Legislature(1995 - 1996)
02/22/1996 03:12 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
February 22, 1996
3:12 p.m.
MEMBERS PRESENT
Representative Cynthia Toohey, Co-Chair
Representative Con Bunde, Co-Chair
Representative Gary Davis
Representative Norman Rokeberg
Representative Tom Brice
Representative Al Vezey
MEMBERS ABSENT
Representative Caren Robinson
COMMITTEE CALENDAR
* HOUSE BILL NO. 471
"An Act relating to financial assistance for students attending
certain graduate education programs; and providing for an effective
date."
- PASSED CSHB 471(HES) OUT OF COMMITTEE
* SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 387
"An Act relating to minors and to offenses committed by minors, and
to programs relating to minors; relating to the use of citations
for offenses when the offenses are committed by minors, and
authorizing disposition of those offenses by citations that require
performance of community service in lieu of a court appearance;
establishing a curfew for minors, and authorizing municipalities to
establish curfews by ordinance; relating to the detention of
minors, defining certain conduct by minors as violations, and
amending the criminal jurisdiction of the district court to provide
for the disposition of certain offenses involving minors; and
amending Rules 3(b) and 23(d), Alaska Delinquency Rules."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 471
SHORT TITLE: REPAY GRADUATE EDUCATION AID
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
JRN-DATE JRN-PG ACTION
02/05/96 2628 (H) READ THE FIRST TIME - REFERRAL(S)
02/05/96 2628 (H) HES, FINANCE
02/22/96 (H) HES AT 3:00 PM CAPITOL 106
BILL: HB 387
SHORT TITLE: JUVENILE CODE REVISION
SPONSOR(S): REPRESENTATIVE(S) KELLY,THERRIAULT,Rokeberg,Kohring
JRN-DATE JRN-PG ACTION
01/05/96 2367 (H) PREFILE RELEASED
01/08/96 2367 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2368 (H) HES, JUDICIARY, FINANCE
01/19/96 2483 (H) SPONSOR SUBSTITUTE INTRODUCED-
REFERRALS
01/19/96 2484 (H) HES, JUDICIARY, FINANCE
01/19/96 2484 (H) REFERRED TO HES
01/24/96 2528 (H) COSPONSOR(S): ROKEBERG
01/26/96 2548 (H) COSPONSOR(S): KOHRING
01/30/96 (H) HES AT 3:00 PM CAPITOL 106
01/30/96 (H) MINUTE(HES)
02/22/96 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
WENDY REDMAN, Vice President
Statewide University System
University of Alaska
P.O. Box 155000
Fairbanks, Alaska 99775
Telephone: (907) 474-7311
POSITION STATEMENT: Testified on HB 471
BRUCE CAMPBELL, Legislative Administrative Assistant
To Representative Pete Kelly
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801-1182
Telephone: (907) 465-2327
POSITION STATEMENT: Provided an overview of CSSSHB 387
REPRESENTATIVE PETE KELLY
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801-1182
Telephone: (907) 465-2327
POSITION STATEMENT: Introduced CSSSHB 387
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on CSSSHB 387
JANINE REEP, Assistant Attorney General
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on CSSSHB 387
WILLIAM HITCHCOCK, Master
Superior Court, 3rd Judicial District
Alaska Court System
303 K Street
Anchorage, Alaska 99501-2084
Telephone: (907) 264-0419
POSITION STATEMENT: Testified on CSSSHB 387
PAUL WORMAN
2941 Westgate
Fairbanks, Alaska 99709
Telephone: (907) 479-0885
POSITION STATEMENT: Commented on CSSSHB 387
CARL ROSE, Executive Director
Association of Alaska School Boards
316 West 11th Street
Juneau, Alaska 99801
Telephone: (907) 586-1083
POSITION STATEMENT: Testified on CSSSHB 387
ACTION NARRATIVE
TAPE 96-14, SIDE A
Number 001
The House Health, Education and Social Services Standing Committee
was called to order by Co-Chair Bunde at 3:12 p.m. Members present
at the call to order were Representatives Bunde, Davis, Toohey,
Vezey and Brice. Members absent were Representatives Rokeberg and
Robinson. Co-Chair Bunde announced that HB 471 and HB 387 were on
the calendar.
HB 471 - REPAY GRADUATE EDUCATION AID
Number 075
CO-CHAIR BUNDE presented the sponsor statement. He said Alaska has
two graduate education programs in the medical field that are very
expensive and obviously useful education because they deal with the
medical community. There have been varying levels of success with
Alaskans who are subsidized by these programs returning to practice
medicine in Alaska. It has been an ongoing quest of Co-Chair
Bunde's to maximize the return on the state's investment in their
students. He remarked there are a number of ways that can be
accomplished. One way would be to spread the approximate $1.6
million cost of the programs per year for 40 students through the
entire university community. The University of Alaska Fairbanks,
University of Alaska Anchorage and University of Alaska Southeast
could each be asked what they could do with an additional $500,000
and if it would be a good investment having that money impact
20,000 or 30,000 students. The existing programs which take $1.6
million a year to finance the education of only 40 students could
be continued. His frustration is that only a small number of those
students return and practice medicine in Alaska. Co-Chair Bunde
said last year the Western Interstate Commission on Higher
Education (WICHE) program was not funded. He has been contacted by
parents and members of the medical community who are willing to pay
the cost if the program is continued. They want students to have
access to the program. On the other hand, there are students in
the WAMI (Washington, Alaska, Montana and Idaho) program who have
indicated they won't have anything to do with it if it is changed
to a loan program. Co-Chair Bunde said he had some problems with
these students asking for a great deal of money from the state and
not willing to be at least partially responsible for it. In
conclusion, he said these two programs could continue and the
amount of money he is addressing is the subsidy paid by the state
that is the difference between the resident tuition in the state
the student attends and the nonresident tuition. The
administrative costs which are very high are not being addressed.
The loan would be forgiven for the student who partakes of this
program and then returns to the state to practice in their field in
Alaska for a minimum of five years. If, however, that student
chooses to work in the Lower 48, then the student would repay
Alaska for the subsidy he/she received.
CO-CHAIR TOOHEY added that the WAMI program has been in effect
since 1971 and 134 Alaskans have taken part in it. To date, 23 of
those are doctors practicing in Alaska.
WENDY REDMAN, Vice President, Statewide University System,
University of Alaska, interjected it was 46 not 23 doctors.
CO-CHAIR BUNDE commented there seems to be some confusion on the
numbers. The agencies that support the program count everybody who
has ever been in the WAMI program who come to Alaska and work as a
benefit from the program. He pointed out there are students from
Washington and Oregon who come to Alaska to do an internship and
return to Alaska to practice, but they are not the people Alaska
has invested money in. The rates for qualified Alaskans who go
into the program and return to Alaska vary, but are as low as a 2
percent return.
Number 422
REPRESENTATIVE TOM BRICE asked if Co-Chair Bunde had had any
discussions with bond counsel relating to the insertion of a
forgiveness provision into the student loan program.
CO-CHAIR BUNDE replied that only general fund monies were involved.
Number 454
MS. REDMAN said there are currently 46 Alaskan students who went
through the WAMI program practicing in the state of Alaska. That
is not the equivalent rate, and she thinks the equivalent rate is
what Co-Chair Bunde was referring to. She added that in addition
to the 46 students, there is a total of 107 out of 134 WAMI
educated doctors practicing in the state of Alaska. Of the 107
doctors, 46 are Alaskan students which is about a 43 percent return
rate.
CO-CHAIR BUNDE said he wouldn't argue with those figures, but
pointed out that some classes have 2 out of 10 students who return
while other classes may have more. He is of the opinion that when
the state has invested in excess of $160,000 in a student's
education, the return should be 100 percent.
CO-CHAIR BUNDE asked if there were further questions or testimony.
Hearing none, he closed public testimony.
Number 592
REPRESENTATIVE BRICE moved to pass HB 471 out of committee with
individual recommendations.
CO-CHAIR BUNDE explained that a technical amendment was needed
because there was some conflicting language; the original bill
indicated repayment would begin within one year and other student
loans are paid (indisc.).
REPRESENTATIVE BRICE withdrew the motion.
Number 634
REPRESENTATIVE BRICE made a motion to adopt Amendment 1. Hearing
no objection, Amendment 1 was adopted.
Number 642
REPRESENTATIVE BRICE moved to pass CSHB 471(HES) out of committee
with individual recommendations and zero fiscal note. Hearing no
objection, it was so ordered.
HB 387 - JUVENILE CODE REVISION
Number 673
BRUCE CAMPBELL, Legislative Administrative Assistant,
Representative Pete Kelly, presented an overview of the materials
in the committee packets. He said each packet contained a copy of
the bill highlighted in two colors; yellow being new portions of
the code that are being created in CSSSHB 387 and the blue
highlighted areas are the portions that are being deleted. He
distributed a copy of draft Amendment 0.1 and Amendment 0.3.
CO-CHAIR BUNDE called an at-ease at 3:23 p.m. and called the
meeting back to order at 3:24 p.m. He asked Mr. Campbell to
address the first amendment.
MR. CAMPBELL thanked members of the Administration and the
legislative body who had provided comments and suggestions in the
drafting of this legislation. He explained Amendment 0.1 is very
lengthy because there were a number of ideas they decided to put
aside which will take off in a different bill.
CO-CHAIR BUNDE commented that it would be helpful if Mr. Campbell
could explain what they are trying to accomplish and the reason for
the separation.
CO-CHAIR BUNDE called an at-ease at 3:25 p.m. and CO-CHAIR TOOHEY
called the meeting back to order at 3:28 p.m.
Number 929
REPRESENTATIVE PETE KELLY, Sponsor, said HB 387 is a rewrite of
existing juvenile crime statutes, but it doesn't deal with the
felony or confidentiality issues. It is designed to approach the
topic of youth crime at the lower level of crime and attempts to
prevent children who are engaging in some of the lower levels of
crime in a system that can't necessarily deal with those acts, and
provide some consequences for those. It also splits in statute how
youth offenders are viewed and separates the children-in-need-of-
aid from the delinquent children. That's probably the most
important thing the bill does because it actually sets up in
statute that this is an abused child and this is how that child
will be dealt with and this is a delinquent child and there will
now be a system to begin dealing with that child.
Number 1026
REPRESENTATIVE KELLY directed committee members' attention to the
truancy section on page 4 of Work Draft 9-LS1276\O, dated 2/19/96,
and said he wanted to make truancy a delinquent act because
currently it wasn't being dealt with very well at the school
district level, mostly because the statutes are cumbersome. For
example, if a principal decided that a child had a truancy problem,
the principal would take it to the administration, the
administration would take it to the school board, the school board
would conduct an investigation and hold a hearing, and then charge
the child's parents in court, depending on the hearings. That
process was so cumbersome that his own school district decided it
really wasn't worth pursuing and got rid of the school district
truancy officer in 1984 or 1985. Representative Kelly explained
this section will be deleted and an amendment will be offered,
which essentially allows the school districts to establish their
own truancy policy.
Number 1157
REPRESENTATIVE KELLY continued that page 8 refers to curfews. He
said rather than establish a statewide curfew, it was determined
that it may be better to allow municipalities to establish curfews.
Currently, some municipalities do have curfews, but he believes it
is being done under the general police powers of the municipality
and there is nothing in Title 29 that actually allows for that.
This legislation would allow for that and the curfew is dealt with
as a violation, with a citation mechanism created in another
section of the bill.
REPRESENTATIVE KELLY referred to pages 11 and 12, Section 24,
Purpose and Policy Relating to Children, and pointed out the reason
for the deletion of "or the protection of the public" is that it
refers to the child in need of aid section of policy. Section 25
is the new policy as it relates to dealing with delinquent
children. Paragraph (b)(1) talks about protection of the public
and reformation of the offender is currently in statute but the new
language is in (b)(2) and (b)(3) which cites that in fact, the
policy of the state will be that some form of sanction can be
required on delinquent children. It should be certain, swift and
may take the form of a reasonable claim on the time and talents of
the minor who has committed the offense. That currently is not in
statute and this sets a little more policy direction regarding
delinquent children. He referred to page 12, line 22, which states
"that the minor's family or guardian may be asked to participate in
supervision of the minor's treatment" and commented that in
California parents are actually fined for their child's
misbehavior. The attempt in CSSSHB 387 is to bring the parents
into the youth's rehabilitation, even to the point of telling them
to pick up the trash or ensuring the child gets to their community
service on time; basically, to supervise the whole process.
Number 1346
REPRESENTATIVE KELLY said the bracketed language on pages 12-22 is
removing references to delinquent behavior from the old section
which is child in need of aid, and is being placed in the later
section which is created for a delinquent child. He referenced
page 22, lines 24-27 and said there was an amendment that deleted
lines 26 and 27. The amendment is to make child support required
by the state a little more equitable. He said the fact is the fee
schedules under AS 44.29.022 do not reflect the real world; some of
those fee schedules are too high and too harsh. The Court Rule
90.3(i) is more reasonable and was requested by the department and
is reflected in Amendment 1.
Number 1453
CO-CHAIR TOOHEY asked for a motion to adopt CSSSHB 387, Work Draft
9-LS1276\0, dated 2/19/96, as the working document.
Number 1459
REPRESENTATIVE DAVIS moved to adopt CSSSHB 387, Work Draft 9-
LS1276\O, dated 2/19/96. Hearing no objection, it was adopted.
Number 1473
REPRESENTATIVE KELLY stated that most of the underlined and
bracketed language on page 23 is technical. However on line 6,
"suspect" has been deleted and "believe" is inserted. He explained
if a police officer "suspects" that child abuse is occurring, he is
required to report that, and it begins a process that sometimes is
unnecessary because the standard of "suspecting" is too low. The
word "believe" makes it a little higher standard for the police
officer to have to report child abuse. This doesn't really go much
to the heart of the bill; it was a housekeeping measure at the
request of the Department of Law.
Number 1544
REPRESENTATIVE KELLY continued that page 27 deals with the ability
of a city or corporation to maintain or operate a juvenile
detention facility, home or work camp. He said there is a space
problem and it is believed that if the community-based services can
be expanded to include private corporations, the burden can start
to be eased on the youth facilities that are currently full. He
doesn't envision any huge facility being built, but there may be
foster care providers who want to expand.
REPRESENTATIVE KELLY commented that changes on pages 27 to 33 again
deletes language out of the current code and inserts it into the
new section. Page 33 begins the new chapter on Juvenile
Delinquency and it essentially defines delinquent behavior. He
explained that under current statute, children in need of aid and
delinquent children are treated much the same. This new chapter
indicates that a delinquent minor is delinquent as a result of
violating a criminal law of the state or municipality of the state
and engaging in conduct that is a noncriminal offense. He added
the noncriminal offenses are spelled out in the citation mechanism.
A community court is created on page 35 which Representative Kelly
envisions being elected with people from the community level, but
not necessarily appointees, who will act as a diversionary court
for some of the lower level crimes; e.g., shoplifting, truancy,
curfew violations, etc. The community court is also tied into the
citation mechanism. Page 36 says the minor's parent or guardian
may be present at any proceeding under this chapter. It was felt
by a lot of people there are things done with the children by the
department that the parent or guardian is not privy to,
particularly if the child is in a foster care situation. The
department doesn't believe that it is much of a problem, but
Representative Kelly talked with a lot of people during the interim
who felt it was needed in statute.
REPRESENTATIVE KELLY referred to the Judgment and Orders Section on
page 40 and said that children coming before the courts and the
department for crimes are getting younger and younger. The idea
for the four-year extension period for probation came from a
retired judge who thought that two years probation was not enough.
In fact, he would get two years good behavior of out the minor, but
as soon as the two years was up the minor was back to their old
habits. Given that the children coming before him were getting
younger and younger, he thought that a four-year extension period
for probation would be better. Representative Kelly said he
actually wanted to go to age 19 which would allow some latitude to
monitor the child up to age 19, but apparently there were some
constitutional problems with that, so he settled for the four
years.
Number 1722
REPRESENTATIVE KELLY stated that page 43 deals with the sex
offender provision. He was trying to get a mechanism by which a
hammer could be held over kids, so to speak, to make sure they
complied with their sex offender treatment. The original language
in the bill wasn't satisfactory, so Amendment 3 was drafted to deal
with that area. Page 44 discusses court dispositional orders and
the best interests of the minor and other considerations. He said
a number of people felt that courts weren't given enough direction
in the criteria for detaining youth. The current statute on page
44, line 7, talks about the best interests of the minor and the
ability of the state to take custody and to care for the minor and
to protect the minor's best interest. That essentially was the
only direction given so there were a lot of judges who were too
lenient and a lot that were too tough. The spectrum was just too
broad. He cited the example of a child who was in a foster care
environment and was a real problem. He came before a particular
judge time and time again. The judge continued not to detain this
child because in her estimation the child was not a danger to
himself, was not a danger to others and was not necessarily a
flight risk. That was the criteria being used in the court rules
for detention. Finally, the child ran away from the foster care
provider without his shoes on in the middle of the winter. At that
point, the judge decided that in fact, the child was finally in
danger to himself and locked the child up. Representative Kelly
didn't think the proper message was being sent that the child could
go out and burglarize a home, but if they left home without shoes,
they were going to jail. Therefore, additional criteria was added
on page 44, lines 11 and 12. The language on line 13 currently
exists in statute, but he wanted to define what "least restrictive
alternative disposition" meant, and it meant that it was the most
conducive to the minor's rehabilitation. He pointed out that page
44, line 19, says the court shall consider the seriousness of the
minor's delinquent act, the minor's culpability, the age of the
minor, the minor's prior criminal or juvenile record, the ability
of the minor's parent, guardian or custodian to control and
supervise the minor, the success or failure of the minor's previous
dispositions or placements and that detention is an appropriate
consequence for a minor. He reiterated the code has been separated
and these kids are being dealt with differently. That limited
criteria that was set out in statute was probably sufficient for a
child in need of aid, but it didn't work when dealing with a
delinquent child. Now that the two have been separated, the
delinquent child can be dealt with a little differently than when
they were combined.
CO-CHAIR TOOHEY asked why CSSSHB 387 hadn't been redrafted.
REPRESENTATIVE KELLY responded it was a matter of timing. He added
that he and his staff have been working with the Departments of
Health & Social Services, Law and Public Safety on the various
drafts.
CO-CHAIR TOOHEY asked how long Representative Kelly anticipated it
would take to have it redrafted.
REPRESENTATIVE KELLY said roughly four days.
Number 1913
REPRESENTATIVE KELLY continued his sectional analysis. He said
restitution is addressed on page 47 and has to do with civil
judgment enforceable by execution. For example, if a child has
restitution that is due to a victim, currently, on his 19th
birthday he is no longer liable. Under this legislation, the
victim can then file in civil court to get that restitution.
Representative Kelly said the language up to page 52 is technical
and is mostly existing code and pointed out another reference to
the child support in the highlighted area.
At this point, there was some discussion whether this area should
be highlighted in blue, yellow or highlighted at all.
MR. CAMPBELL interjected that language on lines 21 and 22 "Unless
the support obligation is calculated under Rule 903(i) of the
Alaska Rules of Civil Procedure," should be highlighted in yellow
indicating a new portion and "the sum required to be paid must be
based on the fee schedules adopted under AS 44.29.022." should be
highlighted in blue, indicating it is being deleted.
REPRESENTATIVE KELLY said there is an amendment to that effect. He
referred to page 56, line 29, and said there is an amendment which
deletes "under AS 12.25.180 to a minor, except that the citation
shall be" and inserts ", on a form provided by the department". He
said that represented some constitutional problems in that it
bumped these kids into district court if they did not comply with
the citation. He added that under district court a person doesn't
have a right to a jury trial, making the whole community service
citation process unconstitutional, so the reference to AS 47.12.430
was retained which keeps it in the superior court.
Number 2031
REPRESENTATIVE KELLY noted the Action on Community Service Citation
was addressed on page 57 and the schedule was laid out beginning on
page 58. The schedule has a specific number of hours that a minor
will be charged for the various violations. He added there is an
amendment which deletes the reference to AS 47.12.320 on page 58,
line 30. With regard to the Community Intervention Courts on page
61, he said the scope of this court is much the same as the youth
courts, which were created about three years ago. He added it is
a diversionary court, its scope will be the performance of
community service, to make suitable restitution and to obtain
counselling or treatment under the circumstances described in the
citation process for the community service citation process. This
community service citation not only has a number of hours attached
to it, it also has a number of points attached to it. An
individual who reaches 24 points goes before the community court.
Representative Kelly explained the community service citation is
not only being used as punishment, it is also being used as a gauge
for kids that may have a problem. For example, if a kid
accumulates a number of points for lesser crimes, it is reasonable
at that point to believe there is a problem with the family and
they need to be brought into the community court and discuss
possible counseling or other treatment. The counseling and
treatment are described on page 63 and it states that a community
intervention court may require a minor to obtain and engage in
counseling or treatment if it has come to their attention through
the citation process that it is necessary.
Number 2145
REPRESENTATIVE KELLY pointed out that community service
administrators are discussed on page 64 and added that community
service doesn't work at all unless there is someone to take care of
the hours, make sure the people get there on time and that
community service has been successfully completed. Page 65
indicates that fee schedules may be established to help defray the
costs of a community service administrator. The rest of the
highlighted areas on pages 66 and 67 are technical and are back-up
to some of the earlier provisions.
CO-CHAIR TOOHEY requested that Representative Kelly have a new
draft available for the next meeting. She asked if there was any
specific area that should be discussed at this point.
Number 2226
REPRESENTATIVE BRICE suggested discussing some of the areas that
are were highlighted.
CO-CHAIR TOOHEY commented that she was not comfortable discussing
any changes without the entire committee in attendance.
Number 2252
REPRESENTATIVE DAVIS asked Representative Kelly what the
distinction is between the youth courts and the community
intervention courts.
REPRESENTATIVE KELLY responded that the youth court and the
community intervention court are very similar. The feeling was the
youth courts which were created just a few years ago may not be
appropriate for all communities. Rather than amend or do anything
to the youth court as it currently exists, Representative Kelly
thought it would be a better idea to create the community court
which is tied to the community service citations in a way that the
youth court is not. He explained the point systems are in the
community service citations and it brings to the attention of the
community court, a youth who has a problem that needs more than
just a citation. To deal with the problem, the youth needs to come
before adults who can review what is going on and recommend
restitution, community service or possibly some counseling. He
believed that was the greatest difference between the two. It is
his belief the community court will work better in rural Alaska
where the elders of the village can be depended upon, particularly
with that culture.
REPRESENTATIVE DAVIS clarified that it was for the same type of
offenses that go to youth court but it was just that this structure
may be more applicable in rural areas.
REPRESENTATIVE KELLY replied yes, it was a diversionary court for
lower level offenses.
REPRESENTATIVE DAVIS asked if everybody who is given a citation has
to report to a court or is it after a certain number of points have
accumulated.
REPRESENTATIVE KELLY said it would be after an individual had built
up a certain number of points. It's also there to be used by the
Division of Family and Youth Services for kids who are coming into
their scope of duties.
TAPE 96-14, SIDE B
Number 001
REPRESENTATIVE KELLY continued that DFYS can use this court to deal
with the lower level crimes. The problem is the division deals
with some pretty horrendous crimes in their daily course of
business, so when a kid comes to them for shoplifting a couple
times, he ends up being pretty low on their priority list. The
community court concept lays some of the responsibility down into
the community, not just through a state agency.
REPRESENTATIVE DAVIS asked if the fiscal notes referred to the work
draft or the original bill.
MR. CAMPBELL responded there have been many, many work drafts and
the fiscal notes refer to any or several different versions.
REPRESENTATIVE DAVIS said he thought there might be a fiscal impact
with the community intervention courts.
REPRESENTATIVE KELLY stated he thought there would be a fiscal
impact and that is why the legislation makes reference to charging
fees, etc. His original intent was that these could be paid for
with community service matching grants in communities that get
them. He pointed out that it is an optional program; the community
doesn't have to do this if they don't want to.
Number 098
REPRESENTATIVE BRICE asked Representative Kelly to explain Rule
90.3(i) as it pertains to child support.
REPRESENTATIVE KELLY said it refers to state custody, but he would
feel more comfortable having the Department of Law address that
particular question inasmuch as it was their request.
REPRESENTATIVE BRICE referred to page 23, line 29, and said it was
his understanding this section was to increase the level of
suspicion needed for a policeman to report abuse and that change
had been requested by the Department of Law. He asked if that was
correct.
REPRESENTATIVE KELLY responded yes, it does raise the level of
suspicion; it changes the standards slightly.
Number 140
CO-CHAIR TOOHEY said at this time the committee was willing to take
testimony or even some broad statements regarding the legislation.
Number 226
YVONNE CHASE, Deputy Commissioner, Department of Health & Social
Services and Member, Executive Committee, Governor's Conference on
Youth & Justice, said she had mentioned the Governor's Conference
on Youth & Justice for two reasons: (1) a number of the issues the
conference is addressing are also being addressed in Representative
Kelly's bill; and (2) seven members of the legislature, including
Representative Kelly, are members of that conference and are
grappling with many of the same issues. She said they are
currently in the middle of the process, which is a very detailed
process, and they hope to have some very specific recommendations.
She didn't believe that anyone would disagree with splitting the
code into a children in need of aid section and a delinquency
section. The Department of Health & Social Services feels this
bill represents both a good first effort as well as a major
undertaking. The department has appreciated the opportunity to
provide input in the drafting and Representative Kelly's
willingness to address some of the concerns raised by the
department. Ms. Chase said she wasn't going to discuss the
specifics of the legislation, but wanted to make some over-arching
comments.
Number 265
MS. CHASE said assuming the amendments offered by Representative
Kelly for deletions are accepted, she would not address the
conceptual areas of those. With regards to the remainder of the
bill there were some areas she wanted to address, both in terms of
conceptual agreement and a couple of areas where the department and
Representative Kelly have agreed to disagree. First, the concept
of community involvement and ownership is one the department
recognizes the importance of in terms of the reduction of juvenile
crime. She thought CSSSHB 387 addressed the formation of community
courts as well as the continuation of youth courts. The
procedures, however, for establishing that level of community
oversight is an issue she thought the Department of Law needed to
address as there may some problems with the language. With regard
to the youth courts, she gave an example of the "Making The
Difference" project which just began in Anchorage and said she
thought it will be very effective; it's a diversionary effort. She
said one of the things to keep in mind with the youth court
however, is the juveniles come into the Division of Family & Youth
Services (DFYS) System and are diverted out of that. At this point
it is not clear in the drafting of the bill how the community court
will work in terms of "if it's a diversion back out from the formal
system and the difference being that it's a different kind of court
in that it's an adult seated there as opposed to youth or if the
process in terms of how the citations might work and if the youth
refuses to or is unwilling or unable, or claims to be unable, to
complete the community service, how that individual then moves from
one system to the other." She said those may be some issues Judge
Hitchcock would like to address. She felt the issue of how the
procedural safeguards are put in place was important and also to
have a process that if, in fact, the community influence on a
particular youth isn't effective, the formal system would be able
to look back and capture that information to help them in the
decision making process when the youth came into the formal system.
Number 366
MS. CHASE said she knew that work was still being done on the
juvenile sex offender section, but it was another area the
department had a number of concerns in terms of the juvenile sex
offenders who have not been rehabilitated. She had a problem with
the word "rehabilitated" in that she once looked it up in the
dictionary and it means "bringing one back to one's former state."
Some of the issues that Representative Kelly's office has been
working with include how to draft language that provides a fair
process, and treats all juveniles in that category in the same
manner. Also, there is the issue of how to determine if a juvenile
is rehabilitated; what is the measurement for outcome. She
commented that in the adult arena usually the measurement for
outcome is recidivism. She concluded those were some issues to
grapple with in terms of the conceptual basis. There was agreement
that this whole area needed to be looked at with regard to the
wording and some of the legal issues.
CO-CHAIR TOOHEY asked if Ms. Case had the recidivism rate on youth.
MS. CHASE indicated she didn't know exactly, but said it wasn't
good.
Number 444
REPRESENTATIVE BRICE asked if status offenses were included in the
sex offenses or if it was even applicable.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, said she didn't believe it was applicable. She
explained that a status offense is an offense by virtue of the fact
that an individual is a youth.
REPRESENTATIVE BRICE asked if there were any sex crimes that were
status offenses for juveniles.
MS. CARPENETI responded to her knowledge, there were not.
CO-CHAIR TOOHEY asked how they were classified.
REPRESENTATIVE BRICE gave the example of a 17-year-old who had sex
with a 14-year-old and asked if that was legal.
CO-CHAIR TOOHEY responded that would be okay because of the three
year difference in age.
MS. CARPENETI said that would be considered a status offense in the
sense that because he was 17, it would be....
REPRESENTATIVE BRICE interjected that it wouldn't be a sex offense.
MS. CARPENETI said yes, it would be a sex offense.
REPRESENTATIVE BRICE questioned if there was a need to break out
sex offenses from status sex offenses.
MS. CARPENETI said not to her knowledge, but she would like to have
an opportunity to research the law and get back to the committee.
She added she thought what was being talked about was charging
juveniles with sex offenses that are against the law for everybody.
REPRESENTATIVE BRICE added regardless of the status.
MS. CARPENETI responded that was correct.
MS. CHASE noted that a status offense for a juvenile is an offense
which if committed as an adult would not be a crime. Status
offenses are talked about in the sense of running away....
REPRESENTATIVE BRICE interjected that a sexual offense wouldn't be
considered a status offense, then.
NOTE: There seemed to be some confusion on this question, and a
direct response was not discernible.
Number 565
MS. CHASE said there were two areas in particular where there is
not conceptual agreement. She referred to Section 53, page 27,
lines 25-32, and said the department feels a privatized system
already exists with the nonprofit agencies across the state who
really represent the residential arm of the system. She added they
are community-based with boards of directors, and by the very
nature of their structure, they have community ownership and
accountability. The department felt the nonprofits could be
responsive to expanding needs, if it's appropriate and the
resources are available to do it. The second area deals with the
definition of delinquent. She referenced page 33, line 5-9, which
states "....as a result of (1) violating a criminal law of the
state or municipality of the state; or (2) the minor engaging in
conduct that is a noncriminal offense punishable as a violation
under AS 47.12.300 - 47.12.320" and said the definition of
delinquent then would include the minor engaging in conduct that is
a noncriminal offense; basically, what she had just mentioned in
terms of a status offense. While later sections of this bill do
not include mandatory jail time for these offenses, the fact that
a youth would be considered technically delinquent may mean that
someone has the authority to lock up a status offender, who would
now be considered delinquent.
Number 690
JANINE REEP, Assistant Attorney General, Civil Division, Department
of Law, explained that the Attorney General's Office had tried to
divide this up between the Criminal Division and the Civil
Division, and because things were constantly changing she had
thought that Ms. Carpeneti was going to address this area. She
added that it didn't really make sense to her right now; those two
definitions are exclusive of each other, so it doesn't make sense
that one is criminal and the other is noncriminal. But it's a
delinquent and a delinquent is supposed to be a minor who has
committed a crime.
Number 740
REPRESENTATIVE KELLY asked where the definition of delinquent comes
from.
MS. REEP asked for clarification - was he asking where it is in
statute or what is its derivation?
REPRESENTATIVE KELLY asked "Aren't we determining what is
delinquent?"
MS. REEP responded perhaps that is what Representative Kelly was
intending to do. However, as far as what's been set forth in
statute, delinquent behavior is defined as what would be a criminal
offense if an adult committed that act. That's why currently
status offenses aren't delinquent offenses or criminal offenses.
As Ms. Chase indicated, if you're an adult and run away, it's not
a crime, so you're not a delinquent. That's what is in existing
statute.
REPRESENTATIVE KELLY said "We're changing the statute. I'm not
sure what your point is. We're changing the statute and you're
saying that because it's not currently in statute that it doesn't
make sense, we just defined it."
MS. CARPENETI said the statutes are being separated; the
delinquents from children in need of aid. She said "But at this
point, I haven't seen a philosophical change like that in this bill
in terms of dealing with children who are status offenders, who
haven't committed crimes (if they were adults) but they are status
offenders and by calling them delinquent, at least in terms of the
tradition, delinquent children are children who have committed
crimes, if they had been an adult." That's the problem. She went
on to say that delinquents are treated differently because they are
children who have been getting in trouble and violating the law and
they are dealt with in a certain way. Children in need of aid are
dealt with not as delinquents. Runaways are children in need of
aid, but by amendment, we are potentially calling them delinquents.
Number 840
REPRESENTATIVE KELLY questioned if children in need of aid were
being called delinquents.
MS. CARPENETI said it's hard to know, the way the bill is drafted
now, because it's been changed and it's a huge bill....
REPRESENTATIVE KELLY interjected that this section has not changed.
He referenced Ms. Carpeneti's comment that we have not
philosophically separated the children in need of aid from
delinquents.
MS. CARPENETI said we have, it has been the department's tradition
to treat them differently. That's why everyone seems to think the
separation of the two into two chapters of Title 47 is a good idea.
REPRESENTATIVE KELLY said, "So now having separated them, we're no
longer talking about children in need of aid; we are defining what
a delinquent child is. This is a new chapter in the code, and
we're saying okay, we've now made the separation - children in need
of aid - we no longer need to muddy the water with what is a child
in need of aid and what is a delinquent child because we've
separated them and here's what a delinquent child is."
MS. CARPENETI referred to page 33, paragraph 2, line 8, and said
she believed one of those provisions is evading placement.
REPRESENTATIVE KELLY responded in the affirmative.
MS. CARPENETI said that is a runaway; it is a person who has run
away from home, it's not a person who has committed shoplifting or
criminal mischief.
REPRESENTATIVE KELLY said based on his discussions with the
Department of Law, he was of the impression that evading placement
was someone who was running away from a shelter or from some type
of a detention facility.
MS. CARPENETI pointed out that doesn't mean they've violated a law.
They are not delinquent in terms of having violated a law that
would make them delinquent.
REPRESENTATIVE KELLY said except that we're creating a statute that
says in fact they are delinquent for having violated that law.
MS. CARPENETI responded the department disagrees with that
philosophy.
REPRESENTATIVE KELLY said the basis for their disagreement was
philosophical, not necessarily legal.
CO-CHAIR TOOHEY asked if it was against the law to run away from
home as a child.
MS. REEP responded no.
REPRESENTATIVE KELLY stated that running away from home under
CSSSHB 387 does not make the child guilty of violating any law.
That's been taken out and will be dealt with in a separate issue.
It does need to be dealt with, but it's not necessarily dealt with
in this bill. Representative Kelly commented that Ms. Carpeneti's
disagreement was purely philosophical, which is fine but he didn't
want the committee to be left with the impression that her
disagreement was necessarily rooted in the constitution or statute.
CO-CHAIR TOOHEY interjected that if it doesn't fit under the
existing laws and the intention is to make new laws, then
representatives from the Department of Law provide the advice as to
whether or not it's done right.
Number 1024
MASTER HITCHCOCK said this is probably a difficult issue to sort
out because whether it's philosophical or legal, the issue he
thinks is can a state enact a law that states running away from
your home or from a shelter is criminal or is punishable in some
fashion. He thought maybe they could, but we need to look at
whether or not we're swimming up stream against what seems to be a
pretty well settled division in this country between criminalizing
delinquent behavior which is violations of the criminal laws and
criminalizing status offense behavior. He said he didn't think
Representative Kelly was trying to criminalize that, but he was
afraid that will be the indirect result; it will become
criminalized because the imposition of community work service,
fines, etc., that are punishable by certain language will
inevitably lead right into the conclusion that it is criminalized.
He didn't think there was anything that prevents a state from
passing a law that running away was against their criminal code.
He added that whether that cuts the state out of certain federal
programs or not is another issue entirely. The state has to define
for itself what the reasonable end to police powers will be. He
didn't have a position on that. He thought the problem was that
runaway was still in two sections in CSSSHB 387. It still has
runaways as child in need of aid individually absent from home, and
it has them as evading lawful custody. So, they could fall into
both sections of the code under CSSSHB 387.
Number 1134
REPRESENTATIVE BRICE asked for someone to tell him when it becomes
a crime as he went through the following hypothetical situation:
Bobby decides to run away. Bobby packs his bags and leaves. Bobby
gets picked up by the police and taken to....
CO-CHAIR TOOHEY asked at what time this scenario was taking place.
REPRESENTATIVE BRICE responded it was after curfew.
CO-CHAIR TOOHEY interjected that's the problem right there.
REPRESENTATIVE BRICE continued his scenario that Bobby gets taken
to a shelter and he leaves the shelter. He questioned at what
point is Bobby breaking the law under CSSSHB 387.
REPRESENTATIVE KELLY responded when he leaves the shelter.
REPRESENTATIVE BRICE verified it was when he left the shelter, not
when he left home.
REPRESENTATIVE KELLY said that was the evading placement issue.
That was the intention behind evading placement.
Number 1205
MASTER HITCHCOCK referred to page 55, lines 16-17, which states,
"(2) refuse to accept available care provided by the person's
parent or guardian; or" and asked if that was (indisc.). Is it
just saying that if the child leaves the shelter or a placement?
The point Master Hitchcock wanted to make in response to the
hypothetical situation was that this is exactly what happens in the
federal regulations that deal with the institutionalization of
minors. He described a situation whereby the federal government
said if Johnny comes before me as a child in need of aid, I place
him in a shelter; tell him he's placed in a shelter and that he's
under state custody and is not to leave that shelter. If he leaves
that shelter, he has violated a court order. That's what is called
the valid court order amendment to the institutionalization mandate
and that is basically what is written into AS 47.10.141. A
revision of 141 done about four years ago makes it clear that we
can issue an arrest warrant for a runaway, who runs away from the
shelter placement ordered by the court, whose circumstances are
critical or above and beyond that of the normal runaway, but only
under those limited conditions. He made reference to community
work service being imposed on a child for running away from home
and said that is starting to recriminalize through status offense
behavior.
Number 1338
MS. REEP commented on the issue of a child being habitually absent
or refusing to accept available care being included in both the
delinquency section and the child in need of aid section. When she
first looked at the bill, it was deleted from the child in need of
aid definition. Her view which she shared with Representative
Kelly is that it's actually a very helpful component of the child
in need of aid definition. She explained that many people across
the state probably feel that the DFYS doesn't do much for them when
their kids are running away and DFYS can't help the parents. That
may be true in many cases. However, for those cases where a family
is doing all they can, and the child is running away or won't go
home, this gives the DFYS a chance to go in and take custody,
provide services and find an out-of-home placement, which can be
really helpful. That child may not fit another child in need of
aid definition such as abuse or neglect. She thinks this is
different from other states like California for example where this
is not offered to parents and if the kids leave or the parents
can't do a thing with them, the state basically says that's life.
She commented it is a good tool for Alaska, but she doesn't know
how to resolve the issue of which section to include it in, but as
a representative of the Department of Law she felt it was important
for the child in need of aid statutes.
Number 1443
MS. CARPENETI asked to express some comments on behalf of the
Criminal Division of the Department of Law. She said this bill is
a major undertaking and she has great admiration for the sponsor
and his staff for undertaking it. She thinks it may be too big in
this context to do. She explained the Criminal Division has gotten
several drafts, and she feels everyone has worked in good faith to
assimilate the various drafts and figure out how each draft differs
from the previous one and present law. She admitted she had not
read the amendments that she received that morning and said when
she discusses this bill, it is difficult to discuss it with any
authority whatsoever because it's complex, it's a big bill and it's
hard to digest in the time frame they've had to work with it. She
commented there was never any detailed discussion on the community
court in their work groups because it was at the end of the bill
and they always spent so much time on the materials before it.
MS. CARPENETI noted that the goal of children in need of aid from
delinquent children is a goal that people seem to think is a good
idea. She doesn't disagree with that, but said that in itself is
a difficult task. For example, in reviewing CSSSHB 387 it was
determined that at this point, it was not perfectly done and will
take additional work. She referenced page 12, line 19, which says
that counseling provided to the minor must include the minor's
family or guardian and said she didn't know why that was mandatory
language. She felt there were circumstances where it is good to
include family counseling, but there are also situations that
aren't and she didn't see any particular reason why it should be
mandatory. With reference to page 55, she echoed the comments of
Master Hitchcock. She said these are being referred to as
noncriminal offenses, but the possibility of community and fines
are being provided for. Everybody agrees that runaways are a big
problem in the state but when we're sending them to a community
court and setting up schedules for community service, down the line
it will be getting to the point where they are being treated as
criminal offenses. She pointed out the Court of Appeals recently
held that an imposition of community service is an indication of a
criminal. The Department of Law does not agree with the waiver
this legislation allows of certain additional misdemeanors; e.g.,
concealment of merchandise, criminal mischief and disorderly
conduct from current treatment in juvenile court to community
courts or whatever. The reason the department opposes it is
because the juvenile justice system has always been a more holistic
system in terms of treating the child as he/she progresses. The
power to deal with a person in a more whole way is diluted when
some offenses are split off to another court.
Number 1724
MS. CARPENETI said she disagreed with the sponsor regarding the
community courts. She thinks there are problems with it. First,
she thinks there is a constitutional problem; Article 4, Section 1
of the Alaska Constitution provides for a unified court system and
the court system differs from youth courts in the fact that a level
of a court is being created that not only is dictated by statute,
but is also dictated by municipal ordinance. For example, page 61,
line 19, says that a community intervention court may exercise only
those powers that are required of it by this section and the powers
that are set out in the ordinance establishing it. She feels this
is fundamentally different from the youth courts which are treated
as more of a diversion by the DFYS and her understanding is they
are very helpful. CSSSHB 387 creates courts that are created by
ordinance and the ordinance under the bill are empowered to give
this court power. She thinks it creates lots of different problems
that haven't been thoroughly thought out. For example, if there
are community courts in one community which treat certain offenses
in a certain way and then you have community courts in another
community, and they treat state offenses in another manner, she
thought that could raise equal protection problems. The bill does
provide that the ordinance must provide for protection of
constitutional rights, but there needs to be some thought given to
how much direction they need to have.
Number 1864
MASTER HITCHCOCK agreed with many of the comments that were made.
He added that we need to begin to do something about the minor
offenders and the runaways. He said he is actually more concerned
about the minor offenders in some ways, and it is his belief they
should stay with the juvenile court, if the juvenile court can be
empowered to do something a little more speedy and a little more
up-front. The idea of swift, sure and accountability sanctions and
the like are things that really need to begin to be built into the
juvenile code. He doesn't think it can be done by citationable
offenses because you begin running the risk of flirting with
criminality. He pointed out that his remarks are his own personal
views; he is not in any way representing an official position of
any kind from the Alaska Court System.
Number 1960
PAUL WORMAN testified via teleconference from Fairbanks that he had
talked with Representative Kelly several times about the danger of
untreated sex offenders. He pointed out that currently if a minor
refuses treatment, he could go to work at a day care center or a
school at the age of 19 and nothing would be found with a
background check. He referred to page 27, lines 26-32, regarding
authority to maintain and operate a home, work camp, or facility
and said the insertion of corporation is a good idea. Right now it
is limited to nonprofit corporations. By allowing for profit
corporations, other companies can come in and do the same thing as
nonprofits and provide a better service.
Number 2051
CO-CHAIR TOOHEY agreed that the issue of whether the records of a
minor sex offender are sealed or not is indeed a concern.
TAPE 96-15, SIDE A
Number 004
CARL ROSE, Executive Director, Association of Alaska School Boards,
asked if he was addressing the amendments or speaking to the CSSSHB
387.
CO-CHAIR TOOHEY responded it was the Committee Substitute, Work
Draft O.
MR. ROSE said his comments were directed to the issue of truancy.
He said the current law brings the school board into the process at
the point of reporting. He thought everyone would agree that
elected officials in the capacity as school board were to provide
oversight to the district. Current law brings the school board
into the process from the very start. The amendment allows the
governing body of the Rural Education Attendance Area (REAA), the
school district and the chief school administrator of private or
federal schools to establish procedures and consequences to prevent
and reduce truancy. He thought that was the appropriate measure to
take and the appropriate role for the school board. In that
context, he offered his support on this legislation as it relates
to truancy.
REPRESENTATIVE DAVIS addressed the legal versus philosophical issue
that had been raised. He said it appears there was a system in
place many years ago which has been improved on through the years,
through new laws and a new bureaucracy. This legislation is making
changes to that system. It's hard to identify all the
intermingling of the existing statutes and laws because it's
convoluted and it's a major change. He noted that Representative
Kelly is proposing a drastic change in the whole system and it's
difficult to mesh it with the current statutes.
Number 285
MS. CARPENETI said she personally believes that Title 47 is a
difficult, complex area of the law and that people understand it is
in need of a revision. The sponsor has worked hard to revise it
and the Department of Law has worked hard to respond to the various
drafts. She added it is a very big subject and some of the
proposed changes really concern her. She explained that some of
the things suggested in the work sessions perhaps need more thought
in terms of the effects of what is being proposed and how it fits
into the whole picture for juveniles. She commented the Department
of Law does not have a problem breaking apart the children in need
of aid section from the delinquency section, but with the current
statutes, it is a difficult job. This legislation has not done it
well and requires more work.
Number 433
REPRESENTATIVE KELLY thought that a stone had been thrown in the
pond and the departments are having a difficult time dealing with
it. It's not that they are resisting, it's just difficult to deal
with. He said most of their differences have been on philosophy,
not necessarily on the specific legal ramifications. Representative
Kelly said the changes suggested by the Department of Law have been
incorporated, but the problem is on the philosophical changes. He
agreed it was the role of representatives from the Department of
Law to point out the legal problems, but added that the legislature
makes the philosophical and policy changes. The Department of Law
can comment on those, but it is not their decision to make. He
felt many of the department's comments were policy and
philosophical in nature and he didn't want members to think the
bill was wrought with legal problems.
CO-CHAIR TOOHEY said the law comes first; if the law and the
constitution say it is wrong, philosophy doesn't make any
difference. She added, "If we don't like that, then we need to
change the constitution."
REPRESENTATIVE KELLY agreed with Co-Chair Toohey's comments
regarding the constitution, but he added the legislature makes the
laws, and that was the area he was addressing. If there are
constitutional problems, then he has no problem making the change.
MS. CARPENETI commented the problem with calling a person a
delinquent who is a status offender has legal problems in addition
to philosophical problems. She said historically, it's not the way
the department has done it and it has legal problems that need to
be considered; it's not her personally or the department voicing
disagreement on the philosophy of doing that. It's more than
philosophy, it's the law, too.
REPRESENTATIVE KELLY reaffirmed that he is open to those kinds of
changes.
ADJOURNMENT
CO-CHAIR TOOHEY thanked everyone for their testimony and adjourned
the meeting of the House HESS Committee at 4:55 p.m.
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