HB 105-DETENTION OF MINORS  4:05:57 PM CO-CHAIR ZULKOSKY 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." [Before the committee, adopted as a working document on 5/4/21, was a proposed committee substitute (CS) for HB 105, Version 32-LGH1576\I, Radford, 5/1/21 ("Version I").] 4:06:52 PM CO-CHAIR SNYDER moved to adopt Amendment 1 to HB 105, Version I, labeled 32-GH1576\I.1, Radford, 5/5/21, which read: Page 1, line 2, following "Services; ": Insert "relating to the right to representation  by the Public Defender Agency;" Page 8, following line 4: Insert a new bill section to read:  "* Sec. 13. AS 18.85.100(a) is amended to read: (a) An indigent person who is under formal charge of having committed a serious crime and the crime has been the subject of an initial appearance or subsequent proceeding, or is being detained under a conviction of a serious crime, or is on probation or parole, or is entitled to representation under the Supreme Court Delinquency or Child in Need of Aid Rules or at a review hearing under AS 47.12.105(d), or is isolated, quarantined, or required to be tested under an order issued under AS 18.15.355 - 18.15.395, or against whom commitment proceedings for mental illness have been initiated, is entitled (1) to be represented, in connection with the crime or proceeding, by an attorney to the same extent as a person retaining an attorney is entitled; and (2) to be provided with the necessary services and facilities of this representation, including investigation and other preparation." Renumber the following bill sections accordingly. Page 33, lines 12 - 13: Delete "sec. 22" Insert "sec. 23" Page 33, line 13: Delete "secs. 2 - 8 and 22" Insert "secs. 2 - 8 and 23" Page 33, line 15: Delete "sec. 21" Insert "sec. 22" Page 33, line 18: Delete "sec. 21" Insert "sec. 22" Page 33, line 25: Delete "Section 56" Insert "Section 57" Page 33, line 26: Delete "sec. 57" Insert "sec. 58" CO-CHAIR ZULKOSKY objected for discussion purposes. CO-CHAIR SNYDER explained that Amendment 1 would addresses a concern relating to the right to representation by the public defender agency. She deferred to Ms. Nancy Meade to explain the amendment. 4:07:33 PM NANCY MEADE, General Counsel, Alaska Court System, stated that Amendment 1 could be viewed as a conforming amendment. She explained that Section 25 of HB 105, Version I, has a provision for those minors who are waived into adult court; it is a long- standing part of Alaska statutes that 16- or 17-year-old minors who have committed more egregious types of crimes are treated as adults. When minors are treated as adults, they are outside the juvenile delinquency statutes and are not part of AS 47.12. However, Sec. 47.12.105, which is added in Section 25, brings those minors who are otherwise treated as adults under this chapter just for the only purpose of possibly having a judge determine where they should be detained, with a preference expressed generally in that provision for having those minors detained in a juvenile facility, although a judge can decide otherwise if requested to do so; for example, if the minor is particularly violent. That provision in the bill sets out standards the court must use to make that determination. That minor is entitled to a hearing every 30 days to make sure that if they are detained in an adult facility they should stay in that adult facility, and the judge makes that determination at a review hearing. MS. MEADE continued explaining Amendment 1. She said page 18 of Version I, lines 9-10, state that the waived minor is entitled to representation at that review hearing, given the minor has some important rights at issue. She pointed out that when a statute says somebody is entitled to counsel, if that person is indigent there needs to be a change to the public defender's authorization statute to let them represent these folks. So, while the case is ongoing for an indigent person, the public defender is defending them because they are an adult accused of a serious crime. However, some of these minors will have been sentenced already so the case is closed, the public defender's representation has ended, but there might still be these review hearings called for under this provision. Therefore, she explained, Amendment 1 would amend the public defender's authority statute, which lists all the things they cover to authorize them to give them the duty to represent people at these review hearings. Ms. Meade related that she has spoken with the public defender's office about this, and the public defender is fine with it; plus, the public defender probably will have represented the minor throughout the case and so it makes sense that they would be the entity to do so. She said this basically ensures it is covered so a hole isn't caused by this statute in 47.12 that says that they get an attorney. 4:11:22 PM REPRESENTATIVE MCCARTY offered his understanding that this process would bring continuity of care representation all the way through until the person is fully in the Department of Corrections. MS. MEADE replied correct, the entity that represented the minor before will keep doing so for the review hearings that might occur after the case is otherwise closed. CO-CHAIR ZULKOSKY removed her objection. There being no further objection, Amendment 1 was adopted. 4:12:10 PM CO-CHAIR SNYDER moved to adopt Amendment 2 to HB 105, Version I, labeled 32-GH1576\I.2, Radford, 5/5/21, which read: Page 26, following line 18: Insert a new bill section to read: "* Sec. 39. AS 47.12.300 is amended by adding a new subsection to read: (i) Except as provided in (f) of this section, this section does not apply to the records of a minor who is waived into adult court under AS 47.12.030 or 47.12.100 and is subject to this chapter only to the extent that AS 47.12.105 applies to the minor." Renumber the following bill sections accordingly. Page 33, line 25: Delete "Section 56" Insert "Section 57" Page 33, line 26: Delete "sec. 57" Insert "sec. 58" CO-CHAIR ZULKOSKY objected for discussion purposes. CO-CHAIR SNYDER explained that Amendment 2 would add a new subsection addressing the issue of public records of court cases as related to waived minors. She deferred to Ms. Meade to explain the amendment. 4:12:31 PM MS. MEADE stated that Amendment 2 is a small technical fix. She explained that under AS 47.12.300, Court Records, the court records of juvenile delinquency cases are confidential, with exceptions for victims and foster parents to get access to information. Waived minors are treated as adults, usually because the crime they are accused of is more egregious, and those records like all criminal records are public records. The statute on court records in the delinquency law says the court's records prepared under this chapter are confidential. However, Section 25 of the bill relating to 47.12.105 brings those waived minors under this chapter for that very small piece of their case of when the judge determines where they should be housed. So, in reading the court records provision specifically, those would be records prepared under this chapter that could be read to make at least that part of that person's case confidential. But, Ms. Meade continued, the whole rest of the case is public because the waived minor is an adult, and it is a criminal case. Since it makes sense to keep the whole case public, Amendment 2 would write an exception and make public that small portion of a waived minor's case that is under the 47.12 juvenile delinquency laws for the purpose of having the judge determine where the waived minor is detained. Because a waived minor is being treated like an adult, he or she would not get the benefit of the confidentiality provision that applies to the other juvenile delinquency cases. 4:14:46 PM REPRESENTATIVE PRAX requested a restatement of the explanation of Amendment 2. MS. MEADE responded that minors who are of a certain age who have committed basically more egregious crimes are treated as adults, which means their case is public like any criminal case. But, she continued, the existing law in the juvenile delinquency rules says that the case of any minor under this chapter is confidential, which hasn't been a problem because those minors aren't under this chapter. But, HB 105 would add this chapter about a judge deciding where these waived minors get housed so they would now be under this chapter. The question, then, is whether their case is confidential, but the policy throughout the statutes is those minors are adults just like any criminal case. Often the media cares about a case like that, Ms. Meade noted, and they've always been public. It's almost like a loophole because the waived minor would get the benefits of confidentiality, which would conflict with the rest of the policy reflected that those minors have possibly done the type of offense that the public has a right to know about. [Under Amendment 2, waived minors] would not get the benefit of their case being confidential because they are in an adult world where criminal cases are all public, the court is transparent, and people know what is happening with criminal cases. 4:16:40 PM REPRESENTATIVE KURKA offered his understanding that Amendment 2 would clarify that [waived minors] don't get privacy because they are being tried as an adult even though they are still residing in a juvenile detention center. MS. MEADE confirmed that that is one way to look at it. 4:17:22 PM REPRESENTATIVE PRAX opined that public access has some benefits and some drawbacks. He stated he is not necessarily interested in the media getting access to information because generally the media's interest is to make a spectacle of it, but for those people who are more intimately involved and have a need for access the confidentiality gets in the way of doing something good. He asked whether there is any way to strike a balance. MS. MEADE answered that the default of Alaska's public access rules is that all court records are public. Records are only confidential if a statute, special court order, or court rule [says so]. She suggested that perhaps a middle ground is that somebody can always move the court; there can be a discussion if there is a particular reason to vary from the general rules about access. A very fundamental one of Alaska's public access rules is criminal cases are public. There isn't an overall reason to keep criminal cases confidential, she continued, but there is for juvenile delinquency because a minor has enhanced privacy interests. She said there is more of an emphasis on rehabilitation when it is a Division of Juvenile Justice case and on outcomes that will enhance the future of that minor so that the minor doesn't begin or keep on with a life of criminality. However, Ms. Meade added, a regular criminal case is public so that people can know what is going on and have public trust and confidence in what their court system is doing and in issues that are a matter of public interest. 4:20:12 PM REPRESENTATIVE PRAX asked whether it is fair to say that for purposes of this bill it is just whether they fit as a juvenile or a juvenile is charged as an adult. MS. MEADE replied that the statutes already contain the decision that a 16- or 17-year-old who committed a more heinous crime is an adult for all purposes. It would be a little bit of an anomaly to say but for confidentiality purposes they get the juvenile delinquency benefits, she continued, so that is what this ensures does not happen. REPRESENTATIVE PRAX asked whether figuring out that balance would be worth a discussion at some point, but not as part of this bill. MS. MEADE responded that the legislature may want to discuss that, but it is beyond her area because it would be the legislature's policy decision. She said she is willing to talk privately with Representative Prax about the merits of something like that. 4:21:33 PM REPRESENTATIVE KURKA stated that the public and the legislature need to know what is going on in the court system for the purpose of accountability. He said he thinks there is a balance with Amendment 2 because of the protection of privacy that Alaska has for minors. The whole intent with juvenile justice, he added, is less toward justice and more toward rehabilitation. But, he continued, there comes a point where the focus is no longer on rehabilitation when a 17-year-old, still technically a minor who will still go to go the juvenile detention center, is treated legally as an adult because his or her act was [extremely serious] and not that of a child. There are the rights of the accused, but there are also the rights of the victims, he added, and having that public transparency is very important. 4:23:34 PM REPRESENTATIVE MCCARTY asked whether he is correct that the concern is that this [waived] minor doesn't get any perks, the minor is being tried as an adult, and all is exposed to the public. Amendment 2 would clean up the language so that housing a [waived] minor in the juvenile detention center could not produce a potential loophole for things the [waived] minor should not be privileged to. MS. MEADE confirmed that that is correct. CO-CHAIR ZULKOSKY removed her objection. There being no further objection, Amendment 2 was adopted. 4:24:41 PM REPRESENTATIVE KURKA commented that the joining of HB 116 with HB 105 has created a monster of a bill. He said he will therefore be carefully looking through it to make an informed decision on the bill's passage. 4:25:04 PM CO-CHAIR SNYDER moved to report the proposed CS for HB 105, Version 32-LGH1576\I, Radford, 5/1/21, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 105(HSS) was reported out of the House Health and Social Services Standing Committee.