Legislature(1997 - 1998)

04/23/1997 01:44 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
          HB   6 RELEASE OF INFORMATION ABOUT MINORS                          
                                                                              
  REPRESENTATIVE PETE KELLY,  sponsor of HB 6, stated currently there          
 exists a veil of secrecy around juvenile crime.  Current laws allow           
 juveniles to commit violent criminal acts, safe in the knowledge              
 that their names will be kept confidential by the authorities.                
 That public policy does not provide protection to the public.                 
 Several recent cases in Fairbanks illustrate the need for                     
 disclosure.  In one case a man was killed during a daytime robbery            
 by a teen.  The newspaper reported that the names of the two                  
 juveniles who were with the murderer would not be released.  Since            
 then, the juveniles were waived into adult court and their names              
 were released, but that does not often happen.  A second example              
 involved David Knutsen who shot a State Trooper three times.  He              
 was involved in numerous burglaries.  HB 6 has been reworked                  
 through the committee process and is a bill that will protect, and            
 give a second chance, to those juveniles who do not pose a threat             
 to public safety, but does allow the public to know the names of              
 juveniles who are committing serious crimes for the second time.              
                                                                               
  SENATOR PEARCE  asked Representative Kelly to explain how the                
 disclosure provision will work.                                               
                                                                               
 REPRESENTATIVE KELLY  referred to a diagram illustrating a two prong          
 system.  When a juvenile is arrested, he/she would go through a               
 preliminary investigation and then if he/she admits guilt, an                 
 informal adjustment would occur with the outcome being restitution            
 and rehabilitation or placement.  If DHSS believes the juvenile to            
 be dangerous, or if the juvenile resists, the juvenile will be sent           
 to petition also to provide for juveniles who are released against            
 the wishes of DHSS before they are adjudicated.  There can be a               
 long time period between release and adjudication when they are               
 free to continue their activities.  Also, DHSS feared adjudication            
 would cause a logjam of petitions because of the chance that the              
 case would be thrown out of court.  As a compromise, a process was            
 established in which DHSS can petition the court to prohibit name             
 disclosure based on one of two factors: that the case is an                   
 isolated incident; or that the juvenile does not pose any further             
 danger to the public.  Representative Kelly added that he believes            
 the fiscal note for the bill is legitimate.                                   
                                                                               
  SENATOR PARNELL  asked Representative Kelly if he believes HB 6 will         
 be cost effective.   REPRESENTATATIVE KELLY  said he does and added           
 that this issue is extremely high profile and he has received a lot           
 of support on HB 6.                                                           
                                                                               
  SENATOR PARNELL  asked Representative Kelly if he believes HB 6 will         
 have any deterrent value.   REPRESENTATIVE KELLY  said he did not; HB
 6 is strictly to enhance public safety.                                       
                                                                               
 Number 223                                                                    
                                                                               
  BARBARA BRINK , the current Acting Director of the Alaska Public             
 Defender Agency, made the following comments.  The debate between             
 the public's need to know and juvenile confidentiality is not a new           
 one.  Courts and Legislatures have struggled with it for years.               
 Chief Justice Rehnquist addressed this issue in 1978 in Smith v.              
 Daly Publishing and wrote an opinion in favor of confidentiality as           
 follows:                                                                      
 It is a hallmark of our juvenile justice system in the United                
 States that virtually from its inception from at end of the                   
 last century, proceedings have been conducted outside of the                  
 public's full gaze and that youth brought before the juvenile                 
 courts have been shielded from publicity.  This insistence on                 
 confidentiality is born of a tender concern for the welfare of                
 the child, to hide his youthful errors and bury them in the                   
 graveyard of the forgotten past.  The prohibition of                          
 publication of a juvenile's name is designed to protect the                   
 young person from the stigma of his misconduct and is rooted                  
 in the principle that the court concern with juvenile affairs                 
 serves as a rehabilitative and protective agency of the state.                
 Publication of the names of juvenile offenders may seriously                  
 impair the rehabilitative goals of the juvenile justice system                
 and handicap the youth's prospect for adjustments to society                  
 and acceptance by the public.  This exposure brings undue                     
 embarassment to the families of youth offenders and may cause                 
 the juvenile to lose employment opportunities or provide the                  
 hard core delinquent with the kind of attention he seeks                      
 thereby encouraging him to commit further anti-social acts.                   
 The resultant widespread dissemination of a juvenile                          
 offender's name therefore may [indisc.] beneficient and                       
 rehabilitative purposes of the juvenile court system.                         
                                                                               
  MS. BRINK  pointed out that no other state provides for public               
 disclosure of this kind of informal and adjustment information.               
 These are the kinds of juvenile offenders who have a good chance at           
 rehabilitation.  Juveniles who get adjusted are prepared to accept            
 responsibility and make restitution.  Those juveniles will be                 
 stigmatized and branded.  Names will be disclosed prior to                    
 adjudication, so these juveniles will be tried in the court of                
 public opinion.                                                               
                                                                               
  PAM KARALUNAS , representing the Arctic Alliance for People, interim         
 Executive Director for the Resource Center for Parents and                    
 Children, and Big Brothers and Sisters, and as the parent of a                
 juvenile offender, testified.  Although she shares the frustrations           
 of many people in the community about how juvenile crime is                   
 mishandled, she does not believe HB 6 will correct the situation.             
 She expressed concern that HB 6 contains no age limit, that                   
 informal adjustments will be published, and that name disclosure              
 occurs before the juvenile is proven guilty.                                  
                                                                               
 Number 300                                                                    
                                                                               
  BETH GAMBRELL  expressed concern that children make mistakes, and            
 should be allowed to, except when firearms are involved.  She does            
 not believe publishing the names of those involved in informal                
 adjustment is appropriate.  Name disclosure should not occur prior            
 to a court decision, due to the negative effects of placing a label           
 on a child because the label could become a self-fulfilling                   
 prophecy.                                                                     
                                                                               
  C-JOE DIMATTEO , with the Alaska Council on Prevention of Alcohol            
 and Drug Abuse and a member of the Governor's Council on Youth and            
 Justice, echoed the previous witnesses' concerns.  He asked the               
 committee to consider including an age limit and to prevent names             
 from being submitted until after adjudication.  Many public                   
 comments made to the Governor's Council support those changes.                
                                                                               
  D. BUNTI REED , a parent of a child with a traumatic brain injury            
 and a secondary diagnosis of a mental illness, noted about 20 other           
 parents who were attending the Children's Mental Health Convention            
 attempted to testify today but had to leave.  She agreed with Judge           
 Rehnquist's opinion and is concerned with words contained in HB 6             
 such as "alleged" and "informal" because it will allow children and           
 parents to be labelled.  Many children in the juvenile system are             
 identified as having a mental illness in their first infraction               
 with the law.  Although the intent of HB 6 is to protect                      
 communities, she does not agree the bill will do that, and sees it            
 as a gross violation of parents and chidlren in Alaska.                       
                                                                               
  CHAIRMAN TAYLOR  asked Ms. Reed who the people were that left.   MS.         
 REED  provided some of the names.                                             
                                                                               
  LAURA ROREM , a parent of two children who have suffered from brain          
 disorders, one with mental illness and the other with fetal alcohol           
 syndrome, and a member of the Alaska Mental Health Board, made the            
 following comments.  Brain disorders are no-fault diseases that               
 affect behavior, thinking processes, mood, judgment, reason and               
 decision to name only a few.  They are caused by bio-chemical                 
 and/or abnormalities in the brain.  Weakness of will and bad                  
 parenting are not to blame.  These problems are not caused by                 
 problems in living, bad environment, abuse or neglect.  These                 
 diseases are grossly misunderstood and treatment for them is                  
 sporadic, haphazard, difficult to access, and blame-oriented.                 
 Children and adults with brain disorders are good people but their            
 brains are diseased.  They are often incapable of making the                  
 distinction between right and wrong and are unable to understand              
 consequences.  Often, early intervention is not available and                 
 services are not provided until after a child commits a crime.                
 Instead, the child and family will be ostracized and publically               
 humiliated, and HB 6 will bring punishment rather than treatment              
 and will violate one's right to privacy.                                      
                                                                               
 Number 464                                                                    
                                                                               
  SENATOR PEARCE  commented that she has a lot of sympathy for the             
 parents of mentally ill children but noted the crimes listed in HB
 6 involve deadly weapons, arson, burglary, child pornography,                 
 promoting prostition, and misconduct involving a controlled                   
 substance.  She questioned whether there is a linkage between                 
 mental illness in youth and those types of crimes.                            
                                                                               
  MARY MESSNER , a Public Health Nurse in Barrow, stated she works             
 with families and children with special needs.  Many of those                 
 children have neuro-biological disorders.  Forty to seventy percent           
 of the children in the juvenile justice system nationwide are not             
 diagnosed with mental health problems early enough.  Children with            
 neuro-biological disorders are most often not diagnosed at all, and           
 when they are diagnosed the disorders are complex, evolving, and              
 often co-exist with other disorders.  Public disclosure of the                
 names of juveniles and their families is wrong.  If the Senate                
 wishes to address juvenile crime, she suggested considering a bill            
 for mandatory mental health evaluation by a child and adolescent              
 psychiatrist of all juveniles who enter the juvenile justice at any           
 point and for juveniles entering substance abuse treatment, where             
 70 percent are shown to have treatable neuro-biological disorders.            
                                                                               
 Number 450                                                                    
                                                                               
  CHAIRMAN TAYLOR  asked Ms. Messner to address Senator Pearce's               
 question about the delineation of serious crimes in HB 6 and their            
 link to mental illness.                                                       
                                                                               
  D. BUNTI REED  addressed Senator Pearce's question as follows.  The          
 cognitive disability of her son causes him to respond toward                  
 aggressive behavior of other students more violently than other               
 youngsters of his age.  Last week she was called into school                  
 because her son attempted to assault another student with a                   
 bookbag.  The police were also called and considered her son's                
 action to be classifiable as assault with a weapon.  Her son is               
 mentally retarded and mentally ill.  She felt the embarassment to             
 his siblings of an arrest in the family is almost criminal itself.            
                                                                               
  SENATOR PEARCE  asked if the other students and parents of those             
 students in the classroom with Ms. Reed's son are aware of the                
 disorder and that provocations that may seem normal to them to be             
 more difficult for her son.                                                   
                                                                               
  MS. REED  responded that the immediate classroom members are aware           
 but other students are not.  Because of his disability, he is                 
 fairly comical and due to adolescent impetuosity, he is teased and            
 baited frequently.                                                            
                                                                               
 Number 479                                                                    
                                                                               
  KENNETH DAVIS  testified in opposition to HB 6.  He is the parent of         
 four children; two are severely emotionally disabled; one with                
 fetal alcohol syndrome, psychotic brain disorder, seizure disorder,           
 learning disabled, attention deficit and hyperactive disorder, and            
 is an acting sex offender.  If HB 6 is passed, the effectiveness of           
 his son's treatment will cease.  As an active sex offender who is             
 receiving treatment, his son is required to live in specialized               
 foster care.  Publishing the names of the offender, his family, and           
 the specialized foster family who are acting guardians, will have             
 a negative effect.  He questioned how many foster families would be           
 willing to accept a high risk child if they must suffer harassment            
 and ridicule from friends and neighbors after name disclosure.                
                                                                               
  CECELIA DAVIS  stated that as parents, it is their duty and                  
 obligation to the community to protect it against their son which             
 is why he is in a specialized program.  But, she is also the parent           
 of both a victim and an offender and is stuck in several positions.           
 Often when the name of the offender is disclosed, the victim's                
 identity becomes known.  The victim can be devastated because of              
 the ridicule.  She informed the committee that her son's mental               
 disabilities are the result of his natural mother's misuse of                 
 alcohol.  As a victim of sexual abuse herself, she feels obligated            
 as a parent to protect society and educate others so that they can            
 help.  She cautioned that if HB 6 passes, as currently written, it            
 will be devastating to children with mental disabilities and to               
 victims.                                                                      
                                                                               
  REPRESENTATIVE KELLY  clarified that a provision on page 4 prohibits         
 the names of foster families from being disclosed unless they have            
 the child on a permanent or long term basis.  In addition, some of            
 the examples given previously would fall under the Children in Need           
 of Aid provisions, and their names would not be disclosed.                    
                                                                               
  LORI NAMYNIUK , President of the Substance Abuse Directors                   
 Association of Alaska, testified in opposition to HB 6 because of             
 the breaching of confidentiality at the petition stage and because            
 the bill contains no age limit.  There is no research that                    
 indicates that action of this type will decrease juvenile                     
 deliquency.  Rather than adopting a punitive approach, the                    
 Legislature needs to look for solutions.  The projected $1.2                  
 million cost of HB 6 could be used for intervention activities.               
                                                                               
 Number 547                                                                    
                                                                               
  MARGOT KNUTH , Assistant Attorney General and representative of the          
 Governor's Council on Juvenile Justice, testified.  At a conference           
 of the Council held last year, the most divisive issue discussed              
 was the issue of disclosure of the names of juvenile offenders.               
 The Conference ultimately recommended that some disclosure of                 
 juvenile names is necessary to protect the public; of those                   
 juveniles at least 15 years of age who committed a felony offense             
 against a person, or a second burglary offense.  SB 69 was                    
 introduced by the Governor and sets the age limit at 16.  The                 
 single largest provider of mental health care in the State of                 
 Alaska is the Department of Corrections.  There are more mentally             
 ill people housed by the Department of Corrections than in all                
 other mental health facilities.  The Governor's Conference                    
 recommendation bill differs from HB 6 is that it only follows the             
 cases that DHSS has identified as the serious offenders that need             
 to fall within the court's jurisdiction.  A serious concern                   
 expressed at the Conference was that disclosing the name of the               
 offender often identifies the victim inadvertently, especially in             
 sexual offenses among family members.  Yet, name disclosure to                
 protect others makes drawing the line a difficult policy issue.               
 She acknowledged and appreciates Representative Kelly's effort to             
 work very hard to accommodate the Council's concerns and noted the            
 HB 6 has been tailored to include only very serious crimes and                
 contains an escape provision where the court can be petitioned to             
 prevent name disclosure.                                                      
                                                                               
 TAPE 97-30, SIDE B                                                            
                                                                               
  DR. RUSSELL HOFFMAN  of Bethel stated that he has been practicing            
 medicine in Alaska since 1973 and specializes in psychiatry and               
 forensic psychiatry.  He advises the Court System about the reasons           
 for people's behavior and designs treatment programs for offenders.           
 He noted he travelled to Juneau at his own expense because he feels           
 strongly about the complex issue of disclosure.  He noted the bill            
 specifies in five different places that the release of information            
 about the victim will be prohibited which illustrates that the                
 release of information can be a hurtful process.  He discussed a              
 recent tragic event in the Bethel school system and how the gossip            
 and rumors about people periperally involved was extremely harmful            
 to those people and their families.  He noted the ripple effect of            
 those rumors on other community members.  He explained that is an             
 extreme example of how HB 6 could play out in a small community.              
 The issue of disclosure is a very important one for those who try             
 to treat children and turn a negative situation into a positive               
 one.  He stated in the past 4 1/2 hours he has received over 100              
 signatures from the Bethel community in opposition to HB 6.                   
                                                                               
  JOHN CYR , President of NEA-Alaska, stated that one thing of                 
 paramount importance to NEA's members is the ability to know the              
 kinds of students they work with on a daily basis.  NEA's primary             
 concern is with the stage at which the offender's name is released.           
 NEA prefers that the name be released after adjudication when the             
 juvenile has been convicted.  In his experience, he knows of                  
 juveniles who have been accused of very serious crimes erroneously.           
 Had those juveniles' names been released, serious consequences                
 would have occurred.  One of NEA's primary functions is to keep               
 students in school and needs to develop alternative programs,                 
 especially to deal with violence.  NEA also believes there is a               
 critical need for juvenile detention centers to provide adequate              
 help for these offenders.                                                     
                                                                               
  DIANE WORLEY , Director of the Division of Family and Youth                  
 Services, DHSS, stated that DHSS has worked very closely with                 
 Representative Kelly and understands the direction he is taking               
 with HB 6, but is concerned with how far the bill goes.  HB 6                 
 conflicts with DHSS' goal of working with families and children,              
 and to protect children and to rehabilitate where possible.  DHSS             
 is concerned about striking the necessary balance to protect                  
 communities from juveniles, who have committed serious crimes or              
 are repeat offenders, but believes HB 6 is too broad and covers all           
 ages, and does not take into account mitigating circumstances.                
 DHSS does support some level of disclosure but does not believe HB
 6 establishes the appropriate balance.                                        
                                                                               
 Number 465                                                                    
                                                                               
  SENATOR PARNELL  asked what specific changes need to be made to HB
 6 to get support from the Administration.                                     
                                                                               
  MS. WORLEY  answered that she is speaking only for DHSS and not for          
 the Governor's Children's Cabinet.                                            
                                                                               
  SENATOR PARNELL  asked Ms. Worley to clarify her statement.                  
                                                                               
  MS. WORLEY  said DHSS is part of the Children's Cabinet and has              
 worked closely with it on HB 6 but DHSS' perspective is slightly              
 different because it works with these juveniles on a daily basis.             
 She clarified that because of the direct impact HB 6 will have on             
 DHSS, it has more specific concerns than other departments.                   
  SENATOR PARNELL  asked if DHSS' specific concerns are age and mental         
 health.   MS. WORLEY  replied yes, and a third issue is informal              
 adjustment because that is the key to the work DHSS does with                 
 juveniles; with those who admit to a crime and are willing to work            
 with DHSS and their families on rehabilitation.                               
                                                                               
  SENATOR PARNELL  asked Ms. Worley if she thinks disclosure should            
 only occur when juveniles are on the yellow track.   MS. WORLEY  said         
 that is correct.                                                              
                                                                               
  CHAIRMAN TAYLOR  summarized Ms. Worley's preference as age 16,               
 yellow-track, upon conviction.                                                
                                                                               
  ANGELA SALERNO , Executive Director of the National Association of           
 Social Workers, pointed out that confidentiality of juvenile                  
 records was part of a larger reform measure which began early in              
 the Century and established juvenile courts to accommodate the                
 disability of youth.  HB 6 would be changing that in a fundamental            
 and critical way and creates a radical and untested measure.                  
 Although we are all concerned about juvenile crime, we should not             
 act out of desperation.  The purpose of HB 6 is to protect                    
 ourselves but is illusory and will make us less safe because we               
 will be forcing children further down the road toward crime.                  
                                                                               
 Number 398                                                                    
                                                                               
  CHAIRMAN TAYLOR  asked Ms. Salerno when "we" decided that non-               
 publication of the names of juveniles was an attribute of the                 
 juvenile justice system.   MS. SALERNO  said she did not have the             
 date in Alaska, but the practice was established when the first               
 juvenile court was created in Illinois at the turn of the Century.            
                                                                               
  CHAIRMAN TAYLOR  commented on the schizophrenic logic we have taken          
 toward the responsibilities we allow juveniles to have, and those             
 that we do not.                                                               
                                                                               
  MS. SALERNO  emphasised that DHSS' charge is to work with those              
 juveniles who might be rehabilitated.  Those children often suffer            
 the disabiilty of lack of parental control.                                   
                                                                               
  CHAIRMAN TAYLOR  said that sometimes parents do everything they can          
 for a child yet the child chooses to be delinquent.   MS. SALERNO             
 agreed.                                                                       
                                                                               
  MR. CYR  commented he believes that adults are absolutely                    
 responsible for their children, but questioned at what point the              
 system should take over when a child gets in trouble.  He expressed           
 concern that we may be acting prematurely when children can be                
 saved or have been misidentified.                                             
                                                                               
  CHAIRMAN TAYLOR  noted many legislators are concerned that several           
 years ago, in attempt to keep names anonymous, foster parents were            
 not given information about the young people being placed in their            
 homes and the foster parents suffered major consequences because of           
 it.                                                                           
                                                                               
 Number 347                                                                    
                                                                               
  REPRESENTATIVE KELLY  addressed comments made by previous witnesses.         
 The informal adjustment process allows DHSS to decide whether the             
 child can be rehabilitated.  He agrees with that provision and                
 adopted the Children's Cabinet amendment which provides for                   
 disclosure for a second offense.  A provision for formal                      
 adjudication was included in the original bill, but DHSS requested            
 that be changed to petition to prevent a logjam.  When he agreed to           
 petition, DHSS argued the need to change to informal adjudication.            
 At that point he included an amendment from the Lieutenant                    
 Governor's Office which allows DHSS to petition against disclosure.           
 At this point in time, DHSS is still pushing for informal                     
 adjudication.  He stated DHSS wants the parents or foster parents             
 of the defendant to be able to petition the court.  He believes, as           
 well as the Court System, that system will not work because every             
 attorney who represents one of these juveniles will be guilty of              
 malpractice for not petitioning the Court.  DFYS is not currently             
 able to disclose that a party who was arrested is innocent.  HB 6             
 would allow DFYS and the Court to release the names of those who              
 are found innocent.                                                           
                                                                               
 Regarding the two-track system,  REPRESENTATIVE KELLY  said he has            
 met everyone's objections except DFYS' because it is opposed to any           
 disclosure whatsoever.  HB 6 contains escape hatches and only                 
 applies to offenders who commit very serious crimes for a second              
 time.                                                                         
                                                                               
  CHAIRMAN TAYLOR  announced HB 6 would be heard again on Friday,              
 April 25, and adjourned the meeting at 4:00 p.m.                              

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