HOUSE BILL NO. 255 "An Act relating to dual sentencing of certain juvenile offenders; amending Rule 24.1, Alaska Delinquency Rules; and providing for an effective date." 2:52:48 PM Representative Craig Johnson presented an overview of HB 255 that would allow a judge to simultaneously sentence a juvenile to both a juvenile and an adult sentence. Representative Johnson explained that if a juvenile successfully completes the juvenile program they will be finished, but if the juvenile fails to satisfactorily complete the program or to reoffend, the juvenile can be subjected to an adult sentence. He related that this bill began as a commitment to his constituents to address gang violence. Representative Johnson believed a juvenile should be aware that the consequences of not complying could mean adult prison time. 2:55:52 PM Representative Joule remarked that some juveniles, who have committed egregious acts, have been tried as adults. He wondered why this bill was necessary if that is an option. Representative Johnson replied that a juvenile, tried as adult, is still an available option of the court, but this bill would cover crimes that may not automatically rise to that higher level of sentencing. This bill would give the prosecutor an opportunity to ask for the duel sentence for those cases where the juvenile would start in the juvenile system but, if the rehabilitation failed, the juvenile would end up in the adult prison. 2:57:45 PM Co-Chair Chenault asked if fifteen was the correct number of states currently practicing duel sentencing and requested any statistics from those states. Representative Johnson concurred that fifteen states have this program and referred the statistic question to juvenile experts who were available to testify. 2:58:55 PM Representative Gara voiced his concern on the felony classes subject to the duel sentencing. Representative Johnson replied Class B and Class C felonies. Representative Gara questioned if that was all Class B and C felonies. 2:59:30 PM ANTHONY NEWMAN, DIVISION OF JUVENILE JUSTICE, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, replied that this bill would extend duel sentencing to Class B felonies against persons, as well as, misconduct involving weapons in the first and second degree, and arson in the second degree. Representative Gara requested clarification on the sentencing process if a minor commits a violation. He wondered if the state would have the discretion to request the court to sentence the juvenile as an adult. Mr. Newman clarified that the Department of Health & Social Services would request the court impose the adult sentence that had previously been pronounced. Representative Gara reasoned that sometimes personality differences occur between the juveniles and their counselors and wondered what would prevent a counselor from imposing an adult sentence on a juvenile they did not like. He wondered if Representative Johnson would be comfortable with a Letter of Intent accompanying the bill declaring that it is not the intent for insubstantial violations would result in request for adult sentencing. 3:01:08 PM Representative Johnson answered that he would have not problem with a Letter of Intent but stressed that the department would prefer keeping the juvenile in the juvenile system rather than moving them into the adult prison. Representative Johnson informed the committee that, before any final decision was made, there would be a hearing with a third party judge, avoiding personality conflict problems. 3:02:17 PM Representative Gara questioned if a juvenile commits a probation violation would that be grounds for imposing the adult sentence, if the judge and hearing officer agreed. Mr. Newman replied that an earlier version of the bill included probation violation as a condition to be transferred to the adult system, but it is not included in this version of the bill. Representative Gara wondered what would trigger the transfer. Mr. Newman replied that for a transfer to occur the juvenile would have to commit a felony or misdemeanor crime, fail to obey the terms of a restitution order, escape from a juvenile correctional facility, or fail to engage in the rehabilitation program. Representative Gara wondered if it was substantial and unsubstantial to be late in a restitution payment or to violate a minor infraction in rehabilitation. He questioned if the judge had standards to follow or was anything written in the bill declaring that the adult sentence can not be imposed for an insubstantial sentence. 3:04:23 PM Mr. Newman maintained that conditions must indicate the juvenile is no longer amenable to treatment in the juvenile system. Representative Gara inquired if the juvenile commits one of those infractions would the juvenile be considered no longer amenable to treatment. He requested clarification on the findings the judge has to make before imposing the adult sentence. Mr. Newman responded that the judge has to find a preponderance of evidence. This would include the occurrence of a felony, a misdemeanor involving an injury, the use of deadly weapon, the juveniles failure to engage in or satisfactorily complete a juvenile rehabilitation program, or the juveniles failure to complete the terms of a restitution order. 3:06:26 PM Representative Gara questioned the judge's guidance in determining if a late restitution payment should result in imposing the adult sentence. Mr. Newman responded that it would have to be a preponderance of evidence. 3:07:10 PM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, referenced current law, AS 4712 170E that states if a youth is charged with the commission of a felony against a person or arson, and the court makes that finding by a preponderance of evidence then the adult sentence is automatically imposed. She elaborated that if a juvenile failed in any of the other ways and the department pursued the adult sentence, the juvenile still has the opportunity to prove that they are amenable to treatment and should continue under the juvenile system. Representative Gara questioned if that becomes the standard for the other violations. Ms. Carpeneti agreed with the exception of a felony against a person or arson. 3:08:31 PM Co-Chair Chenault asked Representative Johnson earlier about any results from the states already using this blended system and asked again if anyone could answer that question. Mr. Newman indicated that the department has consulted with national experts on duel sentencing, but being a new system, it has not been thoroughly studied. He remarked that fifteen states have duel or blended structuring in place, but the programs vary according to the statutes in each state. He revealed that Alaska has narrow and rigid criteria under which duel sentencing is currently being applied. This bill would relax the criteria to put it more in line with the process in the other fifteen states. 3:10:45 PM Co-Chair Chenault questioned if this bill would make it easier or harder for the court system in Alaska to use a blended system. Ms. Carpeneti replied that historically it has been difficult to get juveniles waived on a discretionary basis. She revealed that in the late 90s the Legislature adopted a mandatory waiver for very serious offences involving sixteen or seventeen year olds. The purpose of the duel system is to apply stiffer penalties such as the possible enforcement of an adult sentence on a sixteen or seventeen year old who commit serious crimes. Ms. Carpeneti believed this presents the juvenile with a good reason to cooperate. Ms. Carpeneti signified that the juvenile has to be aware that there can be consequences for not accepting what the juvenile system has to offer. 3:12:46 PM CHRIS PROVOST, OFFICE OF PUBLIC ADVOCACY, ANCHORAGE (Testified via teleconference), remarked that he has been authorized by the Anchorage Office of Public Advocacy to comment. He thanked the bill's sponsor for the improvements made from the original proposal. He voiced the Office of Public Advocacy concern about incarcerating a minor in an adult facility before the final decision was made. The Office of Public Advocacy believed it would be better for the juvenile to remain in the juvenile correctional system. 3:15:52 PM Mr. Provost responded to the previous question regarding result studies from other states. He mentioned that Florida is the only state to have completed a thorough study and the program has not worked out well for public safety or for the juveniles. He added that Florida's bill is harsher than the one before the committee. 3:17:09 PM Representative Kelly questioned how this bill targets gang behavior. Representative Johnson recalled that his original concept was to put gang members, no matter their age, in jail but this approach was changed. He explained that if a young gang member commits a serious offense, they would automatically be released when they became an adult. This bill shows the juvenile that any serious offense can now translate into real jail time. Representative Johnson believed this would take the "hero status" from a young gang member and give them the opportunity to make a life decision of getting with the program or doing hard time. 3:20:07 PM Co-Chair Meyer MOVED to ADOPT Amendment 1: Page 3, lines 28-31: Delete all material and insert: "(4) if (A) petition has been filed under AS 47.12.160(d) to impose an adult sentence; (B) a court, at a hearing held within 48 hours of the filing of the petition, finds that there is probable cause to support the allegations in the petition; and (C) the department transfers custody of the minor to the Department of Corrections pending the resolution of the petition." Co-Chair Chenault OBJECTED for discussion purposes. Representative Johnson pointed out that this amendment provides for a hearing, within forty eight hours, before the juvenile enters an adult prison. It would also provide for the transfer of custody to the Department of Corrections. Representative Johnson maintained that leaving someone in the juvenile facility can result in a disruptive "hero status." Representative Kelly asked if the amendment addressed into which facility the juvenile would be moved. 3:22:22 PM Representative Johnson replied it would be the "big house." He illustrated the three levels at the Department of Corrections facility for placing juveniles: total isolation; placed with other juveniles; or an area out of the general population. Co-Chair Chenault WITHDREW his OBJECTION. There being NO Objection, Amendment 1 was adopted. 3:23:33 PM Co-Chair Chenault commented that all the fiscal notes reflected a zero cost. He questioned if this bill increased or decreased the number of juveniles. Representative Johnson replied there were some indeterminate numbers reflected in the fiscal notes. He expected an impact, but was unable to determine exactly how much at this time. 3:24:30 PM Mr. Newman remarked that the Divisions of Juvenile Justice estimated that approximately ten to twenty juveniles a year would be recommended for duel sentences. He expressed the hope that most juveniles would not refuse to participate in the rehabilitation or commit further offences. Co-Chair Chenault remarked that one of the fiscal notes states, "Under duel sentencing if the minor unsuccessfully completes their sentence in the juvenile system they will be placed on adult felony probation under DOC supervision." Representative Johnson replied this addressed the older version of the bill which states they will remain under juvenile probation. He stated that the fiscal note is not accurate. (Department of Corrections, 3/3/08) 3:27:28 PM Co-Chair Chenault MOVED TO REPORT CSHB 255 (FIN) out of committee with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 255 (FIN) was REPORTED out of Committee with a "do pass" recommendation and new fiscal notes by the Department of Corrections, the Department of Administration, the Alaska Court System, the Department of Health and Social Services and a previously published fiscal note from the Department of Law. 3:29:08 PM