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.