Legislature(1995 - 1996)
02/26/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
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SB 269 CT RECORDS PUBLIC FOR CERTAIN DELINQUENTS
Number 223
SENATOR JUDY SALO, sponsor of SB 269, gave the following summary of
the legislation. SB 269 removes some of the current protection for
juvenile names of perpetrators of crime. The existing protection
ensures a juvenile does not become a criminal by virtue of being so
labelled, however the nature of juvenile crime in the past decade
has changed, and more juveniles are committing felonies. In
drafting SB 269, a balance between the rights and protection of
juvenile offenders and victims of juvenile crime was considered.
SB 269 would allow records to be opened if the offender committed
a felony and is over 13 years of age. Because of the escalating
number and serious nature of juvenile crimes, the vast majority of
Alaskans feel juvenile offenders are overprotected.
SENATOR SALO continued. Section 1 lists those records still
protected. Section 1(d)(2) exempts the records of minors in need
of aid to prevent the loss of federal funding. Section 2 again
addresses the child in need of aid confidentiality provision, and
Section 3 pertains to the opening of records and their
availability. The fiscal note from the Department of Health and
Social Services is extensive and deals with the potential loss of
federal funding.
Number 275
SENATOR ADAMS stated both SB 269 and SB 270 conflict with federal
law, and need further review to remedy that problem. Additionally,
the state would lose Title IV funding which amounts to $8 million
per year.
SENATOR GREEN asked if there has been a way to do both. SENATOR
SALO replied she and staff reviewed this problem extensively.
Representative Oken has introduced a bill which addresses the same
issue and may come closest to maintaining federal funds. She
explained if the Court System is asked to differentiate between
records of minors, the process to delineate between all of the
records would be extensive, therefore not only would federal
funding be jeopardized, but the workload would increase
substantially.
SENATOR ADAMS questioned whether the general policy issue of
opening records of children 13 and older should be reviewed.
SENATOR GREEN asked if any distinction is made regarding access to
records based on the nature of the crime, under current law or in
SB 269. SENATOR SALO replied SB 269 does allow records of felons
to be opened, but the differentiation was made in the spirit of
preventing the names of minors who had committed one misdemeanor
from being released, rather than to comply with federal law. She
commented the records would become closed again at age 18 if the
sentence had been served, but that is unlikely if a person
committed a felony.
SENATOR TAYLOR announced he would hold further testimony on SB 269
until both Senators Frank and Halford have presented testimony on
their bills.
The committee took public testimony on SB 269, SB 270 and SB 289.
Number 473
CARMEN CLARK-WEEKS, Anchorage Municipal Prosecutor, testified in
support of SB 270. The bill grants the municipality flexibility
when responding to low-level juvenile offenses. Current response
demands to an increased number of serious juvenile offenses
prevents the municipality from giving attention to lower-level
offenses. Section 1 would allow the municipality to set up a
program to allow individuals to be immediately charged with the
infraction, would appoint a hearing officer to respond to the
charges and set immediate consequences. Section 2 gives the court
more options when determining the juvenile's level of
dangerousness, community needs, likelihood that parents or
guardians will get them to court, and the likelihood of
reappearance in court. Currently the juvenile court system, in
making conditions of release or dispositional orders, is restricted
to choosing the option that is in the best interest of the
juvenile. SB 270 incorporates the same factors used by the court
with adult offenders. Regarding the policy issue of record
disclosure, Ms. Clark-Weeks commented that although the public
perceives the juvenile justice system to be ineffective, to a large
degree, that misperception is created by the cloak of secrecy
surrounding that system. The secrecy allows judges, prosecutors,
defense attorneys and witnesses to avoid responsibility and
accountability.
LYNN STIMLER, Executive Director of the Alaska Civil Liberties
Union (ACLU), testified in opposition to the record disclosure
provision in both SB 269 and SB 270. She discussed HB 115 which
did not pass out of committee because of the fiscal note attached
to it. She asked for more clarification of the costs associated
with record disclosure. She disagreed that secrecy is a problem.
She noted juveniles have a lesser right to attorneys than adults
therefore finding enough attorneys to defend disclosure of records
will be difficult. Juveniles have a fundamental right of privacy
and a right to rehabilitation; the disclosure of records is
violative of those rights and may be detrimental to employment and
educational potential. She noted HB 104 permits the release of
juvenile records to the media. She felt it important that all of
these bills be reviewed simultaneously so that this issue is
addressed with consistency regarding juvenile rights.
Number 569
SENATOR TAYLOR commented many people share the same concerns but
felt it is difficult to rationalize the current policy in which a
juvenile is treated as an adult in district court and the name is
disclosed if he/she committed misdemeanor offenses, such as
reckless driving, in possession of tobacco and/or alcohol, or
damaging public property, however if that same juvenile stole a
vehicle, a felony offense, he/she falls under the jurisdiction of
the Division of Family and Youth Services and records are kept
confidential.
TAPE ONE, SIDE TWO
Number 000
MS. STIMLER felt the scenario described to be somewhat inflammatory
but plausible. She noted the State of Alaska has had a consistent
policy in regard to the protection of juvenile records but is now
moving toward disclosure. Although she opposed disclosure of any
juvenile records, she repeated her belief that a piecemeal approach
may be unconstitutional and may violate important federal
legislation that was enacted for a purpose. She asked if the
legislature will be setting up a revolving door of recidivism
because disclosing records stigmatizes juveniles. She felt the
goal of the juvenile justice system should be rehabilitation.
SENATOR TAYLOR clarified his opinion that existing state law is a
piecemeal approach which treats juveniles as adults for some
offenses and not for others with little rationale for the
differentiation. He agreed a more consistent approach is
necessary to meet objectives.
MS. STIMLER added that if the legislative focus regarding these
bills is on finding ways to prevent the loss of federal funds, the
same problems will exist. SENATOR TAYLOR commented the goal should
be to create a rational policy and asked Ms. Stimler to provide
written suggestions.
Number 544
MS. CLARK-WEEKS clarified if a juvenile did more than $50 in damage
to public property in Anchorage, the juvenile would be charged with
a criminal offense as a juvenile, not as an adult, based on Green
v. State. She explained in that Alaska Supreme Court decision, a
distinction was made between traffic offenses under Title 28 and
criminal offenses under Title 11.
CHRIS CHRISTENSEN, general counsel to the Alaska Court System,
testified on both SB 269 and SB 270. The Alaska Court System takes
no position on either piece of legislation. A fiscal note has been
completed for SB 269, but not for SB 270. Approximately three-
quarters of the cost of the submitted fiscal note is due to the
fact that all existing juvenile records in the specified categories
would need to be opened, not just records created after the
effective date. The Court System's filing system treats all such
records as confidential. A review of all files would be extremely
time consuming and expensive but necessary for two reasons. The
court handles both delinquency cases and child in need of aid
(CHINA) cases. Because of the relationship between a juvenile's
CHINA case and delinquency case, there is frequently much CHINA
developed information in a delinquency file. This information
would need to be separated out before the files could become
public. Much of the time, the Court System will not know why
information was put in a file, and whether it was CHINA
information. If either bill passes, a new system will be created
and the cost to do so prospectively would be much less. Second,
unlike adult criminal files which typically have a separate file
for each arrest, a juvenile's entire delinquent history is usually
handled in a single file. It would require substantial clerical
effort to review a file and separate out the confidential matters
from the public matters. He explained the current procedure used
by the Court System when an adult file is requested, which is not
computerized. Statewide, courts receive over 3500 written requests
per year for adult criminal records outside the city where the
court is located. Many more individuals and businesses make
requests at the court house. In Anchorage alone, approximately 75
people per day request 500 individual files. The Court System
faces a tremendous potential impact if SB 269 is made retroactive.
SENATOR TAYLOR asked if the Court System has determined the fiscal
impact of the infraction portion of SB 270. MR. CHRISTENSEN
replied the fiscal note has not been prepared, but that is one of
the areas that will have associated costs. Currently a person
charged with a municipal infraction can pay the fine directly to
the municipality if the person does not choose to contest the
infraction and pays in a timely manner. Approximately one-third of
municipal infractions result in courthouse activity. The court
system has predicted the largest single class of new municipal
citations will be curfew violations and estimates 500 to 1,000 of
those violations per year in Anchorage, and approximately 2,000
statewide.
SENATOR TAYLOR stated one portion of SB 270 would allow
municipalities to use a minor violation statute to impose up to a
$300 fine for certain violations, the other portion allows for
disclosure of records for juveniles over the age of 13. He asked
Mr. Christensen his opinion of utilizing violations as a way of
controlling juvenile activities. MR. CHRISTENSEN replied the
Supreme Court would take no position on that approach.
Number 453
CAM CARLSON, testifying from Fairbanks, stated keeping the names of
juvenile delinquents confidential has not deterred delinquent
behavior. She believed the best deterrent would be to publish
names and pictures on the front page of newspapers statewide. She
supported more exposure of juvenile offenders.
DIANE WORLEY, Director of the Division of Family and Youth Services
(DFYS), testified on SB 269 and SB 270. DFYS will lose up to $8
million if either bill is enacted.
SENATOR TAYLOR asked if she could offer recommendations. MS.
WORLEY noted DFYS worked closely with Representative Kott on HB
104. They thought they had designed a process whereby federal
dollars would not be lost, however in further discussions with the
federal government, that process would jeopardize those funds.
DFYS is currently meeting with Region 10 officials and other
federal officials to obtain a written determination specifying what
can and cannot be part of file disclosure. DFYS is also reviewing
how other states are addressing this problem.
Number 410
SENATOR TAYLOR asked Ms. Worley why Alaska is not losing federal
funds at present since Alaska has chosen, as a state, to publically
disclose traffic violations, fish and game violations, parks
violations, and minor consumption of alcohol and tobacco
possession. MS. WORLEY replied federal funding is strictly related
to those cases dealt with through DFYS which include both CHINA and
juvenile delinquents. Those offenders are not being treated in
district court as adults.
SENATOR TAYLOR questioned whether it would be simpler to add a
provision requiring all juveniles committing misdemeanors to be
treated as adults. That would maintain the separate category of
the worst felons.
MS. WORLEY responded the DFYS strongly believes youth need to be
accountable and the community needs to be protected, but also
believes an avenue for rehabilitation needs to be available.
Keeping juveniles in the juvenile justice system creates a better
avenue for that component of the system and by providing
rehabilitation, those offenders are less likely to become repeat
offenders.
Number 393
SENATOR TAYLOR repeated the legislature needs to develop a more
rational system for distinguishing between certain juvenile
offenses. MS. WORLEY agreed a thoughtful and planned process is
necessary and the goal of DFYS. The Governor's Conference on Youth
and Justice is looking at prevention efforts, early intervention,
and the profile of current offenders. She offered to provide the
committee with the funding determination from the federal
government when it is received, to be used as a starting point for
a workable solution.
SENATOR ADAMS moved adoption of the proposed committee substitute
(Version G) of SB 289. There being no objection, the motion
carried.
The committee took public testimony from Fairbanks on CSSB 289.
JOHN REGITANO, the Executive Director of the Fairbanks Native
Association (FNA), supported the legislation as it addresses
concerns of families of runaway children without decreasing child
protective provisions, and does not jeopardize existing funding to
runaway shelters.
AL NEAR concurred with Mr. Regitano's testimony and supported the
changes made in the committee substitute. He suggested striking
the "just cause" language altogether because he did not believe
there is any just cause for keeping a child away from school. He
agreed with changing the word "suspect" to "believe" but felt a
runaway should be placed in a more secure facility if he/she leaves
the semi-secure shelter.
GUY PATTERSON agreed with Mr. Near's suggestion that runaways that
continue to leave shelters be placed in a more secure facility. As
a parent of a runaway, he has seen the system abused by runaways
repeatedly. He questioned whether changing the word "suspect" to
"believe" would disadvantage the parent in court. He believed a
different agency, not the police officer, should do the
investigation.
FLORENCE LOUCKS, Director of the Family Focus Shelter, felt CSSB
289 addresses parents concerns, the concerns of shelter providers,
and the problem of people who harbor runaways. She supported the
semi-secure provision, as it does not violate federal regulations
regarding restraining adolescents.
Number 108
SENATOR TAYLOR asked what will prevent the revolving door problem.
MS. LOUCKS responded that this provision places the youth in
protective custody, which is not the case at present.
SENATOR TAYLOR stated current law allows for a delinquency petition
when the minor is refusing care. A record of the minor's absences
from a facility could be presented to a judge. MS. LOUCK agreed
this provision would provide a paper trail.
JUDY SHIFFLER stated her support of CSSB 289 as a parent, teacher
and concerned community member. Runaways quickly become wise to
the procedures of the social service and justice systems and find
easy loopholes. The bill helps protect runaways from their own and
other's behavior by requiring early notification of runaways and
establishing stiffer and quicker consequences for the child. She
agreed increasing consequences are necessary to prevent the
revolving door syndrome.
MS. CARLSON thanked Senator Frank for his work on CSSB 289 as she
has volunteered in this arena for 15 years. She has seen too many
families destroyed by governmental interference with families. The
state should not be taking custody of children unless it can
provide better care and can prove the family to be a major failure.
TAPE TWO, SIDE ONE
Number 000
SENATOR TAYLOR moved adoption of amendment #1 to CSSB 289 (page 1,
line 14 delete "without just cause" and on page 2, line 5 delete
"within 12 hours").
SENATOR ADAMS requested the amendments be voted on individually so
that the Department of Law can address the "suspect" language.
There being no objection to adoption of amendment #1, the motion
carried.
SENATOR TAYLOR moved adoption of amendment #2 to CSSB 289am (on
page 2, line 29 and on page 3, line 3, delete the word "suspect"
and insert the word "believe"). SENATOR ADAMS objected and
requested testimony from the Department of Law.
ANNE CARPENETI, Department of Law, stated the change from "suspect"
to "believe" raises the standard and is more commonly used in legal
issues. She requested time to review AS 47.17 before taking a
position on that change.
SENATOR TAYLOR stated that because the bill has two more committee
referrals, the Department of Law's position could be provided to
either of those committees.
SENATOR ADAMS maintained his objection to the adoption of amendment
SENATOR TAYLOR withdrew the motion to adopt amendment #2 and
announced he would repeat it on Wednesday, after the Department of
Law has had the opportunity to review it.
SENATOR ADAMS requested a position paper on CSSB 289 am from the
Division of Family and Youth Services prior to Wednesday.
MS. CARPENETI asked to comment on CSSB 289. She stated this bill
brings into Title 11 many of the concepts used often in Title 47.
Those concepts are not defined in Title 11 and are difficult for
prosecutors to deal with. She agreed with removal of the 12 hour
requirement as it would be difficult for the state to prove the
custodian knew, or should have known, that the minor was absent,
within 12 hours. She stated the best agency to notify about a
runaway is the police, rather the Department of Health and Social
Services, because the police station is staffed seven days per
week. Regarding the affirmative defense, the meaning of "welfare
and imminent danger" is not defined in Title 11. She also
questioned what would be considered a "reasonable effort" in terms
of a person taking in a runaway child in an attempt to help, and
whether it is asking too much for that person to determine whether
there is immediate space at the Department of Health and Social
Services. She asked for the opportunity to work with the sponsor
to tighten up the language.
SENATOR TAYLOR announced CSSB 289 am would be scheduled on
Wednesday, and asked Ms. Carpeneti to have amendments prepared.
Regarding SB 269 and SB 270, MS. CARPENETI stated the Department of
Law echoes the comments made by Ms. Worley.
SENATOR TAYLOR adjourned the meeting at 3:21 p.m.
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