SENATE BILL NO. 54 "An Act relating to violations of laws by juveniles; and providing for an effective date." Co-Chair Larson observed that HCS CSSB 54 (JUD) had been assigned to a subcommittee consisting of Representative Hanley as Chair and Representatives MacLean, Hoffman, Parnell and Brown. Representative Hanley noted that members were provided with a committee substitute for SB 54, work draft 8-LS0384\N, dated 2/3/94 (copy on file). He compared the work draft to HCS CSSB 54 (JUD). He noted that the work draft on page 1, line 11 deleted "unless the record is, by law, a public record;" and inserted "unless disclosure is authorized by law". Representative Hanley observed that page 2, line 25 of the work draft added a new mitigator, that the defendant was a minor when charged. Representative Hanley referred to changes made on page 5, lines 20-26 of the work draft. He explained that unless the minor is convicted of murder in the first degree, attempted murder in the first degree or murder in the second degree, the defendant is not automatically waived if they prove they are amenable to treatment. Representative Hanley added that page 6, line 7 of the work draft clarifies that minors taken into custody can be informally disposed of by the court. Representative Hanley noted that on page 8, line 19 of the work draft "treatment facility" was added as a potential placement of juveniles. 2 Representative Hanley stated that page 10, line 9 - page 13, line 6 of the work draft pertains to public records. He explained that the public records portion of the previous version was separated into two sections, Department of Health and Social Services and court records. Language contained in HCS CSSB 54 (JUD) pertaining to public records which threatened the loss of federal funding was removed. Representative Hanley MOVED to ADOPT work draft 8-LS0384\N, dated 2/3/94 (copy on file). There being NO OBJECTION, it was so ordered. RALPH SAMUELS, ANCHORAGE testified in support of HCS CSSB 54 (FIN). He told the Committee that his brother was killed in his home by a juvenile committing a robbery. He stressed that the crime was committed five years ago and that the defendant was apprehended two days after the crime. The juvenile involved confessed to the crime but the waiver hearing has not been resolved. He emphasized that, although the juvenile has confessed and was found with the deceased's car, the waiver may be denied because the confession was not taken in the presence of the juvenile's parents. The juvenile waived the right to have his parents present. Mr. Samuels provided members with articles regarding juvenile offenders (copy on file). JODY ENGLESON, JUNEAU YOUTH SERVICES expressed concern that the problem of juvenile violence is being addressed in a piece meal fashion. She suggested that a task force by created to address the problem of juvenile crime. She emphasized the need for prevention and early intervention. She asserted that the legislation would have a greater effect on minorities. She maintained that incarceration as an adult would have adverse affects on minors. She felt that chances for rehabilitation are better in juvenile correction facilities. She asserted that juveniles caught carrying guns are not penalized. She emphasized that juveniles must learn that their actions will result in adverse consequences before the crimes committed become serious. Representative Martin expressed concern that violent juvenile offenders are having detrimental affects on younger or less violent offenders while being housed in juvenile correctional facilities. He asserted that juveniles respond to discipline and guidelines. DEBORAH WING, DIRECTOR, DIVISION OF FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES testified in support of HCS CSSB 54 (FIN). She referred to page 8, 3 line 19. She noted that the additional language, "treatment facilities" would have a fiscal impact on medicaid receipts. Representative Brown pointed out that placement in a treatment facilities would be optional. Ms. Wing noted that under this provision that juveniles could be placed in private treatment facility. KATHERINE TIBBLES, SOCIAL SERVICES PROGRAM OFFICER, DEPARTMENT OF HEALTH AND SOCIAL SERVICES explained that there are a number of juveniles waiting for treatment beds in state facilities. She stated that the Department anticipates pressure from the Public Defender Agency and the Alaska Court System to place juveniles in detention into treatment beds. She stressed that the Department would possibly make placements out of state. Medicaid would only provide approximately 50 percent of the cost. In response to a question by Representative Brown, Ms. Tibbles clarified that federal funding would not be lost as a result of language regarding disclosure of juvenile records. SHERRIE GOLL, ALASKA WOMEN'S LOBBY stated that the Alaska Women's Lobby believes that the current waiver system is working adequately in most cases. She noted that the Alaska Women's Lobby does not object to automatic waivers for serious crimes, such as murder in the first degree. Ms. Goll suggested that a three tier system be created. She questioned if juveniles will receive longer sentences when tried as an adult. She reiterated that juvenile correction facilities have a lesser rate of recidivism than adult correctional facilities. She urged the Committee to consider a planned approach. Ms. Goll noted that the state of Alaska's Supreme Court has found that the state's interest in lightening its burden can not be viewed as justification for subverting the burden of proof. She entreated the Committee to approach the issue of juvenile waivers with "small steps, and not take too major a bite out of the juvenile justice system, without taking a planned overview." Representative Martin emphasized the cost to victims of juvenile crimes. Ms. Goll stressed that additional juvenile offenders in adult facilities could result in the early release of adult prisoners, due to overcrowding in the state's adult correctional facilities. DUANE UDLAND, DEPUTY CHIEF, ANCHORAGE POLICE DEPARTMENT 4 testified via the teleconference network from Anchorage. He stated that the Anchorage Police Department supports the legislation. EDWARD MCNALLY, DISTRICT ATTORNEY, ANCHORAGE, DEPARTMENT OF LAW testified via the teleconference network from Anchorage. (Tape Change, HFC 94-32, Side 1) Mr. McNally urged the Committee to take prompt action on the legislation. He noted that serious crimes committed by juveniles are continuing to occur. Co-Chair Larson read a list of victims of juvenile crimes that could not testify on their behalf. Representative Hanley provided members with AMENDMENT 1, insert on page 5, line 14, "was" and delete "is" after "when a minor who" and add "at the time of offense" after "age". (copy on file). He explained that Amendment 1 would clarify that the age at the time the offense was committed would determine the offender's age for the waiver process. Representative Hanley MOVED to ADOPT AMENDMENT 1. There being NO OBJECTION, it was so ordered. Co-Chair MacLean provided members with AMENDMENT 2 (Attachment 2). She explained that the Amendment would address a potential problem arising from the housing of juvenile offenders in adult facilities. She stated that a child would not be housed with an adult who has committed crimes against minors or who has used minors to commit crimes. Co-Chair MacLean MOVED to ADOPT AMENDMENT 2. DIANE SCHENKER, SPECIAL ASSISTANT, DEPARTMENT OF CORRECTIONS spoke in opposition to Amendment 2. She noted that the Department is concerned with the mandate to separate juveniles who are waived to adult status, due to the lack of space in facilities. She stressed that the Department currently attempts to keep juvenile offenders separate from adult prisoners. She requested that the Department be allowed to keep its flexibility in housing juvenile offenders. She noted that offenders are sometimes housed in gymnasiums. She observed that under the amendment a juvenile female offender could not be housed with an adult female offender that had been convicted of a vehicular homicide involving a small child. She asserted that the adult offender would not represent a particular risk to the juvenile offender. She maintained that although the 5 Department agrees that separation is preferable, they may not have the resources. In response to a question by Representative Hanley, Co-Chair MacLean clarified that the amendment refers to sleeping quarters. Ms. Schenker maintained the Department's objections. She emphasized that only five percent of the state's prison population are in segregated status. She asserted that the Department's fiscal note will be increased as a result of the amendment. She noted that frequent movement through the system makes it difficult to track offender's offenses before temporary placements are made. Representative Parnell MOVED to AMEND Amendment 2, to delete "or in which the offense that was committed by the prisoner for which the prisoner was convicted involved a juvenile as an accomplice." There being NO OBJECTION, it was so ordered. Representative Therriault questioned the wording of "crime against a person". He felt that the wording was too broad. Ms. Schenker stressed that the Department makes good professional judgement in making housing assignments. She emphasized that the offender's behavior is considered. She asserted that categorizing by the crime of conviction is not necessarily the best protection. After conferring with Margot Knuth, Criminal Division, Department of Law and Co-Chair Larson, Co-Chair MacLean MOVED to AMEND AMENDMENT 2 as AMENDED to read: "A juvenile committed to the custody of the commissioner when the juvenile has been convicted as an adult may not be placed in a cell with an adult prisoner convicted of a sexual offense in which the victim of the crime was a juvenile." Ms. Schenker observed that the amendment as amended would allow the Department more flexibility. There being NO OBJECTION, Amendment 2 was AMENDED. There being NO OBJECTION, Amendment 2 was ADOPTED as amended. Representative Brown provided members with AMENDMENT 4 (Amendment 3 was withdrawn) (Attachment 3). She explained that Amendment 4 would limit the burden of proof shift to the most serious crimes. She provided members with charts demonstrating the number of defendants that would be affected (copy on file). Representative Brown pointed out that in juvenile waiver cases the state does not have to prove "beyond a reasonable doubt." The state is only required to present a "preponderance of evidence" that the defendant is not 6 amenable to treatment. She added that the courts have clearly established that a psychological evaluation is not required to satisfy the preponderance of evidence standard. The defendant's history of adjudication, the nature of the offense and the testimony of treatment providers, family and opinions of agency personnel are factors that may be used to support a waiver request. REPRESENTATIVE IRENE NICHOLIA asserted that statistics show that Alaska Natives, other minorities and the poor are more likely to be arrested, convicted and incarcerated than the majority of our population. She stated that incarceration rates of Alaska Natives are approximately 37 percent while they represent 16 percent of the total population. She maintained that 50 percent of all juveniles in detention are minority youth. She stressed that Alaska Natives are three times more likely to be detained than non-Natives. Co-Chair Larson asked if victims of crimes are disproportionately Alaska Natives. Mr. McNally agreed that victims are disproportionately Alaska Natives. He assured members that the legislation will be used to protect Alaska Natives. He asserted that Alaska Native juvenile offenders are not primarily being detained for violent crimes. He noted that alcohol is usually implicated in cases involving Native Alaskans. Representative Brown expressed concern that defendants at the lower end of the economic spectrum will not have the resources to provide psychological evaluations. Representative Grussendorf noted that the status quo will remain for defendants under the age of 16. Representative Brown clarified that murder in the first and second degree and attempted murder will not be affected by the amendment. Juvenile defendants of unclassified and class A felonies against persons would have to demonstrate that they are amendable to treatment if the state seeks a waiver in their case. (Tape Change, HFC 94-33, Side 1) REPRESENTATIVE FRAN ULMER spoke in support of Amendment 3. She noted that property offenses would not be affected by the amendment. She observed that Alaska state prisons are full. She maintained that juveniles tried as adults and housed as adults would not spend much time in jail for nonperson crimes. She emphasized that the time they do spend in prison will have an adverse affect. In response to a question by Representative Hanley, Mr. 7 McNally clarified that the Administration supports the automatic waiver of juveniles who are 16 or older at the time the offense was committed. He stated that the Administration supports the automatic waiver of cases involving charges of: first degree murder, attempted first degree murder, second degree murder, kidnapping, rape (first degree sexual assault), members of a 6 person drug ring, armed robbery, assault causing serious injury (usually with a weapon), attempted kidnapping, attempted rape, and possession of explosives with intent to commit murder or kidnapping. In response to a question by Representative Parnell, Mr. McNally clarified that all unclassified felonies are crimes against a person. He noted that arson of an unoccupied building is a class A felony. MARGOT KNUTH, CRIMINAL DIVISION, DEPARTMENT OF LAW noted that crimes contained in AS 11. 41 are crimes against persons. She noted that drug offenses, property offenses and arson are not included. Property offenses and most drug offenses would be excluded by the amendment. The sale of heroine and cocaine to an individual who is more than three years younger than the defendant would be included. Representative Brown MOVED to ADOPT AMENDMENT 4. Representative Martin OBJECTED. A roll call vote was taken on the motion. IN FAVOR: Brown, Grussendorf, Hanley, Parnell, Therriault, MacLean, Larson OPPOSED: Martin Representatives Hoffman, Navarre and Foster were not present for the vote. The MOTION PASSED (7-1). Representative Brown provided members with AMENDMENT 5 (Attachment 4). She explained that Amendment 5 would allow the court to order remedial education as a part of the sentencing of a waived juvenile. She questioned what opportunities will exist for juveniles in adult facilities to obtain a General Education Diploma. Ms. Schenker stated that the Department of Corrections supports Amendment 5. Ms. Knuth asserted that the amendment would give judges additional options for sentencing. She noted that the amendment would allow greater flexibility for judges. 8 Ms. Schenker noted that the Department of Corrections cannot force offenders to participate in programs other than work programs. Representative Ulmer noted that the Department of Corrections cannot enforce something that the court has not ordered. She observed that nearly 70 percent of those incarcerated in Alaskan prisons have not finished their high school education. She asserted that there is a direct correlation between education and recidivism. Ms. Schenker noted that the Department would like to be able to require remedial education during pretrial status. She suggested that "charged or" be added to convicted. Representative Hanley pointed out that the legislation refers to the court imposing sentence. Ms. Schenker suggested that page two, section 3 of Amendment 5 is redundant. She also suggested the deletion of "required by AS 12.55.057" and the insertion of " ordered by the court in subsection (7) of section 4. Ms. Schenker noted that statutes regarding the revoking of parole if the remedial requirement is ignored, may need to be addressed. Representative Brown spoke in support of the retention of section 3. Representative Hanley MOVED to delete "under As 12.55.057" on page 2, line 1; delete all of section 3 on page 2; and to delete "under AS 12.55.057" on page 2, line 30 and insert "ordered by the court." Co-Chair Larson noted that the drafter would be given the ability to renumber the sections. In response to a statement by Representative Martin regarding the education provision, Ms Knuth clarified that the section states, "if the program is made available to the defendant by the Department of Corrections. There being NO OBJECTION, Amendment 5 was amended. Representative Martin OBJECTED to the adoption of Amendment 5 as Amended. A roll call vote was taken on the motion IN FAVOR: Brown, Grussendorf, Hanley, Parnell, Larson, MacLean OPPOSED: Martin, Therriault Representatives Hoffman, Navarre and Foster were not present for the vote. 9 The MOTION PASSED (6-2). HCS CSSB 54 (FIN) was reported out of Committee with a "do pass" recommendation and with three fiscal impact notes, one by the Department of Health and Social Services, one by the Department of Corrections and one by the Alaska Court System; and with four zero fiscal notes, two by the Department of Administration, one by the Department of Public Safety, and one by the Department of Law. Transmittal of the bill was to be held until 2/15/94 to allow agencies an opportunity to revise their fiscal notes for consideration by the Committee.