SENATOR DONLEY said he thinks it is certainly a higher level of "crime against society" when the motivation behind a violent crime is some sort of hate, based on the [statutory] definition. He noted that there have been major efforts over the last few years to toughen the criminal justice laws as they pertain to juveniles, as well as proposals to utilize a dual sentencing scheme as an alternative to mandatory waiver to adult court. But unfortunately, to date, the dual sentencing law has never been utilized; the one time it might have been used, "it was turned down," and thus it is not a viable option, he opined. "I think when these kind of crimes do occur, the better public policy is to put them out before the public so the public knows ... that they've occurred and knows what the final resolution of the criminal justice process involving those crimes is," he stated. SENATOR DONLEY mentioned that another point of concern he'd heard regarding SB 169 is that when minors are waived to adult court, they end up incarcerated in adult facilities. He pointed out, however, that it is against both federal and state law to incarcerate a juvenile in an adult facility without some sort of segregation. He acknowledged that although his sponsor statement mentions that there has never been an incident of a juvenile being abused while in an adult facility, he did hear of one possible incident that might have occurred last year, but he has not been able to confirm that information. Number 0337 SENATOR DONLEY reiterated that hate crimes rise to a higher level of significance and concern to society, and that SB 169 would assure society that justice would be done with regard to someone over 16 years of age who commits a violent hate crime. He remarked that he is very sensitive to the concerns of folks who are opposed to "thought crime" legislation; however, because violent hate crimes pose a great threat to society, he thinks that [SB 169] creates a better public policy. CHAIR ROKEBERG asked for a description of the dual sentencing law, which was passed in 1998. SENATOR DONLEY explained: The dual sentencing proposal simply said that for certain types of juveniles, you could sentence them both as adults and as juveniles for certain types of crimes, and that if they failed in the juvenile system, then they would go to the adult system and ... be subject to punishment under the adult system. CHAIR ROKEBERG asked: "So how is that applicable, the way your bill is drafted now?" SENATOR DONLEY replied that it was only applicable in the sense that during the Senate hearings on this legislation, dual sentencing was offered as an alternative: the administration preferred dual sentencing to automatic waiver. He opined, however, that the dual sentencing law simply hasn't worked during the two years since its enactment. In response to a question, he said that he did not know why that provision has never been utilized; he was simply told that it had not been utilized. CHAIR ROKEBERG noted that in the "paintball incident" that occurred last year in Anchorage, one of the individuals was tried as an adult and the other two as juveniles. He asked whether that incident provided the impetus for SB 169. Number 0589 SENATOR DONLEY replied that although that incident certainly raised the public consciousness regarding hate crimes, SB 169 neither was created in response to that incident nor is being offered as a solution to the problem. He noted that in that incident, there was the question of whether that crime rose to the level of a felony, and since SB 169 would only apply in felony situations, it would not have affected the two juveniles involved had they only been charged with a misdemeanor. He opined that SB 169 stands on its own merit; if someone who is at least 16 years of age is indeed charged with a felony hate crime, it is perfectly appropriate to extend the existing automatic waiver to those crimes. In response to a question, he mentioned that in members' packets is a handout detailing the differences between class C felony and class A misdemeanor crimes against a person. REPRESENTATIVE BERKOWITZ remarked that the list in SB 169 that pertains to victims' attributes does not include sexual orientation. He asked why that was left out. SENATOR DONLEY reiterated that the list in SB 169 comes directly from and is identical to AS 12.55.155(22), the existing aggravator for adult sentencing. REPRESENTATIVE BERKOWITZ asked: "Do you think that this would be strengthened by adding sexual orientation?" SENATOR DONLEY replied: "I don't have a strong opinion on it other than that I believe that it's absolutely consistent with existing law; it's the only other place in law that I found in the sentencing laws where this kind of ... criteria was adopted. And [it] seemed appropriate for this measure also." REPRESENTATIVE BERKOWITZ asked: "If we were to add sexual orientation here, would you think it'd be appropriate to add it in the aggravator section as well?" SENATOR DONLEY remarked that doing so would require a title change. REPRESENTATIVE BERKOWITZ noted that that was not impossible. SENATOR DONLEY acknowledged that it would not be impossible to change the title, but argued that he wouldn't support it because there is a strong philosophical opinion [against adding sexual orientation to the list] and because he thinks that SB 169 has a much better chance of success if the language stays the way it is, consistent with existing law. Number 0819 REPRESENTATIVE JAMES asked whether the term "creed" includes religion. SENATOR DONLEY said that because he has not performed an exhaustive search to determine whether "creed" is statutorily defined and, if so, how it is defined, he could only hazard a guess as to its meaning. REPRESENTATIVE MEYER asked whether currently, the "hate aggravator" could be applied to a juvenile. SENATOR DONLEY explained that first it would be up to the prosecutor to decide whether to "ask for that as an aggravator," and then it would be up to the judge to decide whether to "assess it as an aggravator." REPRESENTATIVE MEYER remarked that SB 169 has a zero fiscal note. He asked whether this means that it would cost the same to incarcerate a juvenile in an adult facility as it would in a juvenile facility. SENATOR DONLEY clarified that the [Department of Corrections (DOC)] submitted an indeterminate fiscal note because there is no way of knowing how many cases SB 169 might apply to. CHAIR ROKEBERG opined that it would probably be a rare occurrence. In addition, after reading from an unspecified source, he noted that "creed" is defined as: "a [formal] statement of religious belief - confession of faith." REPRESENTATIVE KOOKESH said that although he appreciates the intent of the legislation, it seems as though SB 169 doesn't really do anything to change the statutes with regard to "crimes related to bias or hate." He asked Senator Donley what he thinks SB 169 accomplishes. Number 1014 SENATOR DONLEY, in response, reiterated some of his earlier comments regarding how detrimental hate crimes are to society and how minors are currently treated in the JJS. He opined that automatically waiving minors 16 years of age and older to adult court for committing violent hate crimes is a significant change to the statutes and would be good public policy on multiple levels. REPRESENTATIVE KOOKESH asked what was being done with regard to how adults who commit violent hate crimes are treated. After acknowledging that SB 169 is not intended to be a comprehensive "hate crimes bill," he said that there are still areas that need to be addressed, and asked Senator Donley for his assurance that he will assist in those efforts. He noted, for example, that Representative Berkowitz raised the issue of sexual orientation, and said that that is a segment of the population that still needs to be protected. He asked: "How do we intend to do that? Or do we?" SENATOR DONLEY replied that he could not speak for either the entire Senate or the entire House, but thinks that SB 169 is a good, stand-alone change in existing law, that it makes good public-policy sense, and that it is consistent with existing laws. He said that he would treat other proposals on the basis of their merits, as they are brought forth. REPRESENTATIVE BERKOWITZ asked Senator Donley to estimate how many cases SB 169 might apply to on an annual basis. SENATOR DONLEY offered that one case is too many and he hopes that there won't be any; however, as illustrated by the DOC fiscal note, the number of cases is not something that can be determined at this time. He noted that if the provisions of SB 169 are used even once, it will have a significant effect on society, particularly in small communities. Number 1205 REPRESENTATIVE COGHILL opined that the felony behavior that would bring a minor into adult court would have to be "more significant than is written here." He remarked that youths involved in the JJS are more apt to be nurtured than are individuals involved in the adult correctional system. He said he is wondering whether waiving juveniles into the adult system would simply be "creating a felony before we really get there" and thus creating more problems down the road. He noted that because "every one of us" is subject to some form of hate crime, according to the list in SB 169, he did not know that anybody needed special protection. SENATOR DONLEY noted that "the cutoff" for a class C felony is assault in the third degree, which is when a person "(1) recklessly ... (B) causes physical injury to another person by means of a dangerous instrument. He also noted that there is [extensive] case law defining "dangerous instrument". When a person intends to place another person in fear of death or serious physical injury by using a dangerous instrument, he remarked, it becomes a pretty significant crime. He opined that society should take such behavior seriously, and that SB 169 constitutes a "reasonable public policy call." REPRESENTATIVE COGHILL remarked, however, that "we're taking a tool away from the judge, [in] this particular case, because we're making it a mandatory [waiver to adult court]." He indicated that he is not sure that he "can go that way just yet." REPRESENTATIVE MEYER asked whether the waiver to adult court could be optional rather than mandatory. He offered that there are some 16-year-olds who are a danger to society; with regard to hate crimes, however, the problem may not stem so much from the kids but rather from their parents. He expressed the concern that if someone is automatically waived to [adult court and thus to] an adult facility, there won't be much hope for his/her rehabilitation. SENATOR DONLEY offered that there is not a mandatory minimum sentence for a class C felony; therefore, incarceration in an adult facility would not be mandatory. Number 1482 ROBERT BUTTCANE, Legislative & Administrative Liaison, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), said that Alaska should not, under any conditions, abide acts of hate. Hate must be confronted and corrected at every level and at every opportunity. He continued: I understand that there is a special need to look at hate crimes separate from regular crimes, because when a person acts against another person on the basis of some hate category, not only is the victim impacted by that, but the group to which the victim belongs is also impacted by that act. So I think it is proper that this body does discuss these issues. On behalf of the Department of Health & Social Services, I want to be on record, however, in opposition to Senate Bill 169. We see this bill as ineffective, with the potential for significant detrimental impact to the welfare of the public good, for four reasons. One, it is incomplete in terms of its inclusion of bias categories. Two, it includes crimes that do not rise to the level of this type of punishment or response. Three, the current waiver laws on the books now are sufficient to address the most egregious acts of juveniles by waiving them into the adult system. And four, there are a multitude of better options available to respond to crimes of hate and bias than what is proposed in [SB 169]. MR. BUTTCANE elaborated: Number one, any bias crime that does not include the categories of sexual orientation and economic disadvantage is simply incomplete. Whatever you may feel about the governor's tolerance commission of this last year, over and over and over that group heard from people throughout this state who were living on the street, who are impoverished, who say that they have been subjected to the acts of other people, because of their poverty; not to include economic disadvantage is [an] error. Aside from racial issues, in our high schools the second most common biasing category a student will express against another student is either their actual or perceived sexual orientation. The state does not include these items in the aggravating factors under the sentencing statute of Title 12, nor do we give our [State Commission for Human Rights] authority over sexual orientation cases. We have hidden ourselves from a problem that is present in our schools and in our communities. To exclude these [categories] perpetuates a deficiency in the current statute, and while this bill would be consistent with current statute, it is incomplete nonetheless. Number 1646 Number two, this bill extends automatic juvenile waiver into adult court for crimes that do not warrant this extreme response. It does include [class] B and C felony crimes against persons. When you look in the sentencing statutes of Title 12, a [class] B felony can receive imprisonment up to ten years. That's the maximum. When you look at an assault in the third degree, that can be up to five years' [imprisonment]. Now, admittedly, for a first-time [offense], a 16- year-old appearing in front of an adult sentencing judge for one of these offenses is not at all likely to get the maximum imprisonment sentence; I grant that. But when you look [at] a [class] B felony as including the types of crimes where you take property from another by force - not involving a weapon, but taking property from another by force - what do you do with those 16- and 17-year-olds that we get every Halloween, who have bullied sacks of candy away from kids? They utter some type of racial or ethnic slur in that act, and now they will be subject to a [class] B felony - robbery in the second degree - in the adult court. It is likely, at a [class] B felony level, they would get some prison time to serve. MR. BUTTCANE: Assault [in the third degree involving a] dangerous instrument - I have personally processed case referrals from law enforcement where kids have gotten angry at parents, they pick up broom handles and toilet plungers, they waive them at the parents, and they say, "I am going to kill you"; and in that moment, they mean it. They have committed an assault in the third degree, have been arrested by law enforcement and charged with that offense. Should [they], in those circumstances, utter some type of racial or some type of bias slur, that would subject them to the penalties of the adult system. Now, are the penalties of the adult system proper? If you look at the reality that the most someone could get for waiving a toilet plunger at someone, with a racial slur, would be five years in jail - if you were 16 years old, you got five years - do the math: they're out at 21. There is an article that was submitted by the Coalition for Juvenile Justice in March of 2001 that characterizes national statistics that state two- thirds of the children sentenced to adult prisons in this country are released before they are 21, and more than 90 percent are released before age 30. Upon release, these people re-offend earlier and more seriously than those who were processed in the juvenile system. That's the research that is supported over and over again. Number 1760 Waiver of juveniles into the adult system is significantly a detrimental public policy. It is one that will cost us. If you can imagine a 16-year-old going into jail for five years, should it ever happen: he's graduated from crime school, he's still young, he's still virile, [and] he is now more hateful, more angry, and more predatory on our communities and our safety and our public. This is bad public policy. MR. BUTTCANE continued: Number three, waiver for the most egregious offenses is already in existence. When a child 16 and 17 years of age commits an act of homicide - an unclassified or a class A felony - against anyone in this state, they are treated as an adult offender. For those crimes, they are typically receiving sentences of 20, 30, 50, 80 years; they will not be released immediately on the community again, so they don't pose that risk of being released more quickly. In 1995, the governor convened a group of citizens, business people, care providers, legislators, and others - law enforcement people - from around the state, who met through a series of meetings in what was called the Governor's Conference on Youth and Justice. One of the 100-plus recommendations out of that body that crossed both the political boundaries [and] social boundaries was that there would be no expansion of Alaska's automatic waiver. It was argued on the Senate floor, ... when this bill was passed out of the Senate, that a juvenile, by law, cannot serve time in an adult prison. That is true: juveniles may not, by law - both state and federal law - be placed in adult prisons. Alaska's automatic waiver law, however, removes the category of minority from 16- and 17-year-olds who are charged with these crimes. If you go to the bill and you go to page 1, lines 11, 12, and 13, [there] is the sentence: "The minor shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as an adult." That is the current law of our waiver statute. Someone 16 and 17 years old, simply charged with one of these crimes after having injected an element of bias or hate, would be subject to all of the response and sanction of the adult system - bad public policy. Number 1913 Last, there are options. There [are] better options that have been proffered around the country as this nation has tackled the issue of hate. The Sentencing Project out of Washington, D.C.; the American Youth Policy Forum; the Community Relations [Service] section of the U.S. Department of Justice; the Office of Juvenile Justice and Delinquency Prevention; the Anti-Defamation League; indeed, even the Alaska [Federation] of Natives have put forward proposals that are considerably more progressive and responsive, to confront and address hate crime behaviors, than what [SB 169] does. The options that are proffered as best-practice responses to hate crimes focus on families. So, not only are we addressing the behaviors of individual youth, but we include interventions that involve parents. A response to hate crimes should always include some kind of diversity tolerance training for the juvenile and the parent. This bill does not do that. It is also recommended that mediation and conflict resolution be used as preventative and responsive actions to hate crimes, to heal that separateness, that judgment, that bias that we hold against ourselves and one another. Howard Zhare (ph), a national authority on restorative justice, states that the most effective sanction that one can impose against an offender is where the offender takes personal responsibility for the repair of the harm to their victim. In the juvenile system, when we receive a crime of bias, that is our expectation, that the young offender take personal responsibility and work to repair the harm that was caused to their victim, the victim's group, and the victim's community. Number 1998 MR. BUTTCANE concluded: Putting someone in the adult penal system, in a prison in Lemon Creek or Spring Creek, is a limited response. It serves no public good. It isolates an individual. It presupposes that a 16-year-old will self-correct in one of the most segregated, isolated, crime-infested areas - our prisons - that we have. It's the wrong response. It is not individual; the juvenile system provides an individual response. It does not include the parent; the juvenile system does. It does not make amends to the community; it simply gives the community some retribution for that act. It doesn't make an amends to the victim, in terms of any kind of understanding of the group; it doesn't develop any levels of tolerance or understanding or appreciation. For these reasons, the [Department of Health & Social Services] is opposed to the proposal before you this day. REPRESENTATIVE MEYER asked what the rate of recidivism is at a juvenile detention center like the McLaughlin Youth Center. MR. BUTTCANE said that this year's DHSS "missions and measures" [statement] shows a 55-percent "non-reoffense rate" following release from a juvenile institution. He added that juveniles are followed for two years after their release, even into the adult system. He mentioned that the McLaughlin Youth Center has had close to a 60-percent success rate - or non-reoffense rate. He confirmed that the national study of which he spoke earlier indicates that when those who go into the adult system at the age of 16 are released, they are more likely to re-offend and the offenses tend to be more serious. He also noted that members' packets contain a handout highlighting some of the national statistics regarding juvenile waivers. REPRESENTATIVE MEYER asked whether, in rural Alaska, it is always possible to segregate juvenile offenders from adult offenders. MR. BUTTCANE said no; although every effort is made keep them separate, it is not always possible in small, rural jails. "It is not unheard of that an adult offender will be released from a jail holding facility so that a juvenile can be held until such time that they could be transported to a juvenile facility for processing," he added. Number 2153 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference, noting that the paintball incident from last year focused a lot of attention on the criminal justice system as it pertained to hate crimes and the treatment of juveniles. It was a very disturbing crime, she remarked, and it generated a close examination, which was a good and productive thing. One of the results of this exam was the formation of the governor's tolerance commission, which held extensive meetings out of which a report and recommendations ensued. MS. WILSON said that in light of that, the PDA strongly opposes SB 169 as a way to address "these" concerns. She remarked that notwithstanding a misperception that the juvenile [justice] system in Alaska has failed, it is not a failure; rather, it is "alive and well and doing wonderful in terms of addressing offenses committed by juveniles." It is much better to keep youthful offenders in the juvenile [justice] system than to put them into the adult system, she opined, remarking that it was [nearly] a hundred years ago, in 1909, that the juvenile [justice] system was started because of problems resulting from putting kids in adult jails. MS. WILSON indicated that children in adult jails are preyed upon, are far more likely to be assaulted, and have a higher rate of suicide. And - notwithstanding any perception to the contrary - children who are automatically waived under the provision being amended by SB 169 do not get segregated from adults. These children are sharing cells with adults. Children are only segregated when they are in the juvenile [justice] system. If a child is charged under AS 47.12.030(a), he/she will immediately be arrested and put in with the adult population, and, upon conviction, will also serve his/her sentence there. She pointed out that when children are incarcerated with adults, there is the additional problem of criminal adults becoming the moral mentors of impressionable children; thus the higher rate of recidivism should come as no surprise. Number 2253 MS. WILSON opined that kids who commit hate crimes are probably the best suited for the treatment available in the juvenile justice system. In the juvenile system, the whole family can become involved - and is sometimes even required to become involved - in the solution and disposition of a case. This is certainly not the case in the adult system, she remarked. The situation in Alaska doesn't need to be fixed, she opined, because in serious cases, the department can protect the public and can have these minors institutionalized up to their 19th birthday. The department can work with the minor and his/her family for a much longer period of time. She pointed out that the department currently has the ability to seek a waiver in cases where the minor is not amenable to treatment, or can elect to waive in serious situations. Notwithstanding these possibilities, in the majority of situations it is much better to keep juveniles in the [juvenile] system. The automatic waivers in Title 47.12 are narrowly prescribed, she noted, and should not be expanded. MS. WILSON suggested that when considering the expansion of the criteria for automatic waiver, the committee should also think ahead to what is going to happen to the juvenile when he/she gets out of jail. That person would then be a convicted felon and, as such, his/her future will be very restricted and uncertain. It could be very hard for these offenders to overcome the moniker of being convicted felons; they could have difficulty getting jobs, serving in the military, or getting educations. And although many juveniles have done horrible, stupid things and need to be held accountable, this can be accomplished in the juvenile [justice] system; they do not need to automatically go to the adult system. In conclusion, Ms. Wilson suggested that the committee give consideration to other pending legislation as alternatives to SB 169. REPRESENTATIVE JAMES, after remarking that she has had experience with reform schools, commented that because of the differences between children ages 14-15 and children ages 16-17, the younger children in that environment would be better off if they are not exposed to the 16- and 17-year-olds. Number 2420 CANDACE BROWER, Program Coordinator/Legislative Liaison, Office of the Commissioner - Juneau, Department of Corrections (DOC), concurred with Mr. Buttcane and Ms. Wilson that when juveniles are waived into the adult system, they are integrated into the adult population. She elaborated: When someone is arrested as a waived juvenile, they go to an adult facility. We make every effort that we can to ... protect the safety of the juveniles that come before us, but one of the things that we do, that we don't do for other offenders, is we evaluate each and every juvenile for a period of time and segregation to try [to] determine whether or not they're safe to go into ... general population.... If it's determined that they're not safe to go in, then they have to remain segregated for the duration of their ... incarceration or until they go to another facility and are deemed able to go into [general] population. That creates quite a bit of work and hardship for our staff as well as for the juveniles that are waived. MS. BROWER remarked that going into adult prison is a very serious thing, and contended that if a juvenile is waived into an adult facility because of a hate crime, he/she will only emerge more hateful as a result of being integrated into the adult population. TAPE 02-32, SIDE B Number 2489 MS. BROWER mentioned that [there have been] instances of adult offenders' assaulting juvenile offenders, and recounted that in the mid-80s, the state had to pay a $1-million lawsuit for just such an incident, which occurred in Ketchikan. Therefore, although the DOC tries very hard to prevent such assaults, they do occur, and reducing the level of offense will only increase the number of children - and, in particular, more vulnerable children - who get waived into the adult system, she remarked. "Sixteen-year-old kids are kids, regardless of how mature they might want to be; they're still kids and they are at risk," she pointed out, and they will put an additional burden on the DOC as it strives to protect them from the adult population. In conclusion, she, too, suggested that the committee should consider other pending legislation as it strives to deal with the issue of hate crimes. CHAIR ROKEBERG announced that SB 169 would be held over.
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