HOUSE FINANCE COMMITTEE February 27, 1998 1:45 P.M. TAPE HFC 98 - 46, Side 1 TAPE HFC 98 - 46, Side 2 CALL TO ORDER Co-Chair Gene Therriault called the House Finance Committee meeting to order at 1:45 p.m. PRESENT Co-Chair Hanley Representative Kelly Co-Chair Therriault Representative Kohring Representative Davies Representative Martin Representative Foster Representative Grussendorf Representatives Davis, Mulder and Moses were absent from the meeting. ALSO PRESENT Margot Knuth, Assistant Attorney General, Department of Law; Barbara Brink, Director, Public Defender Agency; Brant McGee, Public Advocate, Office of Public Advocacy. SUMMARY HB 16 "An Act relating to delinquent minors, to the taking of action based on the alleged criminal misconduct of certain minors, to the services to be provided to the victims of criminal misconduct of minors, and to agency records involving minors alleged to be delinquent based on their criminal misconduct; and amending Rule 19 and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska Delinquency Rules." HB 16 was HELD in Committee for further consideration. HOUSE BILL NO. 16 "An Act relating to delinquent minors, to the taking of action based on the alleged criminal misconduct of certain minors, to the services to be provided to the victims of criminal misconduct of minors, and to agency records involving minors alleged to be delinquent based on their criminal misconduct; and amending Rule 19 and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska Delinquency Rules." Representative Kelly, Sponsor, testified in support of HB 16. He noted that the legislation is the result of the 1995 Governor's Task Force on Juvenile Crime. House Bill 16: * Provides for dual sentencing of serious offenders; * Allows municipalities to seek civil court remedy for juveniles who violate municipal ordinances; * Allows the Department of Health and Social Services to draw upon the available resources of local communities or other entities who desire to get involved in juvenile crime issues; and * Reduces the burden on victims, by allowing police officers to report their input at preliminary hearings. MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW testified in support of the legislation. She is a representative of the Governor's Children Cabinet. She emphasized that the legislation allows local governments and communities to respond to low level juvenile offenses. She maintained that a response to all situations is more important than the degree of sanction an offense carries. A small response to a small offense can be extremely effective in changing a juvenile's course of conduct. The State's ability to intervene in less serious offenses has been reduced due to the allocation of resources. She maintained that there is a whole level of smalltime offenses that have not been getting responses. She emphasized that it is important to closely monitor juveniles that are at risk of becoming serious chronic offenders. The legislation allows dual sentencing of juveniles that would be sentenced under automatic waiver if the child were 16 or older and juveniles in cases where the offense is not serious enough to trigger an automatic waiver. The juvenile would receive a sentence comprised of the appropriate juvenile dispensation and a sentence in adult court. This makes the juvenile responsible for avoiding the adult consequence. The child would be motivated to comply with the court's order, which could include treatment, restitution, and good behavior. If the child comes before the court during the period of probation the court may impose the adult sentence. The adult sentence would include some period of incarceration. All of the child's due process rights would be protected. The child would have the right of indictment by grand jury, the right to a speedy trial, the right to be found guilty beyond a reasonable doubt, and the right to confront witness. Juvenile proceedings are more protective then adult proceedings. The minor has a right to a 12-person jury trial on misdemeanor offenses. Adults do not have this right. There are no constitutional problems with the provisions of the legislation. She estimated that two- thirds to three-quarters of the offenders would comply with all of the court orders. Those that do not would be at risk of becoming a chronic serious offender. Ms. Knuth reviewed provisions of the legislation. She noted that the legislation makes changes to the delinquency proceedings. The legislation also provides for adoption of a uniform rendition article. The presentation of hearsay would be allowed at temporary detention hearings in juvenile cases. This would be similar to adult grand jury proceedings. Juvenile records would be shared with federal law enforcement agencies. The Department of Health and Social Services would provide reports to victims or their insurance companies. A couple of delinquency rules are being repelled and moved into statute. In response to a question by Representative Grussendorf, Ms. Knuth clarified that a police officer would be allowed to relate statements by witnesses at the temporary detention hearing. In response to a question by Representative Davies, Ms. Knuth explained that adults have the right to indictment by a grand jury. This is often waived for a preliminary hearing. If a juvenile is going to be subjected to the dual sentencing provision, his or her case must be presented to a grand jury. Adults have the right to pretrial bail. Juveniles have the right to ask the judge for the least restrictive placement. At the time of trial, they would have the right to subpoena witnesses, confront witnesses, and be found guilty beyond a reasonable doubt. Juveniles always have the right to a 12-person jury. Adults only have this right in felony cases. Ms. Knuth observed that the legislation directs the judge to look at Title 12 criminal sentencing procedures when formulating the adult sentence. Juvenile sentencing goals in Title 47 are different. The judge will perform two functions. Adult proceedings have presumptive sentencing for certain offenses that do not exist for juveniles. Section 18 establishes when a juvenile could have the adult sentence imposed. The juvenile could only be subjected to the adult sentence if the conditions of section 18 were met. The juvenile would face the adult sentence if a subsequent felony offense were committed. They would also face the adult sentence if they did not comply with the conditions of a restitution order. Judges must take into consider the juvenile's circumstances when creating a restitution order. If the juvenile fails to satisfactorily complete rehabilitation programs or if they escape from a juvenile correction facility they would also come before the court for adult sentencing. In response to a question by Co-Chair Therriault, Ms. Knuth clarified that the legislation would affect 13 - 15 year olds who are too young to be subjected to an automatic waiver and older juveniles that are not charged with a serious enough offense to trigger an automatic waiver. She suggested consideration of dual sentencing as a substitute for automatic waiver in cases where the offense is below murder in the first degree. Representative Davies noted that the class of juveniles that would be affected is described on page 7 of the work draft. They include: A minor who is at least 13 years of age but had not reached the age of 16 years of age at the time of the offense and the offense is: ? An unclassified felony or class A felony; ? Sexual assault in the second degree; or The minor is 16 years of age at the time of the offense and the offense is: ? A felony that is a crime against a person and the minor has previously been adjudicated a delinquent under the laws of this state or substantially similar laws of another jurisdiction for a felony offense that is a crime against a person; or ? Sexual abuse of a minor in the second degree. Ms. Knuth agreed that there are two groups of juveniles that would be covered. Children 13 to 15 who have committed an offense that would be covered under automatic waiver if they were 16 years of age or older and 16 or 17 year olds who commit a felony crime against a person with a prior conviction would be covered. Ms. Knuth observed that the fiscal impact is the result of the need to house additional juveniles in adult facilities. The corresponding reduction in the juvenile facility is not translated as a positive figure in the Department of Health and Social Services. In response to a question by Representative Davies, Ms. Knuth discussed civil penalties. She observed that civil penalties would provide consequences for low level offenders and small offenses. For example, curfew cases could be subject to a fine. Action in civil court instead of criminal court would result in cost savings. Civil proceedings would not result in a loss of liberty or criminal record. She maintained that the use of civil sanctions would be more cost efficient and would achieve results in lesser offenses. She reiterated that providing consequences for even the smallest offense has a bigger impact than reacting more harshly to the more serious offenses. The legislation would allow the Department of Health and Social Services access to records of civil proceedings. Representative Davies questioned if parents would be responsible for fines assessed to juveniles. Ms. Knuth pointed out that fines could be paid from a juvenile's permanent fund dividend check. Fines should be based on the ability of the person before the court to pay. She stated that the fine might mean that the child mows someone's lawn for four weekends. She asserted that the point is not to be onerous but to provide some consequence. Representative Davies expressed the hope that the fine would move in the direction of the child earning the money to pay the fine rather than using the child's permanent fund dividend. Ms. Knuth noted that fines could usually be converted into community work service. She agreed that community work service would have more impact than decreasing someone's permanent fund dividend. Representative Davies requested more information regarding the issue of parental responsibility for a juvenile's fine. Co-Chair Therriault noted that the legislation could be broken down into separate legislative pieces. Ms. Knuth emphasized that the pieces need to be intertwined to maintain the intent of the Governor's Conference on Youth and Justice. BARBARA BRINK, DIRECTOR, PUBLIC DEFENDER AGENCY testified via teleconference on HB 16. She acknowledged support for the provision, under the proposed committee substitute, not to send juveniles 15 years and younger to adult institutions. The proposed committee substitute would only send juveniles 16 years or older to adult institutions. Ms. Brink stated that in order to support the legislation one must believe that treating children as adults is a more effective crime prevention tool. She maintained that studies have shown that juvenile treatment programs in Alaska have a higher success rate than in other states. She did not accept the premise that housing juveniles in adult jails reduces the crime rate. Ms. Brink maintained that the current system is already holding juveniles accountable. She noted that the state of Alaska is 37th in the nation in relation to juvenile crime rates. Alaska is number two in the country in regards to the number of children that are locked up and in the length of their sentence. She maintained that Alaska is already taking a very strong approach to juvenile crime. Ms. Brink pointed out that the state of Alaska already has the ability to waive juveniles into adult court. To her knowledge, the State has only lost one waiver petition in the last five years. Ms. Brink expressed concern that the legislation is broadly drafted. She observed that the legislation would pertain to juveniles who have committed sexual offenses. She emphasized that many juveniles who commit sexual offenses have been sexually abused. She stressed that juvenile sex- offender treatment programs are more effective than adult sex-offender treatment programs. She urged that these offenders be omitted from dual sentencing provisions. Ms. Brink maintained that the legislation is more punitive than adult provisions in regards to probation revocation. An adult can argue that there should not be additional jail time. Under the legislation, juveniles would face automatic jail time for some offenses and a presumption of entry into adult court in other cases. Juveniles would have the burden of proving that they should stay in the juvenile system. Ms. Brink discussed the Agency's fiscal note. She noted that few juvenile cases are contested. She emphasized that all participants in the juvenile system are in partnership. A combined juvenile/felony trial would be more expensive. Many of the cases would proceed to trial. Felony cases go to trial a disproportionate amount of time compared to other cases. In addition, there would be an adult sentencing process. She maintained that the process would be more costly and time consuming than filing a petition to waive someone under the current system. She observed that the petition process would be costly. Ms. Brink expressed concern with section 36, which would allow hearsay at the temporary detention hearing. She emphasized that an adult has a constitutional right to bail. Juveniles have a right to the least restrictive placement. The least restrictive placement could be an institutional placement. She urged that that section 36 be deleted. She emphasized the difficulty of determining the credibility of a witness who is not present. Ms. Brink discussed restitution. She noted that current Alaska statutes order a judge not to consider someone's ability to pay. Ms. Brink expressed concern with the constitutionality of the legislation. She noted that prosecutors have the discretion to choose who will have a petition charged against them. There is no judicial review or standard. She did not know if parents would be held responsible for their children's fine. Ms. Brink emphasized that a child would face long sentences under adult presumptive sentencing. (Tape Change, HFC 98 -46, Side 2) BRANT MCGEE, PUBLIC ADVOCATE, OFFICE OF PUBLIC ADVOCACY testified via teleconference on HB 16. He expressed concern with the unfettered discretion of prosecutors and juvenile probation officers. He discussed a theoretical case involving a 13-year old who participated in a robbery of a pizza deliveryman. The offense could be charged as a class A or B felony depending on the circumstances. If it were charged as a class B felony it would go through the juvenile system. The focus would be on what should be done to reform the child. If it were charged as a class A felony it would proceed to the grand jury in a manner much like an adult proceeding. He maintained that there would be little room for negotiation. Trial would be likely. If there were a gun on the back seat of the car where the child was located, he would be eligible for a presumptive term of 7 years. On a presumptive term of 7 years he would have to serve 4 years and 8 months. If he fails to satisfy the program set by his juvenile probation officer he would return to the court. If the judge imposes the remainder of his sentence he would be housed in a juvenile facility until he is 16 at which time he would enter an adult facility. He would be released from adult prison just before his 19th birthday. Mr. McGee stated that he could not think of a better way to manufacture criminals than to place juveniles into adult prison and then release them just short of their 19th birthday. He emphasized that executive branch officials would have unfettered discretion in terms of the charges and the revocation proceeding. He stressed that the legislation represents a serious shift in how juvenile offenders are handled. Representative Davies referred to page 12, lines 11 - 13, "however, the sentence pronounced under this paragraph must include some period of imprisonment that is not suspended by the court." Ms. Brink stressed that this provision is more punitive than the adult process. She reiterated that juveniles would have to serve some adult jail time. An adult who has been convicted of the same offense does not necessarily have to do jail time. Representative Kelly provided members with Amendment 1 (copy on file). He noted that the amendment makes technical changes. Representative Kelly MOVED to ADOPT Amendment 1. Ms. Knuth explained that the amendment corrects a problem with the deletion of a closing coma. The second part of the amendment deletes a redundant phrase "information regarding a case involving a minor". There being NO OBJECTION, Amendment 1 was adopted. Representative Davies provided members with Amendment 2 (copy on file). Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Davies explained that the amendment would remove the repetitive phase "or the entity selected by it". The amendment would add a new section that allows the Department to delegate its authority to another entity. Representative Kelly requested that the amendment be held to make sure that there are no problems with sovereignty issues. Ms. Knuth clarified that the Department of Health and Social Services would only want to delegate some of its authority. The Department does not want to delegate the authority to file a petition. Only the Department of Health and Social Services would be able to file a petition to initiate delinquency proceedings. This is a core governmental function of the Department of Health and Social Services. Representative Davies WITHDREW Amendment 2. Co-Chair Therriault noted that a proposed committee substitute would be drafted to include Representative Davies' proposed Amendment 2 and Amendment 1, which was adopted by the Committee. HB 16 was HELD in Committee for further consideration. ADJOURNMENT The meeting adjourned at 2:50 p.m. House Finance Committee 8 2/27/98pm