HB 7 - VICTIM/JUVENILE OFFENDER MEDIATION Mr. Joel Loundsbury presented CSHB 7 on behalf of Representative Brian Porter. He said the bill establishes community dispute resolution centers (CDRC). These centers would be staffed by trained volunteer mediators in an effort to bring juvenile offenders and their victims together to obtain an agreement on a restitution contract. He said this process is beneficial for both the offenders and the victims as well as the community. The offenders can make amends in a participatory situation. Often the offenders' parents are involved and the process stresses personal responsibility and fulfillment of the restitution agreement. Victims benefit by being able to confront the offender with the personal impacts of their crime and also by tailoring an agreement to suit their specific losses and needs. Victims also benefit by having the dispute resolved in a timely manner with their maximum involvement. He said the community benefits by a timely and meaningful response to the crime. He stated that volunteers have direct impact on youth in their community and juveniles who go through this process commit fewer future crimes. CHAIRMAN TAYLOR asked about offenders who do not comply with restitution orders. MR. LOUNDSBURY assumed they'd go to court but deferred this question to the department. CHAIRMAN TAYLOR said the problem with that is time. By the time offenders are turned over to the probation officer, much time has likely passed and the case loses precedence to new cases. He believes in 90 percent of these cases nothing at all may happen to the offender. He said this system has been tried but because no pleas were obtained up front it amounted to a suspended prosecution and there were no "teeth" to it. He said the lack of up-front adjudication made it difficult finalize cases as offenders can later request their right for a jury trial and this can drag on for months. SENATOR PARNELL asked if the written mediation agreement was intended to resolve all issues that could be raised in a civil action or if it was strictly criminal. MR. LOUNDSBURY said he was unable to answer these questions. SENATOR ELLIS joined the meting at 1:39. MR. ROBERT BUTTCANE, a juvenile probation officer temporarily working with the Division of Family and Youth Services (DFYS), agreed that the situation Senator Taylor spoke about will occur but there is a mechanism that allows for an admission of illegal conduct. He said an offender must enter an admission of illegal conduct to participate in a diversionary program such as a community dispute resolution program. Before the offender is referred to the program, they have entered an admission or plea of guilt as a condition of beginning mediation. This way if the offender withdraws from mediation the juvenile system is able to move the proceeding into court. He says mediation is generally highly successful. CHAIRMAN TAYLOR noted the arrival of SENATOR PEARCE at 1:41. CHAIRMAN TAYLOR asked why we need to create another court system for kids when we already have one. MR. BUTTCANE said this is an expansion of an existing diversion option. He added 70 percent of juveniles arrested now are processed through this system after being screened by a probation officer. He explained this system includes community service, dispute resolution, anti-shoplifting programs, drug and alcohol treatment programs, anger management courses and a youth court. He expressed his feeling that this is the most beneficial system available to the victim, saying it is the quickest way for them to recoup their losses. The court system is slower and more expensive and this program can resolve an issue in approximately four to eight weeks that might take three to six months in court. He added that this program has taken cases from the Superior Court after a disposition order has been entered. SENATOR PARNELL asked again where the teeth are. He admitted he is used to the civil law context and was looking for the equivalent of a promissory note or a confession of judgment, something to help in case the offender fails to pay. He understands things are different with minors but wants an idea of the interplay between the criminal and the civil actions. MR. BUTTCANE mentioned that all civil remedies are still available to the victim and this would not negate any of those options. When the juvenile meets with the probation officer, they sign an admission as well as an agreement to participate in mediation and cooperate with the terms negotiated with the victim. If the offender does not follow through with this, the department can petition them into court and begin the formal adjudication process with the intent of getting a court order for payment of restitution. He said Permanent Fund Dividends can be committed to the victim also. SENATOR PARNELL asked which juveniles would choose this. MR. BUTTCANE said most young offenders chose this when given the option. CHAIRMAN TAYLOR asked where this program is available and MR. BUCATEN replied it is currently operating in Fairbanks, Anchorage and the Mat-Su valley. Each program has a different focus and these three are the only he is aware of but there may be more. SENATOR PARNELL inquired if the department had calculated what kind of savings can be achieved and MR. BUCATEN replied it has not been calculated. He said this is more of a cost avoidance issue and the types of cases that go to mediation would not likely lead to correctional detention, only a lengthy expensive use of the court system. He believes, more importantly, this is a way to keep kids out of the formal system while still holding them accountable and restoring the victim. SENATOR PARNELL asked what the funding source for this is and MR. BUTTCANE replied that the state receives pass-through federal funding through the delinquency prevention budget request unit (bru). He said the facilities in Mat-Su and Anchorage have received some of this money through DFYS. SENATOR PARNELL explained he was asking finance-related questions since the bill was waived through House Finance. He asked if the witness anticipated expansion of this type of program. MR. BUTTCANE replied yes, as he thinks it is an effective intervention and prevention tool and would like to see more pass- through federal dollars. MS. KATHLEEN HARGRAVES, a former youth services worker, managed a program like this in Colorado and reported it works well. Her program targeted first time offenders and the early intervention led to a very low recidivism rate. She explains this type of program personalizes crime and forces the offender to face the consequences and see the effects of their crime. It shows them the victim is a real person and in her experience this was very effective. She said she believed the offender admitted guilt during the process, allowing the complaint to be sent back to the court quickly if resolution did not occur. She characterized this as a "gatekeeper" and thinks it will work and free up court time and resources as well as correctional beds. MS. ANGELA SALERNO, representing the National Association of Social Workers, called this program a proactive, innovative, balanced way to enhance public safety and increase accountability of the offenders. She cited studies that conclude this type of program reduced recidivism in juvenile offenders. She said there are more than 200 programs like this throughout the U.S. and Canada and they are a low cost, community based and successful alternative to costly incarceration. MS. LINDA JOHNSON, representing the Anchorage Youth Court, said youth courts are another type of diversionary program. She specifically addressed section three of the bill relating to immunity after saying her program has recovered 16,000 dollars in restitution for victims in the past two years. She reported they have processed 900 cases in two years and said only 13 percent of those juveniles go on to reofffend. She said Anchorage youth court is one of many around the state; there are others in Fairbanks, Mat-Su, Kenai, Homer, Kodiak and one is being set up in Nome. She said youth courts can take a percentage of case and relieve the burden on DFYS, allowing them to focus on serious and repeat offenders. She professed that youth courts are run on a shoestring budget and to defend themselves against a lawsuit would decimate them. Anchorage youth court believes immunity from lawsuits would help tremendously and allow them to attract more volunteers. She stated that some community business leaders had volunteered to act as mentors for some defendants and she would like them covered by the immunity. MS. JOHNSON said Anchorage youth court uses CDRC services and they have found most cases can be negotiated within six weeks and referred back to DFYS with no further action necessary. CHAIRMAN TAYLOR asked what the Anchorage youth court budget is. MS. JOHNSON replied it is $250,000 funded by the municipality, federal grants and some private donations. She said this cover their 500 cases a year. CHAIRMAN TAYLOR asked if she knew what the budgets of the other youth courts were? MS. JOHNSON said they are very small but also take fewer cases. CHAIRMAN TAYLOR asked if anyone has ever sued a youth court and MS. JOHNSON said she was not sure. CHAIRMAN TAYLOR said this is typical of bills received from the house; bills that ask for immunity from something no one has ever been sued for. MS. JOHNSON said they could do more in the community if their volunteers were protected. CHAIRMAN TAYLOR asked how far she proposed to extend the immunity and she replied to cover volunteers. CHAIRMAN TAYLOR gave an example in which a volunteer accidentally runs someone over with a truck and asked if the state be immune. MS. JOHNSON said that would be decided in court but CHAIRMAN TAYLOR agrued it would not go to court due to the immunity. They discussed other examples in order to define the limits of this requested immunity. MS. JOHNSON said her main concern was people hitting one another and the fact that they have no budget to fight court cases. CHAIRMAN TAYLOR said this provision apparently immunizes the actions of youthful offenders sent out to work on restitution. MS. JOHNSON said in fact it only applies to official acts performed in their capacity as an agent of the youth court. CHAIRMAN TAYLOR said he was trying to determine the risk she wanted immunity from and she repeated her prior concern regarding someone hitting someone. CHAIRMAN TAYLOR characterized hitting someone as a willful or wanton act and MS. JOHNSON agreed it would be on the part of a defendant but not on the part of a member of the board of directors or an employee of the youth court. She said this is why she wanted immunity. CHAIRMAN TAYLOR said the youth court should not be responsible for the actions of a person in a situation they have been placed in by the court? MS. JOHNSON said no, so long as the court accepted the case in good faith. CHAIRMAN TAYLOR replied that a million things happen in good faith every day; they are called accidents and people are injured by them. He said personally he thinks this immunity goes too far but would like to hear if any youth court had any experience with liability. MS. JOHNSON said it would only take one time and there will be no more youth court, so they are trying to prevent it. CHAIRMAN TAYLOR replied that maybe people won't do something so stupid it will result in injury, whether it is done in good faith or not. CHAIRMAN TAYLOR said this is why people carry insurance, to recompense victims of accidents. MS. JOHNSON replied that Anchorage youth court does carry insurance. CHAIRMAN TAYLOR asked what the cost is but MS. JOHNSON was not sure. CHAIRMAN TAYLOR asked if they would need insurance if granted this immunity and MS. JOHNSON said she did not think the immunity would cover someone falling and breaking a leg on their premises. She said they also would need to continue carry auto and Directors and Officers insurance. CHAIRMAN TAYLOR said this Directors and Officers insurance was what he wanted to know about and would appreciate knowing what the cost is. MR. BLAIR McCUNE, Deputy Director of the Public Defender Agency, said the agency favors the bill. In his experience, this process works in Anchorage. He referred to section two of the bill that allows the diversion to this type of program before a plea is entered and pointed out that in section three the diversion can also be pursued after a plea is entered and the child has been adjudicated a delinquent. He said this gives the court the authority to put some teeth into the process. He stated that this type of program has informally existed as far back as he has been in practice through probation officers adjusting cases. He believes the youth court formalizes this process in a cost-effective manner. He added that there is a time limit of six months duration for any diversion program and an offender must waive the right to a speedy trial. Since there is no speedy trial clock ticking, if the diversion program is not successful the child can be brought back to court with no time lost. MR. McCUNE said the biggest consideration in this type of process is screening. He said CDRC's are cautious and screen closely due to the fact that they want the victims to be satisfied with the process. CHAIRMAN TAYLOR said probation officers decide whether or not to file a petition in response to an incident and this is in itself a huge decision. He added multiple offenses can occur before an officer even files a petition. After a petition is filed and a preliminary hearing is held diversionary programs can be employed. CHAIRMAN TAYLOR asked if, in most instances, they opt to stop the clock in this way and get the offender into a suitable diversionary program. MR. McCUNE agreed that is how it happens and he finds it successful. He added this works better with kids than adults and adds to the resources the juvenile probation officers have. He said it is a judgment call and even though the speedy trial provision is waived if the case later goes to court there may be witness problems and other difficulties. TAPE 98-5 SIDE B Number 001 CHAIRMAN TAYLOR asked if the process is akin to triage. He wanted to know if overall more kids may sit down face to face with an authority figure and be reached through this method. MR. McCUNE said that is a tough question. He said it may be a "net- widening" kind of thing, but his office is seeing a big increase in delinquency adjudications, indicating more serious crime is being committed by juvenile offenders. CHAIRMAN TAYLOR restated the fact that anything that gets a kid in contact with an authority who will follow up on the offense is beneficial. He expressed frustration with additional systems overlaid onto the original system that no longer works. He would like to find a way to clean up the existing system rather than create something new. He said this idea hit him when the people of Ketchikan asked him to create a second alternative school, an alternative to the alternative school. CHAIRMAN TAYLOR expressed further frustration at his experience of seeing young people show up in court at age 16 for a serious crime when they have multiple juvenile offenses that were never dealt with. MR. BOB KNIGHT from Fairbanks spoke in favor of the Victim Offender Mediation Programs (VOMP). He also favored protection from liability for those participating in the programs. Like government workers and legislators, these people need protection when doing their jobs. They are not protected from stupidity or accidents. He believes this protection is necessary and would allow for the expansion of these useful programs. He applauded the Anchorage youth court, saying he is impressed with the concept as well as the commitment of those involved. He himself has been involved in the Anchorage youth court for 36 years, utilizing skills he originally learned in the marine corps. He listed his credentials, cited the zero fiscal note and urged all members of the committee and the legislature to cosponsor this bill. He called mediation a bipartisan idea whose time has come. He said this overlay is important as the old system is not working and this process is an historically successful means of dispute resolution. He cited established criteria for effective mediation: that it is voluntary and confidential. He said it is effective due to the fact it is flexible and communicative and humanizes crimes for the perpetrators. It is a low cost civil process that allows speedy closure for the victims and saves time and money for the government. He said volunteers are trained as professional neutrals, not advocates and could be effectively employed here as they are by the federal government and other groups. He concluded by urging the personal involvement of all committee members in this process and requesting this bill pass out of committee. CHAIRMAN TAYLOR asked why the words willful or wanton misconduct were used instead of negligent or grossly negligent or reckless. MR. KNIGHT replied he was not involved in the drafting but would comment personally. CHAIRMAN TAYLOR said he had no problem with a level of immunity for those acting in a quasi-judicial manner of rendering decisions but thought it might be limited to discretion, not extend to cover bad acts. MR. KNIGHT agreed it could be modified to reflect discretionary immunity only. He thinks the present wording is just the flip side of this. CHAIRMAN TAYLOR agreed and said this was probably the intent. He is uncomfortable with how the present broad wording covers everyone. MR. KNIGHT replied that the question is if it should be that broad in order to cover possible tort actions against the board of directors. He believes it is intended to protect the whole system from cases in which accidents happen to volunteers who are carrying out legitimate activities. CHAIRMAN TAYLOR made the point that standards of negligence should be applied. MR. KNIGHT agreed that would be appropriate. Number 421 SENATOR PARNELL said his question was regarding the scope of conduct. He believes a panel rendering a decision on a case should enjoy a type of judicial immunity. He asked if the volunteers are acting on behalf of defendants and being granted immunity? He wondered exactly who would be granted immunity from what type of acts. He thinks the language is so broad it extends beyond rendering decisions and this concerns him. MR. KNIGHT replied that there are two aspects of this, the judicial aspect relating to the youth court and the work aspect. He compared the work side to a combination of executive and judicial branch activities including the set up and supervision of programs. He asked then if they should have immunity comparable to that of state employees. He believed this was the intent. CHAIRMAN TAYLOR gave an example of an accident happening while a work crew, working in good faith, incurred some type of accident. CHAIRMAN TAYLOR assured MR. KNIGHT that that instance would not be covered under discretionary immunity, it would be subject to civil liability. MR. KNIGHT agreed that it is outside the scope of discretionary liability. He asked how the executive branch deals with this type of liability. CHAIRMAN TAYLOR replied that it is called risk management and the state self-insures against it so they can hire a bunch of attorneys and if necessary even pay judgments. He added the legislature appropriates money for this every year but does not grant themselves total immunity. MR. KNIGHT asked if an appropriation should be made for this coverage or not and CHAIRMAN TAYLOR advised him to please think about it and get back to them. MS. SHARON STURGES, Director of the CDRC, said her center carries both auto and general liability insurance. She thinks this would cover things if the standards of negligence were applied in relation to an accident. She perceived the type of immunity sought in this bill would be for a discretionary act performed by the board or mediators in the course of their service. She said in section four of the bill there are criteria that need to be adopted by the board for the program to be recognized under statute. She believes the concern is that even if screening is rigorous and strict there may be a problem. She thinks this would apply to policy makers and those who implement policy. MS. STURGES said these programs provide an essential service for the victim with no money from the state. She said her program recovered $20,000 in restitution over the last two years and have a 90 percent compliance rate for restitution agreements. She restated previous arguments that these programs provide a valuable service, relieve an overburdened system, and use far fewer resources. She said the release form offenders sign after a mediation agreement provides teeth to use in case of noncompliance. This release allows the contract to be sent to the court. MS. STURGES sees this as another service to the victim, relieving them from the necessity of filing a civil action. It is part of the court record and can be enforced. This was recently adopted and provides a quick remedy for the victim and a good record for the probation officer. She says the center keeps in close contact with probation officers in both formal and informal cases. She concluded with statistics showing their non-recidivism rate to be 98 percent compared to the general rate of 50 percent or so. CHAIRMAN TAYLOR understood the statistics but commented that they are generated in large part by the screening they are doing. He said they are not taking "the bad ones" and that might change those numbers. MS. STURGES replied that 25 percent of the case load are probation level cases and CHAIRMAN TAYLOR added that these cases are also screened by the probation officers before they ever get to the program. MS. STURGES agreed but said they have only rejected two cases and their criteria are simply acceptance of responsibility and willingness to negotiate. MR. PATRICK CUNNINGHAM, professor at the University of Alaska Anchorage and member of the McLaughlin Youth Center Advisory Board, spoke in support of the legislation. He also said this process is a service to victims and a low cost, community based alternative. He said they capture funding from the municipality of Anchorage, community businesses, DFYS and private donations. They also rely heavily on volunteers. He said there are many similar programs in the U.S. and Canada and they produce durable contracts. He says they are successful in monitoring offenders, empowering victims and fostering community partnerships that afford all parties involved a high degree of satisfaction. He urged the committee to move the bill. MS. SUZANNE DiPIETRO, a CDRC board member and volunteer mediator made herself available for questions and CHAIRMAN TAYLOR asked if the committee could be provided a copy of the operating budget and funding sources for the CDRC and youth court. Number 132 SENATOR PARNELL expressed continued concern about the immunity issue. He believes these programs could be very effective but think they need a closer look. He also thought more scrutiny of the zero fiscal note was in order but said that could be left to the finance committee. He thinks that pass through funds should be reflected in the fiscal note. CHAIRMAN TAYLOR agreed with those concerns and added he'd like further information regarding the interplay between the existing agencies. He likes casting the net wider and delivering the quickest, broadest response. He said the committee will work on the bill and await further information.