HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE January 23, 1997 3:04 p.m. MEMBERS PRESENT Representative Con Bunde, Chairman Representative Joe Green, Vice Chairman Representative Al Vezey Representative Brian Porter Representative Fred Dyson Representative J. Allen Kemplen Representative Tom Brice MEMBERS ABSENT All members present SENATE MEMBERS PRESENT Senator Gary Wilken COMMITTEE CALENDAR *HOUSE CONCURRENT RESOLUTION NO. 4 Relating to records generated and maintained by the Department of Health and Social Services. - HEARD AND HELD *HOUSE BILL NO. 6 "An Act amending laws relating to the disclosure of information relating to certain minors." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HCR 4 SHORT TITLE: SEPARATE RECORDS FOR DELINQUENTS & CINA SPONSOR(S): REPRESENTATIVE(S) KELLY,Phillips,Dyson JRN-DATE JRN-DATE ACTION 01/13/97 21 (H) READ THE FIRST TIME - REFERRAL(S) 01/13/97 21 (H) HES, FINANCE 01/14/97 59 (H) COSPONSOR(S): PHILLIPS 01/15/97 78 (H) COSPONSOR(S): DYSON 01/23/97 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 6 SHORT TITLE: RELEASE OF INFORMATION ABOUT MINORS JRN-DATE JRN-DATE ACTION 01/13/97 28 (H) PREFILE RELEASED 1/3/97 01/13/97 28 (H) READ THE FIRST TIME - REFERRAL(S) 01/13/97 28 (H) HES, JUDICIARY 01/14/97 59 (H) COSPONSOR(S): PHILLIPS 01/23/97 (H) HES AT 3:00 PM CAPITOL 106 WITNESS REGISTER BRUCE CAMPBELL, Legislative Aide to Representative Pete Kelly Alaska State Legislature Capitol Building, Room 411 Juneau, Alaska 99801 Telephone: (907) 465-2327 POSITION STATEMENT: Testified on CSHB 6(HES) and HCR 4 ANGELA SALERNO, Executive Director National Association of Social Workers, Alaska Chapter 525 Main Street Juneau, Alaska 99801 Telephone: (907) 586-4438 POSITION STATEMENT: Testified against CSHB 6(HES) CHRIS CHRISTENSEN, Staff Counsel Office of the Administrative Director Alaska Court System 820 West Fourth Street Anchorage, Alaska 99501 Telephone: (907) 264-8228 POSITION STATEMENT: Testified on CSHB 6(HES) and HCR 4 MARGOT KNUTH, Assistant Attorney General Central Office Criminal Division Department of Law Representing the Governor's Children's Cabinet P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-4338 POSITION STATEMENT: Testified on CSHB 6(HES) L. DIANE WORLEY, Director Central Office Division of Family and Youth Services Department Of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-3191 POSITION STATEMENT: Testified on HCR 4 and CSHB 6(HES) BOB BUTTCANE, Juvenile Probation Officer III Anchorage Intake Unit Division of Family and Youth Services Department of Health and Social Services 2600 Providence Drive Anchorage, Alaska 99508 Telephone: (907) 562-2285 POSITION STATEMENT: Testified on CSHB 6(HES) ACTION NARRATIVE TAPE 96-2, SIDE A Number 0000 CHAIRMAN CON BUNDE called the House Health, Education and Social Services Committee meeting to order at 3:04 p.m. Members present at the call to order were Representatives Bunde, Vezey, Porter, Dyson, Kemplen and Brice. Representative Green arrived at 3:06 p.m. Number 0055 HB 6 - RELEASE OF INFORMATION ABOUT MINORS HCR 4 - SEPARATE RECORDS FOR DELINQUENTS & CINA CHAIRMAN BUNDE announced that the committee would address two related bills. The first was HB 6, "An Act amending laws relating to the disclosure of information relating to certain minors." The second bill was HCR 4, Relating to records generated and maintained by the Department of Health and Social Services. He said these issues are related and the committee would discuss them in their relationship as it goes along. CHAIRMAN BUNDE said that Representative Pete Kelly, sponsor of both bills, is still quite ill. He noted his staff was in attendance. He said the discussion of the bills would begin today and be continued on Tuesday, January 28, 1997. Number 0166 BRUCE CAMPBELL, Legislative Aide to Representative Pete Kelly, said there was a proposed committee substitute for HB 6. Number 0273 REPRESENTATIVE JOE GREEN made a motion to adopt the proposed committee substitute. Hearing no objection, CHAIRMAN BUNDE announced that CSHB 6(HES) was before the House Health, Education and Social Services Committee. Number 0301 MR. CAMPBELL read from the sponsor statement. He said HCR 4 gives the Department of Health and Social Services (DHSS) legislative directive to restructure the Division of Family and Youth Services (DFYS). This restructuring will split the records relating to child abuse from the records of criminal acts committed by a minor. MR. CAMPBELL said the split of staff and personnel protects the agency from the loss of most of the federal funds now received for out-of-home placement. He said he believes about $7 million in federal funds is expended each year for out-of-home placement of abused children. The separation protects these funds used for Children in Need of Aid (CINA) kids. MR. CAMPBELL said getting kids out of dysfunctional homes is an important option for breaking the cycle of violence with kids who commit criminal acts. Foster care is a valuable component of the juvenile justice system. MR. CAMPBELL said a portion of the fiscal note attached replaces the federal funds with state dollars, it assumes that federal funds will be lost once records are released for delinquent children. A smaller portion of the fiscal note effectuates the organizational restructuring and the costs associated with that. However, the experts from DHSS are far better able to explain these details and their relationship to federal law and federal code. Number 0378 MR. CAMPBELL said CSHB 6(HES) builds upon HCR 4. It provides for the release of information about the outcome of agency actions when a child admits guilt and agrees to a restitution plan as well as the outcome of agency court records when a child is found delinquent. MR. CAMPBELL said the disclosure of the outcome of agency and court actions is limited in CSHB 6(HES) in two ways. First the bill focuses on repeat offenders, rather than first time misdemeanants. Secondly the bill releases only a given set of information about the minor, not the complete file, psychological report, family background investigation, previous child abuse records, etc. MR. CAMPBELL said the focus on repeat offenders recognizes that the vast majority of kids who are caught committing a criminal act do so only once. They wake up, say, "Hey, this isn't me," and are never seen again inside the criminal justice system. MR. CAMPBELL said repeat offenders appear to need more attention than the current system provides. To prevent them from developing a habit or lifestyle of crime, they need additional community involvement. The concept of confidentiality was developed to protect kids from being labeled criminals. Unfortunately, confidentiality is used by a few kids as cover for their criminal actions. They are able to commit serious crimes, then walk about masked from their elders and their peers. This invisibility can act to reinforce their sense of invincibility. Judges are telling me that they use confidentiality to build a following, not unlike a "Billy the Kid" or "Jesse James" phenomenon. This braggadocio and "see what I can do" fuels their desire to live outside society's rules. MR. CAMPBELL said kids need clear limits. Negative attention has its own role in defining limits to civil behavior. I do not believe that community knowledge of a minor's criminal acts is harmful. He said he believed it allows the community to interact naturally to help heal the wounds and troubles of youth today. Certainly it helps other children say no when they are pressured to join a peer in a criminal act. MR. CAMPBELL said kids do dumb things. Even dumber is to get caught. But dumbest of all is to catch a kid committing a crime and then ignore it. The professionals are not ignoring the kid, but you and I are kept ignorant of these acts, and of the needs of our troubled youth by the existing confidentiality system. Number 0518 CHAIRMAN BUNDE asked if there were any questions from committee members. Number 0526 REPRESENTATIVE TOM BRICE clarified that questions could be directed towards HCR 4 and CSHB 6(HES). He asked, specifically, how much DHSS would lose if they did not divide the records. MR. CAMPBELL said a spokesperson was here from DHSS and they could better answer that question. Number 0574 REPRESENTATIVE BRICE referred to CSHB 6(HES), Section 4, which would make notification of victim mandatory rather than voluntary. He asked if there were certain circumstances where a victim might not want to be notified. He asked if it would be appropriate to add some language to give the DHSS some leniency so that they would not be legally and statutorily required to notify the victim. Number 0635 MR. CAMPBELL said Representative Kelly could answer that question on Tuesday. He said the language in CSHB 6(HES) could have been inserted to comply with the constitutional requirement to provide information to victims. He said there was a constituent request to telephone victims with the information, so as to not overburden the staff with having to answer every question in writing. He clarified that Representative Brice's question specifically regarded the deletion of "upon the request of a victim." Number 0708 REPRESENTATIVE BRICE said his question was directed to shifting the requirement to have the state notify the victim in cases where the victim does not want to be notified. He expressed concern over what adjustment meant. Number 0741 MR. CAMPBELL said he would give his understanding of the term adjustment. He said the numbers that he has heard give "12, 1,400" referrals to an agency in Fairbanks. He said a vast majority of those are first time offenders and those people are not seen again. He said a larger number of them are adjusted without having to go to court. He said the intake officer sits down across from the minor and the minor's attorney. When the minor agrees that he was guilty, then the situation is discussed. Conclusions are drawn as to punishment such as preforming community service, restitution if appropriate, writing a letter to the victim or any of several other things that the minor suggests. He said that is part of the adjustment process. MR. CAMPBELL said the cases where the minor or the minor's attorney wish to continue the debate further and the evidence is still sufficient the DHSS may go all the way to court and prosecute in court and file a petition. He said the adjustment proceeds the petition process. He said, as he understands, out of "12 or 1,400" only 200 to 300 get to the petition process. Number 0822 REPRESENTATIVE BRICE asked if any other state kept these records open. Number 0834 MR. CAMPBELL said he did not have accurate numbers on that. Number 0850 CHAIRMAN BUNDE said that he assumed the committee's questions would go to Representative Kelly. REPRESENTATIVE BRICE said it would be interesting what effect that policy has had if it has been done in other states. Number 0865 REPRESENTATIVE J. ALLEN KEMPLEN asked why only one offense was pardoned in CSHB 6(HES). He said our society has adopted a "three strikes you're out" approach to these types of issues. He asked why there was a variation from what is being developed nationally as public policy and why one offense is merited rather than three. He asked if it could be changed to three. Number 0932 MR. CAMPBELL said the concept of CSHB 6(HES) was developed through a constituent interest. He said, informally, they refer to this bill as the Dan Osborne tiered system because one of the constituents in Fairbanks suggested a three tiered system. In the proposal the first time offense would be confidential, the second offense would result in the release of the parent's name and the third time offense would result in the release of both the parent's name and the minor's name. He said the drafting attorney said there would be constitutionality problems with releasing the names of the parents, people who did not really commit a crime. He said the concept of a tiered system is certainly a point for discussion and added that Representative Kelly would welcome input. MR. CAMPBELL said CSHB 6(HES) is the cleanest system to start drafting on and it is the system that their constituents have said they liked the best. Number 0985 REPRESENTATIVE KEMPLEN said he represents, District 16 which includes Fairview and Mountainview in Anchorage, which have a reputation of being very rough neighborhoods. He said he has been active in the Fairview community patrol and has spent time, at the neighborhood level as a citizen volunteer, in public safety. He said, although he is not a trained professional, he has observed that there are different levels of juveniles. He said there are juveniles that seem to go towards the more hard core activity, gang related activity. He said he could see those youth taking the publication of their information as kind of a badge of honor, a rite of passage into their gang. Other kids might say, "Hey, you ain't nothing buddy until you get your name published in the paper. This is the threshold that you got to pass before you are a member of our gang." He said his concern is that publication would contribute to that type of mentality prevalent in those hard core juveniles. He asked if Mr. Campbell could give him some guidance regarding this concern. Number 1102 MR. CAMPBELL said this issue came up in a discussion with some Fairbanks judges and said they had just the opposite approach to it. The judges perceived that confidentiality allowed the mind set that Representative Kemplen described. He said the kids could start bragging about what they had done far more then if other people knew about it. He said the release of information not only carries with it the possibility mentioned by Representative Kemplen, but also carries with it the ability of other minors around them to look around and say, "Wait a minute my parents don't like this or other elders that they respect." He said the kids will see a negative reaction and they will react accordingly. He said the secrecy in the process allows the serious, hard core kids to truly cover their tracks and develop, within their peer group, a bragging "Billy the Kid" following. REPRESENTATIVE GREEN referred to page two of CSHB 6(HES) where a second misdemeanor was treated in the same manner as if it were a crime that would be punishable as a felony. He cited a story where he innocently was grouped with college students who were arrested for a noise violation. He expressed concern that if an innocent youth were caught twice, his and his parent's name would be published in the same vein as someone who the first time had been carrying a knife, the second time carrying the gun. He said he did not think, as a society, we wanted to link those type of crimes. Number 1238 MR. CAMPBELL said yes if, as a youth, Representative Green pleaded guilty and if the case was formally adjudicated or it went through a court system and he was found guilty with a previous misdemeanor. He said a violation or a lower level crime is not covered in CSHB 6(HES). He said he is not sure if noise is a misdemeanor or a violation. Number 1269 CHAIRMAN BUNDE said the key is whether or not you plead guilty or had been found guilty. REPRESENTATIVE GREEN said it was his understanding that if the case has not been adjudicated, it has not actually gone to trial. Number 1283 MR. CAMPBELL said if you start at Section 2 of CSHB 6(HES), you are talking about those records from a court dispositional order which means that you have been found adjudicated delinquent. REPRESENTATIVE GREEN said he understood. MR. CAMPBELL said the portion that was in the original bill, not in CSHB 6(HES), dealt with arrest records. He said arrest is not dealt with in CSHB 6(HES). Number 1343 ANGELA SALERNO, Executive Director, National Association of Social Workers (NASW), Alaska Chapter, said they have 155,000 members nationwide and 460 members in Alaska. She said NASW strongly opposes CSHB 6(HES) and does not recommend its passage. She said these proposed amendments to the Alaska Children's Code will fundamentally and dramatically change the juvenile justice system in the way that we have structured it. MS. SALERNO said confidentiality of juvenile records provides a certain protection for youth, protection that they need in order to successfully rehabilitate them, and prevent further crime. She said this is the mission of the juvenile court and has been since its inception. The other part of her concern is that there is no proof that this measure will work as Representative Brice referred to earlier. She said this is a new idea in juvenile justice and she has not found, in her studies, any research to back up such a dramatic measure. She said NASW believes that breaching confidentiality for minors will result in stigmatization of the minor, labeling and might create obstacles to the youth's future employability. She said it could actually promote further crime rather than deter it. Number 1431 MS. SALERNO said, in her discussions with Representative Kelly's staff, there seemed to be a feeling that secrecy is bad for kids, that if we let the community know what is going on with kids the community will rally around and assist the kid. She said she is skeptical of that scenario. She fears that the community might shun the kid and we could really have a future criminal on our hands where, now, one might not exist. Number 1464 MS. SALERNO said she has been working on some proposed changes to CSHB 6(HES) which might mitigate some of the harsher features of the bill. She received permission from CHAIRMAN BUNDE to discuss them. She said she would also discuss them with Representative Kelly. She said CSHB 6(HES) does not have an age limit on it. The bill would allow the courts to release information on the youngest of juvenile offenders, offenders who are 12, 13 and 14-years-old. She said very young children have the greatest potential for rehabilitation. She has heard it said that if we don't release the names of these young kids they are more likely to get recruited by gangs. In the thinking of NASW, what will happen with CSHB 6(HES) is that we will be turning them over to the gangs. If you release their names, then those kids have the opportunity to become career criminals rather than staying in the system and being rehabilitated. Number 1513 MS. SALERNO said another change to CSHB 6(HES) would be the deletion of the provisions which would allow the court to release information about kids who have committed a second misdemeanor. As Representative Green stated, those could be very minor infringements of the law. Minor things which would not create a situation where it would be in our best interest to release the names of these kids. Minor things such as non-violent crimes. She said we are concerned about kids who are committing serious violent crimes such as felony offenses. Number 1536 MS. SALERNO said, before we release the names, could we not ask the court to review the order. She said it might provide an additional safeguard to the youth, especially those youth who experience a serious impairment such as seriously emotionally disturbed children, children who experience mental illness, or other serious impairments. Those kids need treatment, not stigmatization in the community. Number 1558 MS. SALERNO said, finally, she wanted to suggest that if we are going to release a kid's name out into the community, and ask the community to help them, let's make sure that there is a plan for that help. She said we could put into law that a written, individualized case plan be developed for the youth. She said there would be elements that would be similar to most youth, but it would be individualized to the youth. The case plan would include the responsible parties, what treatment would be provided, time lines for that completion and outcomes. Number 1602 MS. SALERNO said she wanted to clarify something that Mr. Campbell had said to how she read CSHB 6(HES). She referred to Section 5, and said that adjustment is pre-adjudication. She said CSHB 6(HES) would allow that kids who are not adjudicated, who do not go to that length, can also have their names released. Cases that are being adjusted informally. Number 1614 CHAIRMAN BUNDE asked if, at that adjustment, the offender has to acknowledge their guilt. He said that although it is not official adjudification, they are basically admitting that they are guilty. Number 1630 MS. SALERNO said there is enough evidence to prove it as well, but it is not that next step. She said it is at this stage where there is an opportunity to treat kids, when we have a chance to get them into the kind of services that NASW supports. For example, victim offender mediation and other programs of restorative justice rather than the prevailing attitude of punishment and retribution. She said she would like to see more of that and a great deal less of what becomes punishment. She said CSHB 6(HES) could be very dangerous to the community. Number 1666 MS. SALERNO said she is not, nor are other social workers, naive about the dangers to the community about serious violent offenders. She said the Governor's Conference on Youth and Justice reported that those crimes are being committed by a small group of hard core offenders. She said she has no trouble with getting those kids off the street by releasing their names if that what the committee decides to do. She said we need to take the opportunity when we can get it to treat kids, to get them the help that they need. She said NASW supports prevention, by globally attacking the problems of poverty, child abuse, child sexual abuse, early intervention through such programs as Healthy Families. She said we need to take a balanced and restorative approach. Number 1709 CHAIRMAN BUNDE asked if she felt the system is currently working and then asked if the system has worked for the past 20 years. Number 1722 MS. SALERNO referred to what has happened over the past 20 years. She said Alaska has a "juvenile bubble." From 1980 to 1990 nationwide juvenile population grew 1 percent while in Alaska it grew 40 percent. She said 33.8 percent of Alaska's population is between the ages of zero and 19. She said Alaska has more kids and therefore an increased number of juvenile crimes. She said our social problems are increasing. She referred to testimony in the committee file citing a number of factors, she feels are involved, and research shows correlates highly with juvenile crime. She said Alaska is second in the nation on child abuse, child sexual abuse and 124,000 children are in poverty. She concluded that these are all factors. She said it is a complex problem. Number 1774 CHAIRMAN BUNDE said that we can almost stipulate that the system is not working and we are probably all here wanting to find something that works. We might agree on a different vehicle, but our role is to find something that works. Number 1780 MS. SALERNO said, in response, let's take a broader look at it. We are trying to tweak the system here in a quite reactive way. We might not know what happens on the other end. She said this might be a dangerous tweak that we don't have any proof or research on at all. Number 1795 REPRESENTATIVE FRED DYSON read, "the goal of the juvenile system is to help youths in trouble become law abiding citizens," and asked if it was fair to say it's a goal or is it the goal of the system. Number 1814 MS. SALERNO said one of the other things she does in her life is that she is a social services educator and has studied the juvenile system quite extensively from its inception. She said it was designed to be rehabilitative with the other goal being accountability. Those are dual goals; reintegration into society and accountability. Number 1833 REPRESENTATIVE DYSON asked if she would logically infer that the prevention of further crimes by that particular juvenile is not a goal of the system. Number 1843 MS. SALERNO said she would infer that it certainly is a goal. Prevention of crime would be the outcome of rehabilitation. Number 1848 REPRESENTATIVE DYSON asked about "protection from further victims." Number 1850 MS. SALERNO said protection of victims is certainly a goal. She said that CSHB 6(HES) drives a wedge and asked if we can have one without the other. She asked if it was not possible to have both. Number 1861 REPRESENTATIVE DYSON asked her if she had to choose between the two would she or her organization choose protecting the perpetrator and his/her confidentiality over the victims. Number 1868 MS. SALERNO said NASW supports the protection of confidentiality of the minor. Number 1887 REPRESENTATIVE DYSON asked how long, in American law, we have protected confidentiality of minors. Number 1893 MS. SALERNO said the juvenile court was established about the turn of the century. REPRESENTATIVE DYSON asked if all the states have done that since that time. MS. SALERNO said to her knowledge, yes, the juvenile court was part of a nationwide movement during the Progressive Era. She said she does not have the information in front of her, but she would say, yes, all the states adopted the philosophy that children had the disability of their youth. In order to best rehabilitate them and make them productive in society, confidentiality was going to be needed. Number 1916 REPRESENTATIVE GREEN asked if it was fair to say that all Alaskans have the same ultimate goal, although how we get there is different. We would like to be safe from all types of criminal perpetration, but certainly we want to do something with our kids. He referred to her proposal for setting the age limit at 16 and said that some kids, at age 13, are 6 foot 5 inches and 250 pounds. He said it is a awesome figure to say, we're going to treat him like a child. Unfortunately his mind might be a child, but his body is certainly an adult. He expressed concern about making a special dispensation to that "hulk" that might be out there. Number 1986 REPRESENTATIVE GREEN referred to the case plan which she had suggested and asked if she would be amenable to a blanket plan rather than having a special plan drawn up for every children. He said, if CSHB 6(HES) were passed into law, why couldn't it require a plan covering two or three different kinds of problem children. Number 2010 MS. SALERNO said she would answer the second question first. She said there could be a template to derive the case plan from, but said it is important to note that each kid is different. Each kid has circumstances in his/her life; different family setting, different educational needs and certainly a different history. She said a sound professional approach to that would demand that we individualize the case plans. Number 2033 MS. SALERNO referred to his first question and said it is remarkable how large teenagers are growing. She said it is part of the problem because teenagers are large, they are mobile, they look like adults and they sometimes act like adults, but they are not adults. They lack the decision making skills, the experience and they lack some of the resources that might help them when their names are released in public. She said an adult has a lot of different ways to get around the publication of their name, ways of mitigating it in their lives whereas children don't. She said she does not really know the answer to that question. She said folks are alarmed and even quite afraid when they see these very large, 300 pound teenagers bearing down on them in the street. Number 2070 CHAIRMAN BUNDE cited her work and experience and said maybe we could even talk with law enforcement people, but said it was his understanding that violent perpetrators and, certainly, when someone is caught for a violent crime it is seldom their first offense. He said very few are arrested as a felony for their first arrest or at least their first offense. He said the age is decreasing. He referred to Ms. Salerno's proposal to draw the line at age 16, but asked if in the general public there were adults getting juveniles to commit violent crime because they would be treated as juveniles and asked whether or not we would be creating another artificial barrier at age 16. Wouldn't it just get the 14- year-old to commit crimes and essentially encourage recruitment. Number 2103 MS. SALERNO said it is a concern and said that everyone has heard those stories in the news. She reiterated that what we are advocating is that these kids don't just go away, they are just not released and not treated in any fashion. She said NASW advocates secured detention for those kids that need it, all the resources of DHSS and, frankly, the community as well. She said we are on the same page, we would like to see..." Number 2122 CHAIRMAN BUNDE asked how the community was supposed to weigh in when they don't know who the perpetrators are. Number 2126 MS. SALERNO said the community, right now, isn't equipped to give that help. She said she is skeptical that the community will rally around and nurture this child. Number 2133 CHAIRMAN BUNDE said he agreed that the community would probably not gather around and nurture, but do something else. Number 2138 MS. SALERNO questioned whether or not the community would even assist. She asked whether or not the community would do anything other shun and further stigmatize. Number 2144 REPRESENTATIVE BRIAN PORTER said he had discussed with Ms. Salerno some of these kind of things. He said they agree totally in one area, but he said he would have to disagree with her in this area. He said some of the things she suggested were discussed when he participated in the juvenile justice commission this past summer. He said, quite frankly, the gist of the commission's report will be that the traditional, confidential, rehabilitative, protective philosophy of the system isn't working and needs to be adjusted. He said an individual court's review to make that determination, just on the release, he doesn't hold as being as significant as Ms. Salerno is suggesting. He said he got the feeling that she thinks the system will implode if a kid's name is released and the chances of rehabilitation is gone. REPRESENTATIVE PORTER said he thinks just the opposite. He said he has personally seen too many cases where kids use the system; know they are protected, know that they can re-offend, know that unfortunately we don't have the resources to deal adequately with the minor kinds of things. He said, that being recognized by the commission, by trying to adopt procedures and deferral systems which would allow local communities more effort in that authority to deal with kids so that early intervention can happen. He said our system has the state doing everything and that needs to be adjusted as well. Number 2222 REPRESENTATIVE PORTER said the court's review on each case would leave us with a situation where every kid in Klawock was going to have their name released because that is the way the judge out there would do it whereas the judge in Seward would not. REPRESENTATIVE PORTER said the releasing of a second misdemeanor offense, if it were minor, would be a concern, but asked how much of a stigma would it be if it were minor offense. REPRESENTATIVE PORTER said every time he hears that Alaska has the second highest rate of this and that in the state, he cringes. He said you only have to look at the demographics of Alaska to see why we have such a high crime rate and a high incidence of juvenile offenders when we have so many more of them in our population than people over age 18. Number 2254 REPRESENTATIVE PORTER said, finally, it is his and many people of the commission's hope that one of the other by-laws that was passed last year and said he hopes to look at it this year, was to see more parents involved in these kinds of things, instead of the allowance for a kid to have to go to a adjudication or a petition hearing and not even have a parent there. He said that is not going to happen anymore. When parents go to those now, the first one, and they are told the next time that your son or daughter does this, your name is going to be in the paper. He thinks this will provide some additional motivation that we don't currently have. Number 2285 CHAIRMAN BUNDE reminded everyone that the committee meeting will be on teleconference next Tuesday. He said there is written testimony included in the committee file. He said he would continue to provide this testimony as it came to the committee. He recognized the presence of Senator Wilken. Number 2308 CHRIS CHRISTENSEN, Staff Counsel, Office of the Administrative Director, Alaska Court System, said as this was his first appearance before the committee he would make the same disclaimer that he makes every two years. He said as a general rule the supreme court does not take a position in favor of or against legislation. The only exception to that rule is when legislation directly affects the internal administration of the judicial branch. The court believes, very strongly, that the constitution makes this your forum for the consideration of public policy issues and it is not appropriate for the court to inject it's own policy views into this forum. He said the court will offer technical suggestions on legislation as more legislation affects the courts than any other entity. He said the court will offer fiscal notes when they believe something costs the court money and when they do offer fiscal notes they will try to let the legislature know if there is a cheaper way of accomplishing a goal. MR. CHRISTENSEN said the court takes no position on this particular bill. He said he would be attaching a fiscal note, depending on the amendments the committee adopts. TAPE 97-2, SIDE B MR. CHRISTENSEN said he has not drafted a fiscal note yet because he feels it is possible to amend the bill in such a way that would either reduce the fiscal note by a factor of ten or eliminate it entirely. He said, as the members know, adult criminal records are currently public. The number of requests that the court receives is staggering. In Anchorage alone the court gets about 75 people a day who come in with about 40,000 files handed out each year. He said those figures are just of criminal files. He said the total number of civil files goes up into the hundreds of thousands. MR. CHRISTENSEN said in person adult requests are relatively simple to deal with. The requestor looks through the index to see if the name of the person is in there, writes the name down and gives it to a Range 8 file clerk. The clerk goes, grabs the file, gives it to the requestor. The requestor looks through the file and finds the information they are seeking. Number 0029 MR. CHRISTENSEN said it is not that easy with the existing children's files. He said most of the names in the children's index are confidential, so a private citizen cannot come in and look through the index to see if a particular kid is in there. A court employee would need to do that. He said that most of the contents of a file are confidential, so an employee is going to have to actually look through the file and sanitize it by pulling out the relevant information before it is actually given to a member of the public. Some of these files are up to six inches thick. He said adults files are kept by the crime and you might have ten different files if you are an adult criminal. Juvenile files are typically kept in one file for their whole period of their childhood. He said you are going to have someone looking through a six inch thick file and figure out, well, have they been convicted of a felony, have they been convicted of a misdemeanor for a second time, what is the relevant information that I can then hand out. He said this procedure is not something that a Range 8 file clerk is going to be able to do. This is something that a Range 16 legal technician, a paralegal is going to have to do. Number 0073 MR. CHRISTENSEN said the court has one additional problem, the Victim's Rights Act that the legislature passed back around 1991. He said, as you recall, the Victim's Rights Act prohibits the court from giving out information from the files which has either the telephone numbers or addresses of the place of work or residence of a victim. It also prohibits the court from giving out the names of victims of certain types of offenses, particularly sexual offenses. He said the court would also need the paralegal to go through the file to make sure that none of this information is handed out to the requestor. Number 0091 MR. CHRISTENSEN said to put this into perspective, the court's clerical costs for implementing the Victim's Rights Act are probably a little over $100,000 a year. He said the only reason that they are so low is because the court interpreted that act as applying only to files which were created from the effective date on and not to old files. He said the court did not sanitize the hundreds of thousands of files already in existence. He said it is a lot of work with existing files. He said the court suspects that most of the people who come into the courthouses and request an adult file, and these people include potential employers, banks, landlords and neighbors, once they find out that a juvenile record is available are also going to walk down the hall and to find that file. He said if you are an employer and you are hiring a 22 year old right out of college and are willing to spend the time and money to go look at his adult record, you are probably going to want to find out if he was convicted of a felony theft when he was 16 or 17 years old. Number 0143 MR. CHRISTENSEN said there is one additional problem. He said there is no centralized or computerized court file system. He said each court keeps its own records. If you go into the Anchorage courthouse and ask for the record of a juvenile or an adult, all you will be told about is what they have been convicted of in the city of Anchorage. You will not know anything about any of the other 14 juvenile court locations statewide. MR. CHRISTENSEN said there are two ways to lower or eliminate the fiscal note. One way would be amending the bill so that it clearly applies only to files that are generated after the effective date of the law, so that the court would not have to go back and sanitize the existing files. Number 0153 CHAIRMAN BUNDE asked if there was any habeas corpus problem with the legislature passing laws now that would then allow people to go back and examine records that were created. Number 0165 MR. CHRISTENSEN said you could argue that allowing people to go back now and look at records, which were confidential at the time of the conviction, is problematic because, well, the purpose isn't to serve as an extra punishment, the purpose is to protect the public, but in fact it is an extra consequence which they did not know they were going to have when they originally plead guilty. He said there is a potential legal problem to allow people to look at old files. If we only have a supply the new files that are created, the court will set up a different kind of file system. A public index will be on the counter which only has the names in it of kids who have been convicted of a felony or of a second offense. If a person wants to see a kid's record we'll say look through the index, if the name is in there then the court will pull the file. He said, as each of these files is created, there will be a one page document right up at the top that lists the name, the parent's name and the dispositional order. The court would just have to copy this one page and hand it out, so it would be relatively inexpensive. He said this would be one way to get the fiscal note decreased. Number 0203 MR. CHRISTENSEN said he just looked at CSHB 6(HES) and said there were some changes made that indicate that the intention of the drafter of CSHB 6(HES), but it is not completely clear to him. MR. CHRISTENSEN said a second way to decrease the fiscal note would be to look at Section 8 of the original bill, he thought it was Section 5 of CSHB 6(HES), providing that DFYS is also responsible for releasing records. He said the records DFYS releases are the records of kids that it adjusts. The records the court would release are the records that the court adjudicates. Something which could be done, without involving the courts, would be to have DFYS release both the records of the children who were adjusted and the records of the kids who are adjudicated by the courts. He said the kids who are adjudicated by the courts is only about 10 percent to 15 percent of the total, the court does not see most of these children. He said, because DFYS is the prosecuting authority, they have the information including the name of the kid, the parent's name and they know what the court's disposition is. He said, he is not certain, but he believed that DfYS records are far more centralized than those at the courts so that a requestor might actually be able to get information on a statewide basis, rather than a local basis. Number 0250 MR. CHRISTENSEN said there was one further problem which he wanted to bring to the committee's attention, but would not reflect it in a fiscal note because it is speculative. He said he has raised this issue in House Judiciary Standing Committee. One of the things that drives the costs of the criminal justice system is the trial rate. He said right now the state of Alaska has lots of judges, lots of prosecutors and lots of public defenders and said only about 10 percent of adults who are charged with a crime actually go to trial, the rest of them primarily plead guilty or no contest. He said there are lots and lots of people handling only 10 percent of the cases. He said any time you increase the consequences of a crime, you increase the rate at which people decide to go to trial. MR. CHRISTENSEN said the significance of this in the juvenile system, is that while a juvenile has the same right to a public defender if they are sent to a court. A juvenile also has the same right to a jury trial as an adult does, but they very rarely exercise this right. As recently as five years ago, the state was seeing one juvenile jury trial a year. As the consequences of juvenile conduct has been increased by the legislature the state is starting to see more and more jury trials. He said CSHB 6(HES) provides one additional consequence and there will be some kids who say, "Well, I'm getting a free public defender. I don't want my name released, why the heck not go to trial? What do I have to lose? I'm not going to be punished any more harshly for doing that." He said CSHB 6(HES) might have this additional cost. It is a speculative cost so he would not put it in a fiscal note, but wanted to sensitize the committee to this issue. Number 310 REPRESENTATIVE GREEN referred to Mr. Christensen's last point and asked him to give a feel as to what CSHB 6(HES) might do. Number 0320 MR. CHRISTENSEN said he couldn't and that is why in good conscience he wouldn't put a fiscal note on it. He said the court knows it happens. He said trial rates have gone up slightly for adult crimes when the penalty is increased. He said the records are not as clear with juvenile cases in part because it is a much smaller set of numbers. 0335 CHAIRMAN BUNDE clarified that Mr. Christensen had already been in touch with the bill's sponsor regarding the fiscal note challenges. Number 0352 MARGOT KNUTH, Assistant Attorney General, Central Office, Criminal Division, Department of Law, said she was representing the Governor's Children's Cabinet on legislation relating to children and youth, especially those bills that are an outgrowth of the Youth and Justice conference held this past year. She said she was the reporter for the conference and displayed the unabridged version of the conference report labeled, "Governor's Conference on Youth and Justice." She said there is a smaller copy, an abridged version which is also called, "Governor's Conference on Youth and Justice," and contains most of the core content that was reflected in the unabridged version. She said in the conference, confidentiality of juvenile records was the most divisive topic considered. She said the greatest amount of hours were spent on it with, certainly, the widest spectrum of proposed solutions. Number 0428 MS. KNUTH said the Governor will be introducing a bill that, for the most part, reflects the consensus reached in the conference. This bill will hopefully be available to the public on Monday. She said it would be difficult for her to anticipate the bill, but she would discuss the recommendation that was ultimately reached by the conference. She passed out relevant copies of pages from the conference report. MS. KNUTH said when looking at the issue of confidentiality, the first topic that the conference members disagreed on was what is the point of confidentiality, what is the purpose in releasing the information. She added that there was a spectrum of opinions on this. Some people believed that the point of releasing the information was to protect the public so that they could know when an offender is out there. Some people believe that it could have an impact on the offender's decision to commit an offense and that it could actually have a deterrent affect on juvenile crime. Some people believe that public disclosure stigmatizes and makes the child feel more alienated from the good path and could even lead to increased criminal activity. She concluded that the conference saw an enormous spectrum with these issues. Number 0508 MS. KNUTH said she would be remiss if she did not note that Representative Porter and Representative Kelly were two of the most attentive members of the conference from the legislature. She said the other issue raised was what problem are we trying to address. She said, when the conference attendees stepped back that far, the first overriding objective was to reduce juvenile offenses. She said there was a group that was adamantly pushing on disclosure of public records and then there was another group that ultimately prevailed and said what we really need is swift, appropriate consequences for these offenses which the state is not able to do because of limited resources. She said the state is focusing on serious offenders and there is this experience of kids "skating" on the minor offenses. She said, to a certain extent, this has been fueling the public disclosure, confidentiality focus. Number 0566 MS. KNUTH said one of the best results to come out of the conference was a commitment to work with communities and let them respond appropriately to the minor juvenile offenses. She said this can be done without creating criminal records for the kids and without having general public disclosure. The format the communities want to use varies tremendously throughout the state. In small villages the community court system and the cooperative agreement that the state has entered into with Elim and Koyuk. In those villages there will be elders that the kids respond to and there will be an appropriate sanction by that community court. If the kid doesn't comply, he/she will get bumped over to DHSS and DFYS and go through the formal adjudication process. Number 0606 MS. KNUTH said in Anchorage what they want, more than anything else, is a hearing officer system where someone is in affect a pro temp judge and the child is required to appear with a parent in front of this judicial officer where there is a proceeding that has some measure of formality. She said this hearing won't result in a conviction of record and it won't result in public disclosure of the name, but it will result in an order for restitution; community work service presumably. She said that if the kid did not comply with the order, one of the consequences would be to go for adjudication back at DHSS. She said this is a voluntary diversion type program, but is something that Anchorage feels will give them a lot more leverage instead of the perennial "skating" through the state system. MS. KNUTH said other places, such as Mat-Su, have a diversion panel in progress which they want to continue. Youth court has been used. She said all of these very creative solutions are being proposed because there is agreement that our current system is not working and we have to do something to bring these kids in. She said she is talking about minor offenders because that is what most of them are. She said the state does have serious offenders and that is where the state's "SWAT team" needs to come down. She said the state needs to be able to focus on kids that are at risk of becoming serious chronic offenders or who are serious chronic offenders and get in their face, stay in their face and walk hand in hand with them until adulthood and never let up there. She said it is sort of a bifurcation of the state's juvenile justice system that is rather radical for the state. She said the state has been trying to do everything all these years and have finally come to terms with the fact that it doesn't work, it's not working and we want to do something different. MS. KNUTH said with that background, the Youth and Justice conference said the state definitely needs more disclosure of juvenile records. It has been a mistake to have all of these records withheld in all events. She said the conference attendees looked at the spectrum and drew the lines in slightly different places than the sponsor of CSHB 6(HES). Number 0721 MS. KNUTH said she has not had an opportunity to speak with the sponsor, due to his illness, as to where those lines differ. She said Representative Kelly was very patient last year when the party line was always, "wait to see what the Governor's conference does." She said now that we have it, Representative Kelly has been very cooperative in wanting to work with the Administration to see where common ground can be reached. She said she did not feel comfortable in going through specifics with the committee when she hasn't yet had a chance to discuss it with Representative Kelly. Number 0746 CHAIRMAN BUNDE noted that some committee members had a 4:30 p.m. commitment so the meeting would end at 4:30 p.m. Number 0772 REPRESENTATIVE GREEN clarified that Ms. Knuth would be at the next meeting. Number 0781 L. DIANE WORLEY, Director, Central Office, Division of Family and Youth Services, Department Of Health and Social Services, was next to testify. She introduced Bob Buttcane, a juvenile probation officer in the Anchorage office. She said that she expects during the legislative session this year, because of the Governor's conference and the mood of the public that a number of issues related to juvenile justice will be raised. She said Mr. Buttcane was asked to work with the state office to provide the ins and outs as well as the day to day activities of the state's probation officers and of the youth counselors. She felt that Mr. Buttcane will be able to add a more realistic approach to the questions that the legislators have and be able to give specific information in that regard. Number 0839 MS. WORLEY said she would like to address HCR 4, related to the restructuring of DFYS, make a couple of points about CSHB 6(HES) and then let Mr. Buttcane make a few comments relating to some of the points that have been brought up. Number 0860 MS. WORLEY reminded people who attended the committee meetings last year of the continuing discussions of the inability to disclose juvenile records. She said, currently, DFYS has both the juvenile youth services section and the family services section tied together in both their administrative and in much of their financial management. Most of the money DFYS has for the services they provide is generated from federal 4E dollars, which is related to children who are placed in out-of-home care. One of the requirements for getting money is that DFYS maintain confidentiality of their clients. If the current system of DFYS began disclosing juvenile records the division would lose close to $7 million of federal 4E funds. She said it is a large chunk of money which goes to provide a lot of services for the clients that DFYS works with. Number 0917 MS. WORLEY said as the committee continued in this discussion last year, DFYS was asked how other states are able to do this and how Alaska can make this happen without losing the $7 million. She said DFYS sat down last year and began looking at it knowing that this was going to be an issue and that it is, definitely, a high priority for many people. She said HCR 4 relates directly to this issue; how can we restructure DFYS, keeping youth services and family services within the same division without having to create a whole other entity, but still allow the disclosure of juvenile records. She said DFYS has done some drafting of some structural changes and said it is a little different than the changes proposed in HCR 4. She said DFYS would meet with Representative Kelly to fine tune the wording. She said the changes are not so much a separation of DFYS files, but a separation of the administrative management and the fiscal operations of the two sections. What DFYS is looking to do in their draft ideas, without a finalized plan, is putting a clear separation for youth services and family services within the division and under the director. MS. WORLEY said DFYS learned through the Governor's conference that the juvenile justice system is a little fragmented based on regionalization or the location. She said the restructuring will allow the disclosure of juvenile records and DFYS is hoping that the state will be able to strengthen the entire juvenile justice system and give it a more cohesive statewide approach as to how we are going to deal with juveniles. She said DFYS feels that there will be more benefits besides the disclosure of records in the restructuring. Number 1009 MS. WORLEY referred to the funding and said this division will not totally save the 4E dollars. She said, currently DFYS collects around $700,000 based on juveniles that the state places in foster care and out-of-home care and said that money will be lost. Number 1030 REPRESENTATIVE GREEN asked if the money she referred to was a per capita type of arrangement or if it was a fixed figure. Number 1037 MS. WORLEY said it was an estimate DFYS was using based on what had been claimed in the past. She said the number is based on the number of children that DFYS has in out of home care. She said DFYS took the number based on what had been claimed last year, which was approximately $700,000. She said $700,000 is a much smaller loss than $7 million. In the fiscal note that DFYS will be attaching to CSHB 6(HES) will be the loss of the $700,000 plus an additional loss of close to $400,000 for the actual restructuring. She said the restructuring will eliminate some positions, creating a couple of different positions. She said the restructuring will shift positions to create positions specifically related to juvenile justice and some for family services to create a bit of a separation there. Number 1093 REPRESENTATIVE DYSON asked if DFYS would lose the money because the state is abandoning the confidentiality. Number 1101 MS. WORLEY said, yes, that is correct. She said that when the state begins disclosing information that has been confidential on juveniles, DFYS will lose the money related to those juveniles. Number 1110 REPRESENTATIVE DYSON asked if there was an appeal to that process. Number 1115 MS. WORLEY said DFYS has had many discussions with the federal government related to this issue and said there is not an indication that there is an appeals process; an ability to appeal. She said the state could make that attempt, but there is no precedence set for that. She said when this has occurred in other states, they have had to lose those funds as part of the 4E regulations. Number 1141 CHAIRMAN BUNDE said, from her comments, that other states that are releasing this information and have chosen to pay the price. Number 1148 MS. WORLEY said DFYS has done some research to see what other states are doing. She said every state has a variety of ideas of how they are going to address the situation. She said there are many different structures. In some states juvenile justice is within the department or in other departments. She said sometimes they have a separate youth program such as in California where they have the "Youth Authorities," a separate system of the DHSS. Number 1177 CHAIRMAN BUNDE asked if she and the bill's sponsor could give the committee a brief overview of what other states do when the committee meets on Tuesday. Number 1189 MS. WORLEY said she would be happy to do that and referred Chairman Bunde to a publication from the Office of Juvenile Justice. She said the publication is an examination of states and what states are doing in juvenile justice. It looks at some of the current legislation and some of the changes. Number 1204 CHAIRMAN BUNDE said it would be helpful if the committee could get that publication before the Tuesday meeting. He said that if she got a copy to him, he would pass it among the committee members. Number 1212 REPRESENTATIVE DYSON asked if the present confidentiality regulations that DFYS follows preclude giving information to sworn peace officers. Number 1226 MS. WORLEY said DFYS is able to disclose information to certain people on an "as to need to know" basis. She said it depends upon the relationship. She said DFYS is able to disclose information to schools, to counselors and with peace officers as well. She said this is within the guidelines of the federal regulations. Number 1260 REPRESENTATIVE DYSON said that sworn officers of the state have represented to him that DFYS investigators, who are often in many homes with marginal situations, have knowledge and information that is not being reported to the police officers and they wish that this information would be reported. He said there is a conflict of interest, in a sense, in that DFYS in their well intended efforts to protect the children are not disclosing information that would be helpful in solving crimes. Number 1304 MS. WORLEY clarified that Representative Dyson is talking about situations when a social worker or a probation officer does a home visit, goes into a home and they sees other types of potential illegal activities but they are not sharing that information. Number 1324 REPRESENTATIVE DYSON said yes, but he would not have inserted the word, "other." MS. WORLEY said she would have to look into that for him. Number 1337 REPRESENTATIVE PORTER said he would be interested to hear, in this committee or in the House Judiciary Standing Committee, specifics on what it is that the feds are saying causes the loss of the $700,000. He said, it seems to him, that there should be the ability to (indiscernible) the record of a criminal act and the placement in a foster home. He said he realizes that when dealing with feds, as he has, that sometimes it is impossible. He said he could not understand it. Number 1371 MS. WORLEY said she would bring in the information that she has and the definitions and responses that DFYS has received. Number 1380 REPRESENTATIVE PORTER commented that the Congressional delegation from the state of Alaska, as they are well positioned, might give us the ability to change that. Number 1401 BOB BUTTCANE, Juvenile Probation Officer III, Anchorage Intake Unit, Division of Family and Youth Services, Department of Health and Social Services was next to testify. He referred to CSHB 6(HES) and said there are some victims that really want to put the matter behind them. He said for those victims to get a phone call out of the blue just reopens some old wounds. He said if we allowed victims the opportunity to know everything about this child, when he's released and so on, then the state can do everything to make sure they are informed. He said calling people carte blanche and telling them that the person who burglarized your home two years ago is going to be out on Tuesday when the victim has gotten on with their lives would cause a great deal of harm. He said he feels the release of information needs to be initiated by the victim. Number 1453 MR. BUTTCANE said there is a real purpose in opening juvenile records; public safety and rehabilitation. He said where the lines should be drawn is really the issue. He said CSHB 6(HES) might go a little too far. Adolescents are learning and experimenting who they are. He said publishing their names in a paper because, in the course of their trying to figure out what is right and what is wrong and how does their life work, they make a mistake and their name is published. He said he thinks, especially with the younger adolescents, that they would be ostracized in their schools and there would be very little chance that we could intervene to try to save them. He said we need to look more at where we draw the line, but said there are valid reasons in some cases to make sure that names are on billboards to say, "Hey, watch out for this kid." He said he does not think CSHB 6(HES) quite gets to that. Number 1516 CHAIRMAN BUNDE said that we are certainly here to help CSHB 6(HES) get to wherever we collectively feel it is best to get to. He said we could summarize by saying that we agree it takes a whole village as long as most of the village knows what is going on. Number 1532 ADJOURNMENT There being no further business to conduct, CHAIRMAN BUNDE adjourned the meeting of the House Health, Education and Social Services Standing Committee at 4:28 p.m.