Legislature(1995 - 1996)

02/26/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        SB 270 JUVENILE OFFENDER PROCEEDINGS & RECORDS                        
 KELLY HUBER, legislative assistant to Senator Halford, sponsor of             
 SB 270, explained the legislation as follows.  SB 270 reflects                
 concerns about the juvenile justice system brought to Senator                 
 Halford's attention by the Municipality of Anchorage.  SB 270                 
 provides municipalities the ability to respond to less serious                
 juvenile offenders by expanding its jurisdiction to subject                   
 juveniles who commit less serious crimes to civil infractions                 
 and/or mediation.  SB 270 also grants the court more flexibility              
 when considering standard bail in sentencing factors.  This will              
 provide the courts the latitude to make appropriate decisions when            
 the public interest differs from the best interest of the juvenile.           
 The bill also amends current statute to make public records of                
 juvenile offenders age 13 or older.  That provision applies to                
 misdemeanor offenses as well as felonies, however there are                   
 specific requirements for different offenses.                                 
 SENATOR TAYLOR asked whether the disclosure provision in SB 270               
 would create the same problems discussed in Senator Salo's bill.              
 MS. HUBER answered that regarding the elimination of federal funds,           
 the sponsor is aware of that possibility and expects that issue to            
 be addressed in the Finance Committee.  SENATOR TAYLOR felt the               
 legal change necessary to satisfy that concern should be made in              
 the Judiciary Committee.  SENATOR ADAMS suggested incorporating SB
 270 into SB 269.                                                              
 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                   
 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                
 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               
 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              
 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                  
 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                       
 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              
 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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