HOUSE BILL 6 "An Act amending laws relating to the disclosure of information relating to certain minors." HOUSE CONCURRENT RESOLUTION 4 Relating to records generated and maintained by the Department of Health and Social Services. MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, REPRESENTATIVE FOR THE GOVERNOR'S CHILDREN CABINET, DEPARTMENT OF LAW, informed members that last year the Governor appointed a 90 person task force to look at youth and justice concerns in Alaska. Disclosure of names and information was an important issue addressed at the Conference. The task force divided into three groups focusing on different efforts: 1. Prevention; 2. At-risk youth; and 3. Prosecution of offenders. The Governor's Conference confirmed that a balancing must exist when the State engages in issues of disclosure. That balance rests between the public's interest in safety and the juvenile's ability to be able to overcome their breeches of the law and come "back on track". She suggested how young offender's actions often speak to family pressures. Our present judicial system has a different way in dealing with juveniles as these young people have not reached that "age of reason", where it would be fair to blame them, without including with the entire family system. She agreed that as the offenses become more serious, individual accountability and treatment become more appropriate. The Governor's Conference addressed the tension within the continuum, surmising that when the crime is serious and when the child is closer to adult years, the public's right to be safe out weighs the juvenile's right to confidentiality. The Governor's Conference elaborated that if the crime was a felony against a person and the juvenile was sixteen years of age or older, or if the crime was a second offense, disclosure would be appropriate. Such an approach was addressed in HB 97, the Governor's bill. HB 97 stipulates that juvenile crime is more than a problem of record disclosure. Ms. Knuth recommended that intervention or sanction would be a more appropriate 2 substitute for disclosure, noting that action could be more effective and restorative than disclosure. Disclosure of the name would be appropriate when the offender has been identified as representing a risk of harm to the community. Ms. Knuth continued, the recommendation found by the Governor's Conference would be to address cases where a petition had been filed and then disclose that name. The Governor's Conference never considered disclosure of offenders who were going through the informal adjustment process. In addressing the crimes of juveniles, there are three courses of action: 1. Prevention; 2. Intervention; or 3. Prosecution. The information adjustment would correspond to the intervention process, and would include the entire family. She suggested that public disclosure in that process could interfere with a productive outcome. When the Department of Health and Social Services (DHSS) attended the National Center for Juvenile Justice Conference, they inquired if other states disclosed adjustment information. They did not. Ms. Knuth pointed out that in all fifty states, the adjudication-prosecution aspect was being studied in further depth. Ms. Knuth pointed out that the Department currently is doing a good job with the serious offenders; although, she noted because of lack of financial resources the low end offenders needs are marginally being addressed. She stressed that is area, where intervention programs need to be put in place and funded. Ms. Knuth spoke to the inaccuracy of the statement that police can not access juvenile information records. The Department of Health and Social Services (DHSS), through A.S. 47.12.300, authorizes disclosure of records to all law enforcement officials. She emphasized that it has been difficult to access these records because of a computer interface problem. The systems used by each department is different and they are not compatible. This concern has been addressed in this year's Capital Budget Request (CBR) for funding the update of the interface structure. She stressed that information needs to be accessible. In response to Representative Kelly's query, Ms. Knuth recommended that an incentive could be created during the intervention process if the adjustments were not made 3 public. If disclosure mattered to the family and child, they would be motivated to do everything asked of them during the informal adjustment process. Representative Kelly suggested that current law allows the Department to establish policy. He felt that authority constituted a "bold act", a power he believed should be handled by the Legislature. Ms. Knuth admitted that would be a valuable discussion to have. Cases do exist where no physical harm occurred; those cases are going through the adjustment process with a good possibility of reclaiming the child's integrity while working with the family. In reference to concerns by Committee members, Representative Kelly referenced HB 6, Page 3, Line 6, indicating that language would address concerns of a "joint being possessed". That was his intent. Ms. Knuth replied the language would address a misdemeanor offense, although, would not take care of a situation at school. Ms. Knuth explained that progress has been made to close the time gap that law enforcement officers had complained about in being able to receive information from the Department. She commented that the bill would put the Department in a position of making disclosures to law enforcement officers and to the schools. Co-Chair Therriault asked when a youth would be petitioned. Ms. Knuth responded that they are petitioned at the second burglary. Representative J. Davies outlined a conceptual amendment which would address when disclosure would take place. He admitted, for serious cases, there is a societal benefit from disclosure and at present time, the serious "stuff" does go to petition. He recommended that the bill be restructured so that disclosure only occurs when there is a petition, and then placing policy guides at the preliminary investigation stage. Representative Davies believed that approach could preserve the "carrot" during the informal route. Representative Kelly commented that under that scenario, an employee of the Department would be responsible to determine what constitutes a threat to society, rather than the Legislature determining that action. Co-Chair Hanley questioned if "charge bargaining" existed when not convicted. Ms. Knuth commented that it wasn't clear and was not as "neat" as in the adult system. He asked if the Administration would support the juvenile's name being disclosed if the process had not yet been completed. Ms. Knuth replied that the Conference did not recommend disclosure at that level. She reminded members 4 that the reason for disclosure was for public safety. The bill states that if there was a case and no compliance, then there would be cause for a new case, at which time the name would be disclosed. (Tape Change, HFC 97-50, Side 2). Co-Chair Hanley asked if a repeat offender's name would be disclosed. Ms. Knuth replied that at the Governor's conference, recommendation was for burglary offenses there would be disclosure, but not on repeat misdemeanor offenses. She added that a determination would need to be made deciding what the intent of the disclosure would be, a portion of the punishment or public safety. Additional repeat offender crimes which would merit name disclosure after the second offense are drug offenses, sexual misconduct and assault. She commented that burglary was the most common offense, and representing a broad spectrum of seriousness. In response to Representative Hanley, Ms. Knuth explained that any crime committed with a deadly weapon would be considered a felony and would be serious. ROBERT BUTTCANE, PROBATION OFFICER, DIVISION OF FAMILY AND YOUTH SERVICES, DEPARTMENT OF CORRECTIONS, advised that it is a difficult task to address misconceptions that occur when dealing with youth who have broken the law. In discussing disclosure, a host of assumptions, misconceptions and myths sometimes are taken as truth. Mr. Buttcane attempted to clarify misunderstandings of the proposed legislation. He explained that there are fifty-five probation officers working for the Division of Family and Youth Services (DFYS). These people are committed to having safe communities and at the same time, trying to identify those young offenders who are more characterized as "mischief- makers". Those who can still be guided into becoming productive citizens. He stressed that most of the young people who are "in contact" with the juvenile correction system, "grown up". Mr. Buttcane acknowledged that some kids will never merge into the system. These are the ones who can cause serious danger to the welfare of themselves and the community, and whose needs should be placed secondary to the community. Mr. Buttcane spoke to disclosure and the appropriate time to release the names of those guilty juvenile offenders. Disclosure can be used as a tool at times to sway the youth offenders from continuing in the direction they currently are moving. The proposed legislation would capture some of 5 those young people, who potentially could have taken a change in their course of action, and instead push them into a more detrimental direction. Some thirteen and fourteen year old kids have not had the life or cognitive experiences to really connect cause and effect every time they make a decision. He added that he would not hold a twelve year old youth to the same standard of accountability that a sixteen year old would be held too. Mr. Buttcane provided an overview of the proposed legislation noting his concerns. He stated that Section 3 was good and would place shared accountability to communicate both on the victim and the Department. Section 4 is problematic, citing Page 2, Line 18, "if exercise of agency jurisdiction is based on:". Mr. Buttcane noted that nothing is initiated at DFYS until something is submitted by a law enforcement entity. That action provides agency jurisdiction. He pointed out that it would not be uncommon, when "probable cause" exists to proceed further in order to ascertain if all facts support the charge. Problems result from the scope of the "net" disclosure and could trigger probable cause evidence, resulting from a number of disclosures which would not have existed, had the investigation gone far enough to show those facts. Representative Kelly inquired how much further would that investigation need to go. Mr. Buttcane replied, to the point where additional factors surfaced. Representative Kelly questioned if that would be after the preliminary investigation, indicating that had been his intent through the legislation. Mr. Buttcane replied, as currently written, it would not. Representative Kelly expressed his surprise and anger that information had not been specified during previous meetings. Mr. Buttcane stated that it was unclear whether or not the trigger would occur at the police referral or following the outcome. Representative Kelly noted that he would submit an amendment to address that change. Mr. Buttcane suggested that language on Line 20, Page 2; "failed, without good cause" was "subjective" information and that it would be difficult to determine if the conditions had been present in order to disclose. He stressed that the legislation stipulated fifty-four different variables which would trigger a disclosure, creating an impossible feat for any probation officer. DIANE WORLEY, DIRECTOR, DIVISION OF FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, spoke to HCR 4, legislation relating to records generated and 6 maintained by the Department of Health and Social Services. She spoke to the necessary splits within DFYS to allow disclosure of juvenile records and the disclosing of confidential information without the loss of the federal IV- E dollars. Ms. Worley explained the organizational structure of the Division of Family and Youth Services. Responsibilities include the child in need of aid (CINA) cases and the juvenile corrections component. Currently, the Division's fiscal and administrative responsibilities are tied together. Some of the allocations received by the Division are received from the federal IV-E dollars, part of the Social Security Act and are received for children in out-of- home placement. Currently, the Division collects $7 million dollars for those children. There are very strict requirements to protect the confidentiality of the clients in order to qualify for the federal IV-E funds. Last year, when similar legislation was before the Legislature, the Division questioned federal standards in order to determine what was essential to continue receiving those dollars. Following discussions, a determination was made that there could be an internal separation with the administrative management and fiscal operation sections. Last Summer, the Division researched the necessary criteria to change the structure of DFYS in order that federal dollars could continue on the CINA kids, loosing only federal money on the juvenile population. The fiscal note for HCR 4 identifies restructuring costs for the Division. She added that the fiscal note attached to HB 6 also identifies both the restructuring costs and the loss of federal funds. If HB 6 passed without HCR 4, it would be essential that all necessary costs are addressed. She spoke to the fiscal overlap in the submitted notes. Co-Chair Hanley asked how many serious offenders receive the IV-E monies. Ms. Worley explained that would depend in which section they currently rest within the Division. If they are in the juvenile corrections segment but are not in a facility, they would still qualify. Co-Chair Hanley asked how many children were in that circumstance. Ms. Worley offered to provide information to Committee members on number of the youth, the State currently is drawing federal IV-E dollars on and which category they are classified in. Representative Kelly inquired the number of crimes on the list that have gone the adjustment "route". Ms. Worley offered to provide that information. Representative Kelly asked if the federal IV-E money identified delinquents. Ms. Worley replied, those monies were for both CINA kids and the 7 juvenile delinquent program, used when the youth are placed in out-of-home care other than a facility. Representative Kelly asked if that money was received as a block sum. (Tape Change, HFC 97-51, Side 1). Ms. Worley stated that the money is collected based on how the dollars are divided between the two sections. Currently, there is latitude of spending based on the two sides. The proposed legislation would change that latitude in drawing on those kids who are in the youth correction side separated from the out-of-home placement. Co-Chair Hanley asked if CINA kids were fully funded. Ms. Worley responded that the Division is always in need of additional resources, although, the federal IV-E dollars cover a substantial portion of those children's costs. That funding is used to cover payment for children and the personnel positions associated with those responsibilities in the Division. All money, both federal and State dollars flow through the Division. If there were three sections, rather the two, the allocations would still flow through the same administrative services. Representative J. Davies questioned the costs associated with the restructuring and separating authority lines. Ms. Worley responded that the federal government has specific guidelines which must be followed to meet the "letter of the law" in order to qualify for the funding. Ms. Worley spoke to previous discussions regarding restructuring of the Division. Probation and facilities would need a line of authority statewide. She stressed that the entire youth correction program has developed inconsistency throughout the state. The Division intends to implement more clear statewide guidelines for probation and facilities. Presently, these systems are being addressed from a local perspective rather than statewide concern. Representative Kelly questioned the need for splitting of the probation services as recommended in the fiscal note. Ms. Worley replied that split would occur below the director's office. At this time, the Division intends to restructure. Under the director's authority, there would be an administrator for Family and Youth Services and an administrator for the Youth Services component. They would both report directly to the director. In response to Representative Kelly, Ms. Worley stated that the splits would depend on the current structure. At this time, there are three regions, South Central, Northern and South East. There is a administrator in each of the three 8 regions. Each one is a combined supervisor-manager- administrator responsible for both sections of their area in the State. Those positions would be deleted under the proposed restructuring. She believed that regionalization would continue to work well for the Family and Youth Services component; whereas, the staffing needs of the Youth Corrections component would be less. With the proposed restructuring, the regional administrator position would be deleted, and instead a lower range position would be hired in each region, coordinating all the family services for that area. For the youth service component, there would be a statewide administrator in Juneau and a superintendent who would supervise the overall, statewide approach to all of the facilities, satisfying the need for statewide coordination. Representative Kelly asked how similar the restructuring needs proposed in the legislation would be to the original restructuring intent of the Division. Ms. Worley replied that the Division had not planned to restructure. She agreed that a need exists, and that the Division had been looking at providing some "modifications" in order to provide a more efficient approach between regional and statewide needs. Co-Chair Therriault inquired if there was separate legislation which addresses "disclosure". Ms. Worley replied that it had been addressed in the Governor's bill and that the fiscal notes in that legislation would be identical to those provided in HB 6 and HCR 4. Mr. Buttcane reiterated his concern with "disclosure" as used in the proposed legislation. As contained in the bill, disclosure would be an "inappropriate" tool for probation officers. Mr. Buttcane advised that disclosure in the "informal" process of preliminary investigation would be harmful. He pointed out that during the informal process was the place where most of the work in the juvenile system did occur and was the area where loss of cooperation would most likely happen. In response to a comment made by Mr. Buttcane, Co-Chair Therriault interjected that the parent and child do not enter the system voluntarily; they are sent by the police. Mr. Buttcane agreed that they do not have a choice, although, whether they descend further into the system could be a choice. He pointed out that between 60% & 70% of youth offenders are involved in the choice of filing. The juvenile system allows informal intervention, a place where most of the "healing" and corrections take place. The purpose of the informal system is to get everyone to agree 9 that the action was wrong. Ninety percent of the kids that come into the system process are willing to admit that they participated in the crime. By entering into the formal petition, time is spent on trying to prove guilt. Disclosure at the informal, adjusted phase, jeopardizes the entire purpose of sitting at the table to address the problem. He emphasized that the scope of the proposed legislation was too broad. Mr. Buttcane spoke to the differences between burglary which deserves public condemnation and the type of burglary which would be of a lesser offense, suggesting that the intent to commit a crime could be different in different circumstances. Representative J. Davies asked Mr. Buttcane to comment on a conceptual amendment of attaching disclosure only to the petition route. Mr. Buttcane agreed that action would be more in line with the intent of the Administration. Representative J. Davies asked for a characterization of the range of violations which go through the petition process. Mr. Buttcane stated it would cover all offenses from Class B misdemeanors through the unclassified felony. Because of case circumstances, files could be used on a "B" misdemeanor, if it preceded other referrals for inappropriate behavior. He suggested that each communities standards could differ statewide. Policies and procedures do specify when a petition "shall" be filed and would typically relate to Class "A" and unclassified felonies, property or person offenses. Representative J. Davies questioned the number of instances that a minor pleaded guilty at the time of petition. Mr. Buttcane replied that 80% of the petitions filed throughout the State do not go to a formal trial. At this stage, plea negotiations begin. He stressed that the purpose of the juvenile system is to "straighten out" the youth. Representative Martin suggested that kids like "attention", and thought that could happen with passage of disclosure. He believed that some children's parents would prefer that the kids be dealt with at the court level, which would be a financial drain to the State. He foresaw problems with passage of the legislation. Representative Kelly reminded Representative Martin that adults have their names published each time they commit a crime and that HB 6 would create the same for youth. The intent of the bill would be less to punish the child and more for public safety. (Tape Change HFC 97-51, Side 2). 10 Representative Martin asked if the basic rights of a child would be protected in HB 6. Mr. Buttcane pointed out that disclosure addresses when the right of the individual ends and the right of the community to be safe takes over. A line would be drawn on personal rights. He agreed that in some cases, it would make sense, when the community has interests which out weigh the individual's. Kids branded in public as being criminals, do not have the resources that an adult has to leave that reputation behind. Mr. Buttcane pleaded that youths rights be recognized in the process of directing the cases into correction activity, rather than after a long-wait of due process procedure. Co-Chair Therriault interjected that no constitutional "right" exists for a juvenile offender for confidentiality. He stressed that concept was an extension provided by law. Representative Kelly questioned the length of time it would take from a referral to a preliminary investigation. Mr. Buttcane noted in Anchorage, 60% are assessed within two weeks, at which time, it is determined if that person goes the adjustment or petition "route". He added, the time element varies throughout the State. Representative J. Davies questioned the length of time between the incident or arrest and the referral to DFYS. Mr. Buttcane stated that would depend on police referral resource. Referrals from Alaska State Troopers tend to take longer, whereas, in places with well organized police departments, it could be addressed as soon as the next day. Co-Chair Therriault noted that Co-Chair Hanley would scrutinize the fiscal notes through the DHSS subcommittee process. HB 6 and HCR 4 were HELD in Committee for further consideration.