HB 105-DETENTION OF MINORS  [Due to technical difficulties, the first few minutes of audio was not captured; however, the pertinent information has been provided from the secretary's log notes.] 3:27:20 PM CO-CHAIR SNYDER announced that the next order of business would be HOUSE BILL NO. 105, "An Act relating to the duties of the commissioner of corrections; relating to the detention of minors; relating to minors subject to adult courts; relating to the placement of minors in adult correctional facilities; and providing for an effective date." 3:27:21 PM TRACY DOMPELING, Director, Division of Juvenile Justice (DJJ), Department of Health and Social Services (DHSS), presented HB 105 on behalf of the bill sponsor, House Rules by request of the governor. She explained that the intent behind HB 105 is to bring Alaska into compliance with recent changes to the Juvenile Justice and Delinquency Prevention Act (JJDPA). The JJDPA was initially enacted in 1974 and reauthorized in 2018, she continued, and is the primary piece of federal legislation that guides juvenile justice practices around the country. Lack of compliance with the JJDPA will lead to grant penalties on the divisions' major federal grants. She stated that HB 105 makes two changes in statute to bring Alaska into compliance. The first change is that the bill would require that minors who have been waived into the adult criminal justice system be held in juvenile facilities until the minors become legal adults and turn 18. Currently, she added, minors who are subject to the auto waiver or discretionary waiver statute are held in adult jails and correctional facilities. The second change, she said, is that the bill would expand the court findings that are necessary for non-delinquent minors to be held temporarily in a secured juvenile justice facility. MS. DOMPELING explained that the bill is limited in scope and intentionally has no impact on the crimes or sentences of minors who are subject to the waiver into the adult justice system. Further, the bill will have no fiscal net impact. If implemented, she opined, HB 105 would improve the conditions of confinement for minors that are currently held in adult facilities. She said that minors can be difficult to manage in adult facilities and are often placed in segregation units. To accomplish this, the proposed legislation would require the Department of Corrections (DOC) and DHSS to develop agreements about the holding of minors who are in DOC custody in DJJ facilities. She added that data provided to the committee by DOC [hard copies included in committee packets] identified seven youth under the age of 18 who are currently held in a facility statewide. MS. DOMPELING continued that the second change proposed by the bill involves the limited circumstances when non delinquent minors may be held temporarily in secure juvenile justice facilities pending another placement, which qualifies as a non- secure placement. She noted that these situations are rare and generally only happen when a minor in the custody of the Office of Children's Services (OCS) has run away from placement and is in a dangerous situation. In those situations, she explained, under AS 47.10.141, these minors are held securely for a short period of time pending placement in another non-secure setting. The new federal changes to the JJDPA expand the court findings that are necessary before those minors may be detained, and further limits the duration of the secure holding. She reiterated that these cases are rare, and noted that there has been a total of only three minors that have been held in this manner during the last three fiscal years. 3:28:59 PM MATT DAVIDSON, Social Services Program Officer, Division of Juvenile Justice, Department of Health and Social Services (DHSS), presented the sectional analysis of HB 105 on behalf of the bill sponsor, House Rules by request of the governor. He paraphrased Sections 1 through 3 of the Sectional Analysis, which read as follows [original punctuation provided]: Section 1: Amends AS 33.30.011(a) Duties of commissioner to expand the duties of the Commissioner of the Department of Corrections to enter into agreements with the Department of Health and Social Services for the detention and care of minors who are waived into the adult criminal justice system. Section 2: Amends AS 47.10.141(c) Runaway and missing minors to reference a new subsection that adds new requirements for court findings related to holding non-delinquent minors in secure juvenile facilities. Section 3: Amends AS 47.10.141 Runaway and missing minors to add a new subsection to include expanded requirements for court findings before a non- delinquent minor can be held in a secure juvenile facility. MR. DAVIDSON reminded the committee that Section 3 is a rare occurrence and such measures are only taken when a minor is in danger. He explained that Section 4 and Section 5 address DJJ jurisdiction and applicability, and read as follows [original punctuation provided]: Section 4: Amends AS 47.12.020 Jurisdiction to add a new subsection related to the jurisdiction of the Division of Juvenile Justice to detain and care for minors under Department of Corrections custody. Section 5: Amends AS 47.12.022 Applicability; inclusion of certain persons as minors to make conforming amendments to include minors subject to the adult court processes in the definition of "minor" in delinquency statute. MR. DAVIDSON paraphrased the remainder of the sections, which read as follows [original punctuation provided]: Section 6: Amends AS 47.12.030(a) Provisions inapplicable to add a reference to the "autowaiver" statute the new practice of holding minors subject to adult court proceedings in secure juvenile facilities. The section also includes the term "transported" to the adult processes that apply to waived minors to reflect current practices. Section 7: Amends AS 47.12.100(a) Waiver of jurisdiction to add a reference to the "discretionary waiver" statute the new practice of holding of minor offenders subject to adult court proceedings in secure juvenile facilities. The section also includes the list of adult court practices that apply to these offenders. Section 8: Adds a new section 47.12.105 Minor offenders subject to adult court to describe the process, requirement, and exceptions for holding minor offenders in the custody of the Department of Corrections in secure Division of Juvenile Justice facilities until age 18. This section also describes the court process and findings that may allow for minors to be held in adult facilities in certain circumstances. Section 9: Amends AS 47.12.150(a) Legal custody, guardianship, and residual parental rights and responsibilities to make conforming changes to clarify that minors in the custody of the Department of Corrections detained in Division of Juvenile Justice facilities are subject to the same residual parental rights as other minor offenders. Section 10: Amends AS 47.12.160(e) Retention of jurisdiction over minor to make conforming changes to the dual sentencing provisions. Section 11: Amends AS 47.12.240(a) Detention of minors to make conforming changes. Sections 12-13: Amends AS 47.12.250(a) Temporary Detention and Detention Hearing to make conforming changes. Section 14: Amends AS 47.12.310(a) Agency Records to apply the same confidentiality requirements for information about waived minors as other minors served by the Division of Juvenile Justice, unless otherwise allowed by statute. Section 15: Amends AS 47.12.310(b) Agency Records to specifically allow information sharing between the Division of Juvenile Justice and the Department of Corrections about former juvenile offenders and minors in DOC custody held in secure juvenile facilities until age 18. Section 16: Repeals sections for conforming purposes. Section 17: Applicability clause applies to minors in Department of Corrections custody on or after the effective date.   Section 18: Revisor's instructions. Section 19: Special effective date clause. This Act takes effect on July 1, 2021. 3:33:01 PM REPRESENTATIVE MCCARTY asked Ms. Dompeling how many 18-year-olds are in DJJ facilities and how many minors are currently in DOC facilities. MS. DOMPELING answered that she doesn't know how many 18-year- olds are in DJJ facilities currently, but she can get that information for him. She said that, for delinquent youths, DJJ has the authority to supervision until the youth turns 19. She said that there are some 18-year-olds in the DJJ facilities that are there under the delinquency statutes, not under the auto- waiver. According to the numbers provided by DOC today, she said, there are seven minors in DOC facilities state-wide. MR. DAVIDSON added that Section 8 of HB 105 discusses transferring minors who are 18 years old to DCC custody at age 18. He offered clarification that this only applies to minors who have been waived into the adult system. He said that no delinquent minors will be transferred to DOC at age 18 as these minors are held under different statutes. He informed committee members that the Senate Health and Social Services Standing Committee noted the same lack of clarity [in Section 8 of SB 91, which was absorbed into HB 105], and for this reason adopted a committee substitute in a meeting on April 6, 2021, with suggestions from DJJ to clarify that it referred only to waived minors. REPRESENTATIVE MCCARTY asked whether this would alter the number of 18-year-olds in the system. MS. DOMPELING replied that this would not be changed. She said that under delinquency statues that fall under AS 47.12, DJJ would still have the ability to have jurisdiction over juveniles potentially up to age 19. REPRESENTATIVE MCCARTY asked whether offenses are treated differently when determining if an 18-year-old goes to a DJJ facility or a DOC facility. MS. DOMPELING answered yes, there are different offenses. The statute for automatic waiver of offenses is for minors who are age 16 or older at the time of the offense, she said, and the majority fall under [AS 47.12.030] that if those youth are alleged to have committed an unclassified or felony crime against a person or arson in the first degree, it would be classified as an auto-waiver case. 3:36:57 PM REPRESENTATIVE FIELDS asked whether the department could detail the changes and amendments that were proposed by the House Judiciary Standing Committee on April 12, 2021. MR. DAVIDSON explained that the House Judiciary Standing Committee passed two amendments: the first amendment caught an error in Section 3 of HB 105, but left a reference to delinquency in the Child Protection statute [AS 47.12.250]. He offered clarification that this was an existing erroneous reference in the statute, and the intent is to fix that error in the bill. He explained that the section of the Child Protection statute only deals with runaways, not the arrest of delinquent minors. The second amendment was passed in an attempt to clarify Section 8 of HB 105 to ensure that the section refers only to waived minors who are subject to the auto-waiver under AS 47.12.030 or under AS 47.12.100, which is the discretionary waiver. He shared that the Senate Health and Social Services committee defined the term "waived minor" for the purposes of achieving clarification in Section 8. He emphasized that the legislation would not change how delinquent minors are held, but would focus on the new class of minors that the division would be responsible to hold potentially between the minors' sixteenth and eighteenth birthdays if waived into the adult system. 3:39:18 PM REPRESENTATIVE PRAX asked Ms. Dompeling for clarification on minor offenders subject to adult court, whom he understood are entitled to a hearing every 30 days to determine whether they should be continued to be held in adult facilities. He asked how this would work, particularly in terms of the fiscal note. MS. DOMPELING answered that it's a "relief valve," and explained that DJJ's intention is to hold every single automatically waived juvenile in the DJJ system. If, for some reason, the juvenile is out of control to an extent that all of the available resources allocated for the juvenile have been maxed out, she explained, and DJJ has determined that the individual would be better suited in a DOC facility, the department could go to a judge in a court and provide evidence as to why a DOC facility might be a better fit. The judge would then make a decision based off these findings, and the state would not be penalized for violating the Juvenile Justice and Delinquency Prevention Act (JJDPA) because the findings would be cemented in the court. She said that a requirement that is part of JJDPA is that there needs to be a review every 30 days by the judge to ensure that the circumstances still exist that make the DOC facility still a better fit for the minor. She emphasized the importance of judicial oversight when a minor is placed in adult facilities. REPRESENTATIVE PRAX shared his understanding that an initial sentence requires that a juvenile be held in a juvenile facility, but circumstances may change after sentencing that cause DJJ to determine that the juvenile should be held in an adult facility. He asked Ms. Dompeling whether his understanding is correct. MS. DOMPELING responded yes, that's correct. She added that this could occur pre-conviction or post-conviction. 3:43:18 PM REPRESENTATIVE MCCARTY asked Ms. Dompeling whether the evaluation for placement is objective or subjective. MS. DOMPELING replied that the reasons that would have to be identified to support holding a minor in an adult facility would have to be specific in statute. She explained that DJJ brings the issue forward, but there would have to be judicial proceedings to make the change. REPRESENTATIVE MCCARTY asked whether there are objective evaluators through DJJ to avoid legal action. MS. DOMPELING replied that the memorandum of understanding (MOU) is not prepared yet, but shared that her vision as director is to have protocols in place in DJJ to ensure that mental health clinicians have worked with juvenile justice officers and nursing staff and other direct care youth to try to help manage the behavior of the minor. REPRESENTATIVE MCCARTY commented that he is encouraged to hear that that process is in place. 3:46:14 PM REPRESENTATIVE KURKA directed attention to Section 8 of HB 105 [page 7, lines 18-31 and page 8, lines 1-21], and shared his understanding that the evaluation categories appear subjective. He asked Ms. Dompeling whether these were the guiding statutes. MS. DOMPELING responded that she was referring to internal protocols, but the statutes referenced in Section 8 of the bill [AS 47.12] would be the guiding statutes, and are sourced from the federal JJDPA. REPRESENTATIVE KURKA shared his understanding that, while the process would follow particular guidelines, it would remain subjective, and he opined that there is no structured standard or clarity. He asked whether it's necessary for the guidelines to be subjective, or would clarifying language be more appropriate. MS. DOMPELING answered that it is sufficient in its current state. She noted that the department has worked with the Public Defender Agency (PDA) to recognize that, in those situations, minors affected would still be represented by PDA and would have legal counsel available. She clarified that she anticipates that this will not be a common event, and that there are currently many minors in the DJJ system that have behavioral problems and it has been determined that DJJ is still the best appropriate facility for these minors. She noted that the staff are experienced in managing difficult behaviors and that minors would only be transferred to DOC in extreme situations. 3:50:07 PM REPRESENTATIVE PRAX stated his understanding that the goal of HB 105 is to reduce numbers of juveniles being held in adult facilities. He asked Mr. Davidson whether there would be much of a change in Alaska, and offered a guess that there may not be separate facilities for adults and minors in smaller communities throughout the state. MR. DAVIDSON responded that the expectation of the proposed legislation is that all minors would be required to be held in DJJ facilities. He explained that there are some exceptions in Section 8 of the bill that would allow minors to be held in adult facilities, but he said these cases would be rare. He opined that the 30-day requirement for courts to revisit minors being held in adult facilities is a high standard. He noted that currently, all minors are permitted to be held in adult facilities during transport to a juvenile facility [AS 47.12.240], and that is intended to remain with the proposed legislation. He added that another instance that may occur is that, when juveniles go to court, the juveniles will temporarily be held in an adult facility pending the court hearing. He continued that DJJ also recognizes that there are communities without juvenile facilities, and part of the "relief valve" for these communities is the judge's ability to rule that the minor be held in an adult facility throughout the court proceedings pending the outcome of the trial. The expectation at the end of the trial, he said, is that the minor be moved to a juvenile facility. He stated that it is a common practice to hold juveniles in adult facilities in segregation units, separate from the rest of the adult population in the facilities. He opined that those experiences would be dramatically improved for those minors [should HB 105 pass]. 3:54:07 PM CO-CHAIR SNYDER opened public testimony for HB 105. After ascertaining that there was no one who wished to testify, she closed public testimony. [HB 105 was held over.]