HB 105-DETENTION OF MINORS  1:34:31 PM CHAIR CLAMAN announced that the first 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." CHAIR CLAMAN noted that HB 105 is sponsored by the House Rules Committee by request of the governor and that this is the bill's second hearing before the committee. 1:34:58 PM CHAIR CLAMAN opened invited testimony on HB 105. He asked Ms. Samantha Cherot, Public Defender Agency, to provide perspective on the bill. 1:35:32 PM SAMANTHA CHEROT, Esq., Public Defender, Public Defender Agency, Department of Administration, on behalf of the administration, provided invited testimony in support of HB 105. She stated that keeping children subject to the auto waiver or discretionary waiver in Division of Juvenile Justice (DJJ) facilities until they reach age 18 should result in better conditions for the impacted children as long as DJJ has the necessary resources for programming and to care for them. It should eliminate children being held in segregation while incarcerated and it should ensure their continued access to necessary educational services and programming in DJJ's facilities focused on rehabilitation and which will better enable these children to develop the necessary skill sets to reduce recidivism and to foster their continued cognitive development. This is critical given the fundamental differences between juvenile and adult minds and that the brain is not fully formed until one's mid-twenties. 1:36:57 PM CHAIR CLAMAN closed invited testimony. CHAIR CLAMAN announced he would entertain amendments and stated for the record that Legislative Legal Services has permission to make any technical and conforming changes to the bill. CHAIR CLAMAN handed the gavel to Vice Chair Snyder. 1:37:54 PM CHAIR CLAMAN moved to adopt Amendment 1 to HB 105, labeled 32- GH1576\A.1, Radford, 3/8/21, which read: Page 5, line 7: Delete "AS 47.12.250" Insert "(k) of this section" REPRESENTATIVE DRUMMOND objected. 1:38:04 PM CHAIR CLAMAN stated that the Division of Juvenile Justice would explain Amendment 1 given the division requested that he offer this amendment and a second amendment in coordination with DJJ's discussions with the court system. 1:38:27 PM MATT DAVIDSON, Social Services Program Officer, Division of Juvenile Justice (DJJ), Department of Health and Social Services (DHSS), on behalf of the administration, said Amendment 1 would correct a drafting error in HB 105. He drew attention to Section 2 of the proposed bill, page 4, line 30, which removes an existing reference in state statute to the holding of nondelinquent minors under AS 247.12.120 and 247.12.250. He explained that Amendment 1 would remove another reference to 247.12.250 [on page 5, line 7] in Section 2, and would add a reference to the process delineated in Section 3, the new subsection (k) [that would be added to AS 47.10.141]. He further explained that existing statute mistakenly contains a reference to how delinquent minors would be held in a process to hold nondelinquent minors. So, it is circular, and this was recognized during drafting of the bill. This correction would just carry on that correction to remove the reference to delinquency statute for secure holds for nondelinquent minors. 1:40:24 PM REPRESENTATIVE DRUMMOND asked where the new subsection (k) is located within the bill. MR. DAVIDSON replied that Section 3 [on page 5] is the new subsection (k) that describes the process under which a court must go and consider and the process for the process of holding nondelinquents temporarily in juvenile justice facilities. REPRESENTATIVE DRUMMOND requested further clarification on where in the bill the [new subsection (k)] is located. CHAIR CLAMAN brought attention to Section 2, [page 4, line 24], which states AS 47.10.141(c). He explained that when it later says on page 5 "under subsection (k)" it is referencing 47.10.141. He then directed attention to Section 3 [on line 12 of page 5], which states AS 47.10.141, and pointed out that subsection (k) is right below [beginning on line 13]. 1:41:52 PM REPRESENTATIVE EASTMAN asked what the practical effect would be if Amendment 1 failed. MR. DAVIDSON answered that the practical effect is not great, but that it is an opportunity to clean up this statute. He said delinquents are not held under this process - delinquency statute contains all the process needed for holding delinquent minors in secure facilities - but it could lead to confusion, and this is an opportunity to clean it up. 1:42:47 PM REPRESENTATIVE DRUMMOND removed her objection to Amendment 1. [There being no further objection, Amendment 1 was adopted.] 1:43:05 PM The committee took a brief at-ease. 1:43:11 PM REPRESENTATIVE CLAMAN moved to adopt Amendment 2 to HB 105, labeled 32-GH1576\A.3, Radford, 3/9/21, which read: Page 7, line 22: Delete "A minor shall be transferred" Insert "The department shall transfer a minor subject to the provisions of AS 47.12.030(a) or 47.12.100" Page 7, lines 27 - 30: Delete all material and insert: "(c) If there is no available juvenile detention facility in a community where a trial is being held or if a juvenile facility is inappropriate for a minor, the department may request that the court order, in the interest of justice, that a minor be held in an adult correctional facility with or without sight and sound separation from adult offenders. In making this decision, the court shall consider" Page 8, line 12: Delete "court shall hold" Insert "department shall request" REPRESENTATIVE DRUMMOND objected for discussion purposes. 1:43:30 PM CHAIR CLAMAN requested Mr. Davidson explain Amendment 2. MR. DAVIDSON explained Amendment 2 would add substantive clarifications that were identified in the review process. He said the first of the three changes proposed in Amendment 2 is on page 7, line 22, and clarifies that when the bill says at age 18 minors will be transferred to Department of Corrections (DOC) custody, it is talking about only the minors that are part of this section, which are the auto waiver minors and discretionary waiver minors, not delinquent minors. This part of Amendment 2 clarifies that minors who are in DJJ facilities as part of this new program, but they are considered adults as part of the adult court system, will be transferred to DOC custody at age 18. It does not apply to delinquent minors. Most DJJ jurisdiction ends at age 18. In some cases, a court can extend that jurisdiction to age 19 with another court finding, and in some very rare cases if the minor consents to it, a minor can stay in DJJ jurisdiction until age 20. This would not apply to minors who are subject to the auto waiver or discretionary waiver; they would be transferred to DOC facilities at age 18. 1:45:37 PM REPRESENTATIVE DRUMMOND noted that if "A minor shall be transferred" is deleted and insert "The department shall transfer a minor subject to the provisions of AS 47.12.030(a) or 47.12.100", the sentence would then read, "The department shall transfer a minor subject to the provisions of AS 47.12.030(a) or 47.12.100 to a facility operated by the Department of Corrections when the minor turns 18 years of age." She said this sentence does not make sense and asked whether this is the intention for how the language would read. CHAIR CLAMAN answered that the initial draft of the amendment used the passive voice and Legislative Legal Services provided a reminder that an active voice needed to be used. MR. DAVIDSON stated that the new language would be in the active voice and, in his opinion, reads as a complete sentence. REPRESENTATIVE DRUMMOND said it is confusing and suggested the addition of commas, so that the sentence would read, "The department shall transfer a minor, subject to the provisions of AS 47.12.030(a) or 47.12.100, to a facility operated by the Department of Corrections when the minor turns 18 years of age." 1:47:39 PM REPRESENTATIVE EASTMAN asked what would be the worst thing that would happen if this amendment were not to pass. MR. DAVIDSON advised that this amendment is necessary for the bill to move forward. He related that several parties said it was confusing, including DOC that initially wondered how many minors DJJ would be transferring at age 18 if this bill passed. He said the intent is only minors that DJJ is holding on behalf of DOC, not minors that DJJ is holding under delinquency statute who may be 18 or 19 years old in some cases. CHAIR CLAMAN added that [the third of the three proposed changes in Amendment 2] is [to delete] "court shall hold" [and insert] "department shall request". He said this change recognizes that generally the court doesn't take these things up on its own, but they come up when somebody makes a motion. So, this change would put the responsibility on the department to make the motion for the court to review the status rather than the court scheduling a hearing on its own. 1:49:11 PM REPRESENTATIVE EASTMAN inquired whether he is correct in understanding that as currently drafted, HB 105, Version A, allows the court to intervene and gives that judge discretion, but Amendment 2 would remove this discretion. MR. DAVIDSON replied, "No." He explained that the first change on page 7, line 22, just clarifies that when talking about transferring custody to DOC, it is only talking about the waived youths, not the delinquent youths. 1:50:07 PM MR. DAVIDSON continued explaining Amendment 2. He said the second of the three changes is on page 7, lines 27-30. He said this change clarifies the circumstances that the department would request the court consider variance from this new requirement that auto waived minors be held in DJJ facilities. It is two parts. It currently reads that if there is no juvenile facility available, which is unclear because there are juvenile facilities in six communities around the state; but if a trial is being held in Dillingham, for example, it is wanted for the court to have the option to choose to have a waived minor held in the community where the trial is being held. [The Department of Juvenile Justice] wants to be very specific about that circumstance. The second circumstance is when a minor is inappropriate for a juvenile facility and the court must take into consideration the different circumstances of that minor, such as age and behaviors, as part of the court's finding. So, [the second change] clarifies the conditions that the department would seek a waiver from the new rules, and that the department is responsible for making that request and that the court is not responsible for tracking that information. 1:51:48 PM REPRESENTATIVE EASTMAN asked whether allowing the department to make that request results in the legal effect of now denying the court's ability to do that absent the department's request or if the department is slow in making a request. MR. DAVIDSON responded that he and Director Dompeling do not believe the courts would be intervening to decide where a minor should be held. He said Ms. Meade [General Counsel, Alaska Court System] might testify if asked that [the courts] would prefer the department make the request and then the courts would make a judgement. But, he continued, [the courts] are not in the business of deciding without request where a minor should be held. He recounted that in the previous hearing, DJJ said it believes that for most of these cases the division will be the one holding minors subject to the automatic waiver and the discretionary waiver, and that these variances would not be something DJJ would be seeking on a regular basis. The division is equipped to handle most of these cases, and it would be very rare that DJJ would seek a variance. 1:53:41 PM REPRESENTATIVE EASTMAN requested Mr. Davidson explain the third change proposed in Amendment 2 and to state what the practical consequences would be if [the amendment fails]. MR. DAVIDSON reviewed the third of the three changes proposed in Amendment 2, a change that would be made on page 8, line 12. He explained that this change is like the one aspect of the second change which emphasizes the department's responsibility to request a continuance of that decision by the court that a minor can be held in an adult facility. He related that this is something the court system requested of DJJ in terms of amendment to clarify that the court system is not going to be tracking where minors in DOC custody are being held, but if [DJJ] wants to have a variance under this process [DJJ] would request it of the court. It's an extension of the previous section where the department will request of the court to make a continuation of this finding. 1:55:04 PM REPRESENTATIVE DRUMMOND removed her objection to Amendment 2. There being no further objection, Amendment 2 was adopted. VICE CHAIR SNYDER returned the gavel to Chair Claman. 1:56:17 PM REPRESENTATIVE SNYDER moved to report HB 105, as amended, from committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 105(JUD) was reported out of the House Judiciary Standing Committee.