HOUSE JUDICIARY STANDING COMMITTEE April 29, 1997 1:05 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 234 "An Act relating to assistance for abortions under the general relief program; and relating to financial responsibility for the costs of abortions." - MOVED OUT OF COMMITTEE SENATE BILL NO. 63 "An Act providing for automatic waiver of juvenile jurisdiction and prosecution of minors as adults for certain violations of laws by minors who use deadly weapons to commit offenses that are crimes against a person, and relating to the sealing of the records of those minors." - MOVED OUT OF COMMITTEE CS FOR SENATE BILL NO. 70(JUD) "An Act relating to the discharge of firearms at or in the direction of buildings and dwellings." - SCHEDULED BUT NOT HEARD 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." - BILL POSTPONED (* First public hearing) PREVIOUS ACTION BILL: HB 234 SHORT TITLE: ABORTIONS UNDER GENERAL RELIEF PROGRAM SPONSOR(S): REPRESENTATIVE(S) MARTIN, Green, Kohring, Kott, Dyson, Sanders, Kelly JRN-DATE JRN-PG ACTION 04/04/97 990 (H) READ THE FIRST TIME - REFERRAL(S) 04/04/97 990 (H) JUDICIARY, FINANCE 04/07/97 1019 (H) COSPONSOR(S): DYSON 04/08/97 1030 (H) COSPONSOR(S): SANDERS 04/09/97 1047 (H) COSPONSOR(S): KELLY 04/23/97 (H) JUD AT 1:00 PM CAPITOL 120 04/23/97 (H) MINUTE(JUD) 04/25/97 (H) JUD AT 8:30 AM CAPITOL 120 04/25/97 (H) MINUTE(JUD) 04/25/97 (H) MINUTE(JUD) 04/29/97 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SB 63 SHORT TITLE: DEADLY WEAPON OFFENSES BY JUVENILES SPONSOR(S): SENATOR(S) DONLEY, Halford, Phillips, Leman, Pearce, Kelly, Green, Sharp; REPRESENTATIVE(S) Rokeberg JRN-DATE JRN-PG ACTION 01/27/97 138 (S) READ THE FIRST TIME - REFERRAL(S) 01/27/97 139 (S) JUD, FIN 01/29/97 163 (S) COSPONSOR(S): PHILLIPS 03/24/97 (S) JUD AT 1:30 PM BELTZ ROOM 211 03/24/97 (S) MINUTE(JUD) 03/26/97 (S) MINUTE(JUD) 03/27/97 892 (S) JUD RPT 3DP 03/27/97 892 (S) DP: TAYLOR, PEARCE, MILLER 03/27/97 892 (S) ZERO FISCAL NOTE (DPS) 03/27/97 892 (S) INDT FISCAL NOTE (ADM) 04/01/97 915 (S) FISCAL NOTES (COURT, CORR) 04/09/97 (S) FIN AT 6:00 PM SENATE FINANCE 532 04/09/97 (S) MINUTE(FIN) 04/09/97 (S) MINUTE(FIN) 04/10/97 1075 (S) FIN RPT 6DP 1NR 04/10/97 1075 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL 04/10/97 1075 (S) DP: TORGERSON, DONLEY; NR: ADAMS 04/10/97 1075 (S) INDETERMINATE FN (S.FIN/CORR) 04/10/97 1075 (S) PREVIOUS FN (COURT) 04/10/97 1075 (S) PREVIOUS IND FN (ADM) 04/10/97 1075 (S) PREVIOUS ZERO FN (DPS) 04/11/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203 04/11/97 (S) MINUTE(RLS) 04/14/97 1126 (S) RULES TO CALENDAR 4/14/97 04/14/97 1129 (S) READ THE SECOND TIME 04/14/97 1129 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/14/97 1129 (S) READ THE THIRD TIME SB 63 04/14/97 1129 (S) COSPONSOR(S): LEMAN, PEARCE, KELLY, 04/14/97 1129 (S) GREEN, SHARP 04/14/97 1129 (S) PASSED Y17 N- E3 04/14/97 1130 (S) LINCOLN NOTICE OF RECONSIDERATION 04/15/97 1149 (S) RECON TAKEN UP - IN THIRD READING 04/15/97 1150 (S) PASSED ON RECONSIDERATION Y14 N3 E3 04/15/97 1151 (S) TRANSMITTED TO (H) 04/16/97 1109 (H) READ THE FIRST TIME - REFERRAL(S) 04/16/97 1109 (H) JUDICIARY, FINANCE 04/16/97 1126 (H) CROSS SPONSOR(S): ROKEBERG 04/29/97 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER KRISTEN BOMENGEN, Assistant Attorney General Human Services Section Civil Division (Juneau) Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Provided department's position and answered questions regarding HB 234. REPRESENTATIVE TERRY MARTIN Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3783 POSITION STATEMENT: Sponsor of HB 234. SENATOR DAVE DONLEY Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 Telephone: (907) 465-3892 POSITION STATEMENT: Sponsor of SB 63. BLAIR McCUNE, Deputy Director Public Defender Agency Department of Administration 900 West Fifth Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Provided department's position and answered questions regarding SB 63. MARGOT KNUTH, Assistant Attorney General Criminal Division Department of Law 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907) 465-4652 POSITION STATEMENT: Testified regarding SB 63 on behalf of Governor's Children's Cabinet. ACTION NARRATIVE TAPE 97-70, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:05 p.m. Members present at the call to order were Representatives Green, Bunde, Porter and Berkowitz. Representatives Croft, Rokeberg and James arrived at 1:11 p.m., 1:15 p.m. and 1:45 p.m., respectively. HB 234 - ABORTIONS UNDER GENERAL RELIEF PROGRAM CHAIRMAN GREEN announced the first order of business was House Bill No. 234, "An Act relating to assistance for abortions under the general relief program; and relating to financial responsibility for the costs of abortions." He acknowledged the presence of the sponsor, Representative Martin, and advised members that although testimony had been closed previously, Kristen Bomengen had been unavoidably absent and would therefore be testifying. Number 0079 KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, came forward to testify, specifying that she is the supervising attorney of the Human Services Section. MS. BOMENGEN noted that Deborah Behr had addressed one constitutional issue quite adequately at the April 25 hearing; that issue arises because the effect of this bill is to cut off funding for abortions under the general relief medical program by placing abortion services first on the list of procedures (to be eliminated). MS. BOMENGEN said in their analysis, that is likely to be found unconstitutional because in states offering higher privacy protections, state courts have found that when a state elects to offer pregnancy-related services, it needs to do so in a "constitutionally neutral" manner. "And under our privacy protections, in our state, we find it likely that our court would find the same," Ms. Bomengen added. She described that as the first level of inquiry into the constitutional issues. MS. BOMENGEN said, however, that if the funding status changed and abortion services were made available - or if this bill were successfully challenged in court, with a resulting determination that the state had to make those services available - that would trigger other parts of this bill, the issues of recovery of funding and responsibility for repayment to the state, giving rise to another level of constitutional problems. MS. BOMENGEN explained that in this case, the woman would be required to provide the name of her sexual partner, with the express intent on the part of the state to inform that sexual partner that the woman had received an abortion. Ms. Bomengen said there are many reasons why a woman may not want that individual to know. And although this law provides for a good-cause exception, that may have to cover a broad range; there may be many repercussions that would be an invasion of that individual's privacy, such as simply revealing the fact to family and friends or publicizing it in some way with an intent to humiliate. MS. BOMENGEN stated, "And so, the U.S. Supreme Court has talked not to this particular issue - I wasn't able to find any other state laws that addressed it in quite this way - but the Supreme Court has spoken to spousal notification issues. And even in the case of a spousal notification requirement, where arguably a spouse ... would have reasons to have that kind of private information, the court has found that it's unconstitutional to require that a spouse be informed of the procedure. So, we think it highly unlikely that the court in our state, again, would allow us to make the provision of services contingent upon the requirement that she identify her sexual partner." MS. BOMENGEN acknowledged that this may be somewhat confusing because the state requires a woman who has a child and is seeking services on behalf of that child to identify a sexual partner, the father of the child. However, in that case, the state is in the position of supporting that child otherwise and is able to show a compelling interest in identifying a responsible parent to provide that support. MS. BOMENGEN pointed out that that compelling interest would not be present here in that same way, since the state would only be seeking to recover the minimal expense of the procedure. Furthermore, the state already has a provision in place to recover that cost from the woman's permanent fund dividend (PFD). Ms. Bomengen concluded, "And so, it seems unlikely that this would withstand a constitutional challenge as well, again, on privacy grounds. And so, there is a reason to distinguish this kind of a requirement, contingency of services that would require the naming of a sexual partner, from the services in other instances where there is a long-term support ... going to a child." Number 0484 REPRESENTATIVE CON BUNDE indicated he was troubled about the difference between the state's compelling right in a live birth and in this instance. He requested clarification about the process and expense of recovering the money from the male involved in an aborted pregnancy. He added that obviously, he was concerned about a net gain for the state, not a net loss. Number 0583 MS. BOMENGEN replied that she was not exactly certain of the figures for the costs. However, in this bill, the state would be required to file an independent action in order to establish that claim before even going after a PFD, for example. Given the estimated cost of the procedure itself, it was likely that the time involved in filing and pursuing a complaint would exceed the recovery to be received directly from the individual. Even where they could collect attorneys' fees, it was unlikely that they would collect anything to really equal the costs in time and energy. Furthermore, there would be additional costs if the case were contested in some way so that blood testing or other testing became necessary; those costs could conceivably be recovered. Ms. Bomengen emphasized that the costs of pursuing these recoveries would probably exceed the actual recoveries by the state. Number 0658 REPRESENTATIVE BUNDE mentioned preserving evidence from a legal standpoint, then said it boggles the mind. Number 0685 REPRESENTATIVE BRIAN PORTER referred to the constitutional problem relating to the state's provision for privacy. He asked what Ms. Bomengen's feeling would be on that if the requirement to name the father were to be eliminated. MS. BOMENGEN replied, "That would eliminate that particular element of the constitutional vulnerability of the bill. ... And that comes at the point where we're making services contingent upon the naming. So, that would remove that privacy invasion, so to speak." She pointed out that the previous issue of virtually cutting off funding would remain, however. REPRESENTATIVE PORTER suggested that it would not be as a violation of the privacy act. MS. BOMENGEN said that previous provision is vulnerable as a challenge to privacy considerations. REPRESENTATIVE PORTER requested clarification. MS. BOMENGEN explained, "That goes to ... the tests that have been applied in other states that have explicit privacy protections, that when a state elects to provide pregnancy-related services, and out of an acknowledgment that some kind of medical procedure is necessary in any pregnancy-related service, that it must provide those services in a `constitutionally neutral,' manner, so to speak, so that they would not necessarily impose upon the decision ... of whether that woman could choose, under her constitutionally protected right to choose, whether to terminate that pregnancy." MS. BOMENGEN continued, "And so, it's based on some other state cases in which that has been the finding, again, based on either constitutional privacy protections in those state constitutions or in an analysis that holds individual rights in high regard, which is also something we find in our state constitutional analysis." REPRESENTATIVE PORTER asked: If it were legal but the state did not have the money to pay for it, did those decisions say that the state would have to provide the money to pay for it? Number 0844 MS. BOMENGEN replied that in this case, the area in which it is vulnerable and capable of being challenged under the constitution is the matter of separating out abortion services from other pregnancy-related services, so that abortion services are listed as the first item (for elimination) but other pregnancy-related services are offered. REPRESENTATIVE BUNDE asked whether for the state to legally be able to not provide abortion services, it would have to not provide any pregnancy-related services. MS. BOMENGEN said that was essentially it. She explained that if the state was going to provide services in this area to people who don't have funds to provide them for themselves, it was inappropriate to use the means of separating out one from another in order to affect a constitutionally protected right. Number 0933 REPRESENTATIVE TERRY MARTIN, sponsor, wrapped up by touching on numerous issues, including the state's attitude on abortion; fiscal restraints; the Governor's saying that senior citizens are being deprived of funds for emergency dental care and children are being deprived of eyeglasses, both lower priorities than elective abortions; and making the father responsible for abortion costs as well as live births, especially in cases of rape or incest. REPRESENTATIVE MARTIN continued, saying he found illogical the arguments by the Department of Law, which he believed were red herrings. He mentioned controversy in some states over disclosure of sexual partners in order to stop venereal disease, and he said in many cases, those individuals were charged for the medical services. Number 1074 REPRESENTATIVE MARTIN mentioned the constitutionality of the right to abortions. He said there are many laws for which the state expends no money. "It's not that we're not appropriating money for it," he said. "We're finding another source of financing it. And yes, we do limit that amount of money that goes to general relief medicine to complement the federal money from Medicaid (indisc.) allow for abortions." He noted that senior citizens, under new legislation, are asked to give some money for their prescriptions and eyeglasses; they pay partially now for the services of Medicaid and/or general relief medical services. He restated his belief that the constitutional issue of privacy is a red herring, saying, "in many cases, for our freedoms, we do pay the bill; the government does not pay for it." REPRESENTATIVE MARTIN said he believes only nine states pay for abortions, and he does not know whether that is partly funded by patients or their partners. He said that a federal law had been copied for the child support enforcement act. Noting that these abortion procedures are elective, he asked: Why not let someone else pay for them? REPRESENTATIVE MARTIN concluded, "So, I'd rather test it in court, to see if the legislators are in charge of the funding. The same way like the prisons. The court charged us and said we're going to fine you, every year now, for overcrowded prisons. Okay, fine us. We don't fund it. ... We didn't put it back in the prisons account, where they want the money. We take it out of DNR and roll it back in and pay it again. So, we were not paying for what the court demands that we will pay for. And it's very clear that we, the legislators, have the final authority on appropriations. And in this case, we're only seeking ... the partner to pay for the abortion." REPRESENTATIVE MARTIN referred to a prior hearing's testimony and indicated the most important thing is that this will cause about 80 percent of the children to live. He commented, "Wonderful. Hallelujah. Five hundred and ninety lives saved in one bill. That's what I love." He said he did not particularly care what the costs were. REPRESENTATIVE PORTER asked whether public testimony was concluded. CHAIRMAN GREEN indicated that although one person had called in, testimony already had been closed except for Ms. Bomengen, who had had a prior obligation. Number 1357 REPRESENTATIVE BUNDE stated his understanding that currently the state does not require a woman receiving a state-funded abortion to contribute to the expense via her PFD but that this bill would require it. REPRESENTATIVE MARTIN affirmed that, adding, "Or the partner." Number 1376 REPRESENTATIVE ERIC CROFT asked whether it was Representative Martin's position that if a court were to find that this bill violates Alaska women's right to privacy or other constitutional provisions and ordered the legislature to fund these, the legislature should refuse. REPRESENTATIVE MARTIN responded, "Number one, I believe in separation of the various three major bodies. I don't want to say what the court will or will not do. I can see where the Administration, on many cases that we have before us, will bring up the court. Everything we do, almost, you know, has been unconstitutional, no matter what the bill is. And so, we as legislators, in our best judgment, go forth with what we think is proper and that would serve the public purpose. Later on, if we find it doesn't, ... then we have to adjust it accordingly. But I don't want to anticipate what the court will do. I don't want to even let that be a reason for supporting or [being] against the bill." Number 1438 REPRESENTATIVE NORMAN ROKEBERG announced that he had three amendments. He offered Amendment 1, 0-LS0848\B.3, Lauterbach, 4/18/97, which read: Page 2, line 7, through page 3, line 10: Delete all material and insert: "Sec. 47.25.205. Priority of general relief medical assistance. If the department finds that the cost of medical assistance for all persons eligible under AS 47.25.120 - 47.25.300 will exceed the amount allocated in the state budget for that assistance for the fiscal year, the department shall eliminate coverage for medical services in the following order: (1) abortions where the pregnancy did not result from rape or incest and related services and supplies, such as medical supplies and equipment, transportation, laboratory and x-ray services, physician services, hospital services, and pharmaceuticals, used for an abortion where the pregnancy did not result from rape or incest; (2) treatment of speech, hearing, and language disorders; (3)[(2)] optometrists' services and eyeglasses; (4)[(3)] occupational therapy; (5)[(4)] emergency dental services for adults; (6)[(5)] prosthetic devices not including dentures; (7)[(6)] medical supplies and equipment other than those used to perform an abortion described in (1) of this section; (8)[(7)] physical therapy; (9)[(8)] outpatient laboratory and outpatient x-ray services other than those used for an abortion described in (1) of this section; (10)[(9)] ambulatory surgical center services other than services to perform an abortion described in (1) of this section; (11)[(10)] nonemergency medical transportation other than transportation to obtain an abortion described in (1) of this section; (12)[(11)] outpatient physician services other than services to perform an abortion described in (1) of this section; (13)[(12)] outpatient hospital services other than services to perform an abortion described in (1) of this section; (14)[(13)] intermediate care facility services; (15)[(14)] skilled nursing facility services; (16)[(15)] emergency medical transportation other than transportation for an abortion described in (1) of this section; (17)[(16)] pharmaceuticals other than those used in an abortion described in (1) of this section; (18)[(17)] inpatient physician services other than services to perform an abortion described in (1) of this section; (19)[(18)] inpatient hospital services other than services to perform an abortion described in (1) of this section." REPRESENTATIVE ETHAN BERKOWITZ objected for discussion purposes. REPRESENTATIVE ROKEBERG said it provides exceptions for instances of rape and incest, which he believes would be consistent with testimony regarding federal and state laws, as well as being consistent with the remainder of the bill. Number 1513 REPRESENTATIVE BERKOWITZ asked how it would be determined whether the pregnancy resulted from rape or incest if the woman did not choose to disclose how it occurred. REPRESENTATIVE ROKEBERG said he would leave that to "the department and the peculiarities of the circumstances." If there were a rape or incest, he believed that law enforcement officers would be involved and the evidence needed by the department would be provided. Number 1556 REPRESENTATIVE BERKOWITZ asked, "In the contingency where the woman's shame prevents her from disclosing what has happened, what would we be doing here? Would we be compelling her to relate a story or compelling her to hide the truth?" REPRESENTATIVE ROKEBERG suggested it would be a matter of choice. Number 1580 REPRESENTATIVE CROFT noted that this conforms with every related service, including medical transportation and pharmaceutical services. CHAIRMAN GREEN said those are in existing law. REPRESENTATIVE ROKEBERG indicated the amendment was drafted by their legal counsel, upon whom he would rely. REPRESENTATIVE CROFT said he understood why it was drafted that way. However, it troubled him that the woman may have to disclose that this was the result of rape or incest every step of the way, including before being allowed on an ambulance, for example. CHAIRMAN GREEN suggested if they wanted compensation, there would be disclosure. Otherwise, there would not be. REPRESENTATIVE ROKEBERG said his answer was "ditto." CHAIRMAN GREEN asked whether the objection was maintained. REPRESENTATIVE BERKOWITZ said yes. CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 1 were Representatives Bunde, Rokeberg and Green. Voting against it were Representatives Porter, Croft and Berkowitz. Representative James was absent. Therefore, Amendment 1 failed, 3 to 3. Number 1730 REPRESENTATIVE ROKEBERG offered Amendment 2, 0-LS0848\B.4, Lauterbach, 4/26/97, which read: Page 1, line 5, following "costs.": Insert "(a)" Page 1, following line 7: Insert a new subsection to read: "(b) A parent or legal guardian of a minor liable under (a) of this section for the medical costs of an abortion is also liable for the medical costs of the abortion unless the department determines that a statutory or constitutional right of confidentiality would be infringed by a disclosure to the parent or guardian that the abortion had occurred." REPRESENTATIVE ROKEBERG explained that Amendment 2 provides that the parent or legal guardian can be found liable for the medical costs of an abortion, unless the revelation of the abortion would impinge on the statutory or constitutional right of confidentiality of the patient. Referring to earlier discussion of confidentiality and privacy, he stated his belief that this is in the spirit of maintaining that confidentiality, particularly as it relates to the department's endeavor to get reimbursement and/or require a payment by the parent or legal guardian for the procedure. Number 1776 CHAIRMAN GREEN asked whether this would apply to the parents or legal guardians of both the pregnant woman and the male involved. REPRESENTATIVE ROKEBERG at first said it was the parents of the female, then added that it also could be the parents of the father, which is the way it is drafted. REPRESENTATIVE BUNDE noted that in legislation previously passed through this committee, the parent of the female would be required to give permission, at certain ages, to have the abortion. He asked whether the parent of the female, then, by having granted this permission, would not assume greater liability. CHAIRMAN GREEN suggested that since subsection (a) says both are equally liable, the parents of both would also be liable with this amendment. Number 1837 REPRESENTATIVE BUNDE stated, "Parents A give permission for a procedure that costs money. Parents B had no input in that decision, and yet we're going to ... assess them both for the cost. And, again, by the time we go through the whole process, ... it'll have cost us more than we would have gained. But, you see, I have some problem there." CHAIRMAN GREEN replied, "Well, I think the attachment there would be the fact that if ... mother A and father B are both minors, and they have a responsibility but they can't afford it. So, the parents of mother now [are] liable for a portion of the cost. And if it exceeds, because of some complications, then the parents of B, who is also responsible, it seems to me would be, under this amendment, be equally liable for the actions of their children. But they had no decision, I agree, the male side." Number 1887 REPRESENTATIVE BUNDE noted that previous legislation had said that for a child brought to term, the parents of the child's father had equal financial responsibility, along with the parents of the child's mother. CHAIRMAN GREEN said he believed there would be parallel responsibility with this amendment. REPRESENTATIVE ROKEBERG commented that he couldn't disagree with anything either Chairman Green or Representative Bunde had said. Number 1912 REPRESENTATIVE CROFT asked whether the parents of the unborn child's father, who had no right to influence the decision regarding abortion, were liable under this section for the medical costs. REPRESENTATIVE ROKEBERG said that is correct. CHAIRMAN GREEN agreed. REPRESENTATIVE CROFT noted that it says "of a minor." He stated his understanding that if it was an older man with a young woman, that man's parents would not be liable. Number 1960 REPRESENTATIVE ROKEBERG said he had not thought through that scenario. He stated, "But I think the language is tight enough that it would allow that the minor being liable under ... subsection (a) above, it would be her parents or legal guardian. If there was a person of the age of majority, then they would not be." CHAIRMAN GREEN agreed that was the way he would read it. He asked whether that was Representative Rokeberg's intent. REPRESENTATIVE ROKEBERG responded, "Yeah, I mean, that's fine, because I -- you know, it does lead to a troublesome-type of analysis in the field, as a practical application. But, I mean, that would be one way to do the demarcation, as to the majority of the individuals involved." CHAIRMAN GREEN noted that Anne Carpeneti from the Department of Law was present. He asked what would happen if the father was a minor at the time of consummation but came of age by the time the abortion occurred. REPRESENTATIVE ROKEBERG suggested that the proximate cause would be ascribed to the time of the occurrence. Number 2031 CHAIRMAN GREEN, after Ms. Carpeneti deferred to Ms. Bomengen, specified that the concerns regarding Amendment 2 were whether (b) would attach a liability to the parents of both the minor father and mother of the aborted child, and what would happen if that father was not a minor or came of age between the conception and the abortion. MS. BOMENGEN responded, "It appears as though the intent is certainly to require that the parents of both minors would be liable, and that appears as though that's what the language is doing here. I believe we would have some legal questions to argue about when it comes to someone who transitions that, minority to majority. So, I would imagine there'd be different ways that it could be read, and it would have to be worked out." CHAIRMAN GREEN asked whether Ms. Bomengen believed for a man who was not a minor at the time of conception, this wording would exclude his parents. MS. BOMENGEN replied that this clearly says a parent or legal guardian of a minor. CHAIRMAN GREEN asked whether the objection was maintained. REPRESENTATIVE CROFT said yes. CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 2 were Representatives Rokeberg and Green. Voting against it were Representatives Bunde, Porter, Croft and Berkowitz. Representative James was absent. Therefore, Amendment 2 failed, 4 to 2. Number 2163 REPRESENTATIVE ROKEBERG offered Amendment 3, 0-LS0848\B.5, Lauterbach, 4/26/97, which read: Page 1, line 7, following "child.": Insert "The liability established under this section may not be enforced if enforcement would violate a statutory or constitutional right of confidentiality related to abortion decisions." Page 4, following line 6: Insert a new bill section to read: "* Sec. 7. AS 47.25 is amended by adding a new section to read: Sec. 47.25.267. Protection of confidentiality. Notwithstanding AS 47.25.150, 47.25.220, and 47.25.240, the department may not implement AS 47.25.150, 47.25.220, or 47.25.240 to the extent that implementation would violate a statutory or constitutional right of confidentiality related to abortion decisions." Renumber the following bill section accordingly. REPRESENTATIVE ROKEBERG advised members that Amendment 3 again speaks to the issue of confidentiality, especially important in light of the existing consent law and any "moving bill that speaks to consent." It relates to shielding a young woman from any revelations to a family member that may be harmful to her well- being. He asked for unanimous consent. Number 2228 REPRESENTATIVE PORTER said he would speak against the amendment and stated, "I guess perhaps to explain the position on all these amendments, I basically don't think it's appropriate to try to put a dress on a nag and come up with a thoroughbred, because I don't think this bill can ever be put in that position." REPRESENTATIVE PORTER continued, "But notwithstanding that, this particular provision, while I understand its intent, would just basically make absolutely a requirement that the provisions of the bill would go to court and have to be determined whether they do or do not violate a constitutional right of, in this case, privacy, I presume. I don't think we should write a statute that demands that there be a supreme court decision before it could go into effect." REPRESENTATIVE CROFT objected on much the same grounds, adding that he did not want to employ more lawyers with this. Number 2270 REPRESENTATIVE ROKEBERG took exception to the statement that this would necessitate a legal judgment by the state supreme court. He said it is clear, black-and-white language, adding, "And the provisions in our constitution and our statutes are such that, I think, that the rights of the individual should be protected, and I think this speaks to that provision." REPRESENTATIVE CROFT said it seemed that it would require litigation, unless they were giving authority to the department to just ignore those portions of this statute that someone in the department feels would violate it. He stated, "I think both of them are equally unpalatable, one, delegating that sort of judicial determination to the department, the other, requiring that it be litigated. So, ... I apologize for being flippant on it, but I do think it either requires it or is making a somewhat unusual delegation to the department." Number 2337 REPRESENTATIVE ROKEBERG suggested perhaps the issues of Amendment 3 should be separated, because that was not his intention. He said the objection he was hearing was that the department's judgment would be taken up on the second portion. He asked Representative Croft for a response. REPRESENTATIVE CROFT stated, "I said that it's objectionable to me either way." He stated his belief that it would require judicial enforcement; if not, it would require departmental enforcement. He guessed the former was preferable. However, he believed that both provisions do the same thing. He concluded, "I would assume that they mean judicial determination of statutory or constitutional infirmity, not department. So, I'm not operating under that assumption, and that's why I do think it will have to be litigated." REPRESENTATIVE ROKEBERG said he would still ask for consideration of the amendment, stating that the intention is the paramount issue here as to the constitutional and statutory rights being protected. CHAIRMAN GREEN asked whether Representative Rokeberg was suggesting dividing the question. REPRESENTATIVE ROKEBERG said no. CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 3 were Representatives Rokeberg and James. Voting against it were Representatives Bunde, Porter, Croft, Berkowitz and Green. Therefore, Amendment 3 failed, 5 to 2. REPRESENTATIVE ROKEBERG made a motion to rescind the committee's action on Amendment 1. REPRESENTATIVE PORTER objected. REPRESENTATIVE ROKEBERG said he believed Amendment 1 should be reconsidered in light of the fact that the intention was to provide further rights to victims of rape and incest, to ensure that they are able to get an abortion. [Representative Porter's comments cut off by tape change] TAPE 97-70, SIDE B Number 0006 REPRESENTATIVE CROFT said his objection had been partly to the substance. He did not believe that inquiry was warranted for the actual abortion service, and he certainly did not believe it was warranted at every stage of the proceeding. It compounded in his mind a fundamental fallacy, that a woman must disclose and justify it before obtaining this medical procedure. CHAIRMAN GREEN asked whether that was an objection or was being offered as a friendly amendment. REPRESENTATIVE CROFT said it was an objection. Number 0046 REPRESENTATIVE JEANNETTE JAMES apologized for having arrived late. She suggested that rather than having to make this disclosure at each stage, a woman would disclose it once to the department and then qualify for those services. Number 0081 REPRESENTATIVE BERKOWITZ agreed that would be true if the woman chose to make the disclosure. "But what we're doing here is requiring her to make a disclosure," he stated. "And to me, that's invasive of her privacy on that issue, not even getting to the privacy attached to abortion. It's the issue of whether she has a right to remain silent." Number 0099 REPRESENTATIVE BUNDE stated his understanding that for rape or incest to exist for disclosure purposes under the bill, there must have been a criminal trial and a finding, rather than someone asking for an abortion and saying a rape occurred. He asked whether that was correct. REPRESENTATIVE PORTER replied, "Well, I think the work that's been done throughout the state over the last 15-20 years has led to a realization that there are fewer and fewer females who find themselves personally afraid of going forward with a prosecution of rape or incest. There are still those who do. And this is precisely, in my mind, what the right to privacy is all about." Number 0157 REPRESENTATIVE ROKEBERG referred to a document from the Department of Health and Social Services, received that day (copy in packets), the last page of which is entitled "Report on Claims of Good Cause for Refusing to Cooperate in Establishing Paternity and Securing Child Support." It indicates that from 4/1/96 to 9/30/96, there was one instance of conception resulting from incest or forcible rape out of 26 claims (of good cause) during that period. Representative Rokeberg said the amendment is consistent with the federal requirements, both in terms of the case law and the regulations, and he did not understand the debate. Number 0188 REPRESENTATIVE JAMES stated that Representative Bunde's comment made a lot of sense because of the time issue. She said, "But also, what Representative Rokeberg said, then why in the world do they even have that language in there? Does that mean that if you went and had an abortion and only could do it under rape and incest, and then after the abortion is already done, you go to court and you find out whether or not it was okay that you did it?" REPRESENTATIVE JAMES said she believes there is a lot of inconsistency with "decisions that have been handed down to the court." She would like to put as much as possible on the table for them to decide. Otherwise, they would never have those answers. CHAIRMAN GREEN asked how long a trial might take. REPRESENTATIVE PORTER said 120 days. REPRESENTATIVE BERKOWITZ said that would be stretched out because of discovery. A rape trial itself would take at least one or two weeks. CHAIRMAN GREEN suggested that might take five or six months. REPRESENTATIVE PORTER clarified that it is 120 days from the time of arrest or indictment. For a "stranger rape" involving an unidentified perpetrator, it could be much longer. Number 0262 REPRESENTATIVE ROKEBERG said he did not believe there needed to be a fully adjudicated finding in this case; it did not make sense. REPRESENTATIVE BERKOWITZ suggested if there was a false allegation of rape or incest, the abortion would be performed and somebody's name would be besmirched who could not come back and clear it. All kinds of problems may result from just the call of rape or incest, including determining whether it is true and then proceeding accordingly. Noting that this bill had been put forward with the idea of being fiscally responsible, he said, "To invade that thicket invites all kinds of costs." CHAIRMAN GREEN requested a roll call vote. Voting to rescind the previous action on Amendment 1 were Representatives Rokeberg, James and Green. Voting against it were Representatives Bunde, Porter, Croft and Berkowitz. Therefore, the motion failed, 4 to 3. REPRESENTATIVE ROKEBERG made a motion to rescind the previous action on Amendment 2. CHAIRMAN GREEN asked whether the reason was that an additional committee member was present. REPRESENTATIVE ROKEBERG said yes. CHAIRMAN GREEN asked whether there was discussion and requested a roll call vote, saying he assumed there was an objection. An unidentified speaker affirmed the objection. Voting to rescind the previous action on Amendment 2 were Representatives Rokeberg, James and Green. Voting against it were Representatives Bunde, Porter, Croft and Berkowitz. Therefore, the motion failed, 4 to 3. CHAIRMAN GREEN announced that the original bill was again before the committee. Number 0359 REPRESENTATIVE PORTER stated that he respected the intent of the sponsor and cosponsors. Although the discussion on the privacy argument had left him a bit confused, that was not the reason that he would not support this legislation. And while he also believed that naming the father had merit, the cost and time involved in trying to reach a conclusion to that end, including possible DNA analyses and so forth, caused him some concern for "cruel-and- unusual and also just plain it-doesn't-pencil-out." Additionally, he understood the intent of the proposed amendments, and had he seen some ability to make the bill function to his principles, he probably would have supported them. REPRESENTATIVE PORTER recalled another bill before the committee a few years earlier, which he had believed was appropriate and which would have done the reverse of this, eliminating some regulations. He stated that the "folks that would qualify for this kind of a procedure are precisely the folks that need it, that need to have that availability to avoid what I have seen personally happen when all of this was against the law, back-room abortions. And I will never vote for a piece of legislation that would return us to that era. For that reason, I will be voting `no' on this bill." Number 0456 REPRESENTATIVE JAMES said her only concern in the bill is the issue of the involvement of the man. She recalled how in high school, there had been pregnant girls, with the "guy just going off on his merry way." She believes it is unfair for the woman to take the blame for something for which she is only half responsible. She expressed interest in finding a way to have a level playing field for the man and the woman. REPRESENTATIVE JAMES said she understands the woman's right to privacy; she supposes that if a woman chooses to take the whole responsibility for the pregnancy, that is her choice. However, the law should provide the option of involving the male from the beginning. Representative James said she would go so far as to say it is important for the male to even be involved in the decision of whether to carry the child or abort it, because it is half his. REPRESENTATIVE JAMES expressed reservations about whether the bill should go anywhere, saying that they had not determined all of the intended or unintended consequences and that "it's a little premature and not correctly written." However, she wanted to put on record her belief that when a choice is made to enter into the act that causes a pregnancy, both parties should share that responsibility equally, however that is accomplished. Number 0567 REPRESENTATIVE BUNDE said he would like to "associate his comments with the previous two speakers." He said he had serious concerns about the constitutionality of the bill and yet would very much appreciate a vehicle that would require personal responsibility of the male. He restated a comment from a previous hearing, about a man who bragged of having sired 19 children by 11 different women. Representative Bunde said that although he wanted to have that man be financially responsible, at the least, he did not see that happening under HB 234. Referring to previous legislation, he said the practicality of preserving evidence for future DNA tests and having a data bank, for example, was fiscally insurmountable. REPRESENTATIVE BUNDE said he believed the issue deserved debate and further study, and he would not stand in the way if the committee wished to move the bill for those purposes. "But I could not vote for this bill in its present form, should it come to the floor," he concluded. Number 0650 REPRESENTATIVE ROKEBERG stated his belief that the sponsor's intention was to focus on making people responsible for their actions. Notwithstanding whatever position a person takes on abortion, he believes that the large majority of Alaskans do not agree with subsidizing abortion procedures because of the sensitivity of the issue. REPRESENTATIVE ROKEBERG referred to testimony about people seeking abortions being transported out of state or to other locales, such as from rural to urban areas. He suggested there is a gross amount of abuse in this area and that many of these instances may occur just for the personal desires of people to get a trip somewhere. REPRESENTATIVE ROKEBERG indicated he agreed with Representative Porter about the history of this issue. However, he is disturbed about abuse of the system and respects the sponsor's position. He himself had offered the amendments to try to "change the color of this old nag, to make it a much better bill and to protect the rights of women in this state, and their right to constitutional privacy." Those amendments were based on what he thinks the federal law is. While he had some philosophical problems with this bill, given his own position on the issue, he thinks there is a legitimate reason to curtail the state payment in some, but not all, instances. He said without the amendments, it was difficult to support moving the bill and he was in a quandary. Number 0793 REPRESENTATIVE BERKOWITZ suggested in the next session trying to figure out ways to reduce the incidence of unwanted or untenable pregnancies instead. REPRESENTATIVE ROKEBERG made a motion to move HB 234 from committee with individual recommendations and the accompanying fiscal note. REPRESENTATIVE CROFT objected. CHAIRMAN GREEN requested a roll call vote. Voting to move HB 234 from committee were Representatives Bunde, Rokeberg, James and Green. Voting against it were Representatives Porter, Croft and Berkowitz. Therefore, HB 234 moved from the House Judiciary Standing Committee by a vote of 4 to 3. SB 63 - DEADLY WEAPON OFFENSES BY JUVENILES [Contains discussion of HB 6 prior to number 0600 and at 0877 of tape 97-71; contains discussion of HB 16 prior to number 1268 of tape 97-71] Number 0863 CHAIRMAN GREEN announced the next item of business was Senate Bill No. 63, "An Act providing for automatic waiver of juvenile jurisdiction and prosecution of minors as adults for certain violations of laws by minors who use deadly weapons to commit offenses that are crimes against a person, and relating to the sealing of the records of those minors." Number 0904 SENATOR DAVE DONLEY, sponsor, noted that SB 63 had passed one body or the other of the last three legislatures, and it had passed through the current committee the previous year. The bill follows up on the juvenile waiver statutes from a few years before. SENATOR DONLEY explained, "As you know, several years ago, we adopted the automatic waiver of juveniles who commit class A felonies, crimes against the person. And this reaches down a little bit further than that, into the list of crimes, to try to address the violent crimes that are not class A crimes and, specifically, the use of deadly weapons to commit assaults. And what Senate Bill 63 would do is say ... that if a juvenile over the age of 16 has been previously convicted or adjudicated as a delinquent as guilty of a[n] assault with a deadly weapon, then if they're subsequently charged with assault with a deadly weapon, they'd be waived to adult court." SENATOR DONLEY said the department estimates that between five and eight juveniles a year would fall in this category. He said there is no mandatory sentencing requirement for those in this classification. This only deals with the question of automatic waiver to adult court for "this very, very small class of the most violent types of juveniles." He said statistics show that violent juvenile crime is one of our growing problems. And this is a narrowly-targeted proposal to deal with the most violent types of juveniles that are currently not being dealt with in adult court. Number 0994 CHAIRMAN GREEN asked whether it would be reasonable for someone to believe his or her life might be in danger, if accosted by a juvenile several years younger than 16. SENATOR DONLEY replied, "As you know, under federal law, the only way to open up these type of cases is to ... put them into adult court. As it is, unless they were a class A felony or unless they moved through the optional waiver process, the proceedings would be closed." He noted that another bill addressed that. He stated, "But this is the one way to get them all the way opened up, so the public can know who is committing these kind of crimes, without the potential loss of federal funds also associated with that. So, it would allow people to know who is committing crimes with a deadly weapon multiple times. And the reason it's 16 years old [is] because, frankly, the Governor is very opposed to anything under 16, and the Administration is opposed to even this one, because they don't support any additional automatic waiver." Number 1090 REPRESENTATIVE CROFT asked whether, under the same facts that this would be an automatic waiver, there currently is the discretion to waive. SENATOR DONLEY said yes. REPRESENTATIVE ROKEBERG observed that the Senate Finance Committee had zeroed out the Department of Corrections fiscal note. He asked who would be testifying. CHAIRMAN GREEN advised him that Margot Knuth from the Governor's Children's Cabinet and one person on teleconference planned to testify. REPRESENTATIVE ROKEBERG asked Senator Donley to speak about the fiscal note. Number 1130 SENATOR DONLEY pointed out that packets included an analysis from the Senate Finance Committee explaining reasons for zeroing out the Department of Corrections fiscal note. He said the assumption of the department's fiscal note was that eight juveniles would be waived to adult court, convicted of felonies and serve prison time. However, the bill has no mandatory sentencing provisions, and the Senate Finance Committee had not thought it was reasonable to assume that all these juveniles would get extended criminal sentences. SENATOR DONLEY stated, "Additionally, for every one of these individuals, if you're going to assume that they would get a sentence like that, since our current juvenile facilities are all desperately overcrowded already, there would be an offsetting impact in the juvenile facilities; but, of course, that's in [the Department of Health and Social Services] and it doesn't reflect. So, another reason the Finance Committee zeroed it out is because we viewed it as pretty much a `net zero' because anybody in their second time of a deadly weapon assault, we were hoping that [the Department of Health and Social Services] would be institutionalizing some of those folks also. And so, if they're not there, they're going to be here." SENATOR DONLEY continued, "And finally, the basis for their request for a 180-bed facility was mostly based on the mandatory waiver that was already passed, for class A felonies from past years, and not on the individual impact of this bill. So, they wanted a 180- bed new facility to deal with the five-to-eight new people that this bill would move in adult court, which are not necessarily mandatory-sentenced." Number 1226 REPRESENTATIVE ROKEBERG asked for confirmation that unclassified and class A felonies are not included in felony-with-a-deadly- weapon-type assaults. SENATOR DONLEY replied, "There's a higher category of assaults with a deadly weapon that result in serious permanent damage to the victims that do become class A felonies. But the simple assaults, and things that don't result in permanent physical damage to people, I believe, are only class B felonies and [class] Cs." He noted that Representative Berkowitz was looking up the definition. REPRESENTATIVE ROKEBERG asked whether there was a "laundry list" of those in the file. SENATOR DONLEY replied that although it was not in the committee packets, he had a memorandum that identified that list. REPRESENTATIVE ROKEBERG asked that it be made available to the committee. He requested examples. Number 1312 SENATOR DONLEY responded, "Criminally negligent homicide, assault in the second degree, assault in the third degree. They're the ones that involve a deadly weapon. Assault in the second degree is a class B felony. Assault in the third degree is a class C felony. Those are the primary targets of the bill." REPRESENTATIVE ROKEBERG asked, "The existing statutes, the fact that a deadly weapon was involved is not a determining characteristic of the definition of a type of assault, for example? It may be a contributing factor, but there's other elements?" SENATOR DONLEY replied that he believed if a deadly weapon was not involved, it was a misdemeanor assault. Number 1370 REPRESENTATIVE BERKOWITZ said there is no clear delineation between the four degrees of assault; there is some overlap between each one. The lowest degree is assault IV, a class A misdemeanor. For example, there could be an assault IV misdemeanor involving a deadly weapon if a person recklessly caused physical injury by playing with a gun and accidentally shooting another person. Under other circumstances, it might be moved up the scale. "Dangerous instrument" is part of the terminology in assault III, a class C felony. The continuum basically goes from physical injury to serious physical injury. "And I know we had a discussion of serious physical injury in another context," Representative Berkowitz added. Number 1438 CHAIRMAN GREEN asked whether those involve an offense against a person. REPRESENTATIVE BERKOWITZ said those were all the assaults involving an offense against a person. CHAIRMAN GREEN asked whether an assault against a person would involve intent, rather than being reckless. REPRESENTATIVE BERKOWITZ replied, "Not necessarily." SENATOR DONLEY responded that a misdemeanor assault would not be covered by this bill; one element under this bill is that it be an offense punishable as a felony. Number 1467 REPRESENTATIVE BERKOWITZ noted, however, that if someone recklessly caused grave physical injury by playing with a gun, that could be a B felony. Number 1492 REPRESENTATIVE ROKEBERG stated his understanding that there are no degrees of intent in criminal law. REPRESENTATIVE BERKOWITZ affirmed that, adding that four mental states apply to criminal statutes. The highest is intentional, followed by reckless, negligent and strict liability; for the latter, there is "really no mental state at all." REPRESENTATIVE ROKEBERG asked whether there had to be intention to have a crime. REPRESENTATIVE BERKOWITZ said no; there are crimes involving strict liability, such as many fishing violations. REPRESENTATIVE ROKEBERG said they were statutory crimes, then. REPRESENTATIVE PORTER said they were crimes because somebody says they are; otherwise, they would not be. REPRESENTATIVE ROKEBERG suggested that intent was needed under the common law, then. REPRESENTATIVE BERKOWITZ responded, "Or recklessness." CHAIRMAN GREEN said he was looking at a list submitted by Jack Chenoweth. He stated, "And I see intent in all of these. Now, I don't know what necessarily constitutes criminally negligent homicide, but that seems to be that there's got to be some intent in there somewhere." REPRESENTATIVE BERKOWITZ responded, "No. For example, if someone's driving drunk and they run over a pedestrian ...." CHAIRMAN GREEN said, "But we're talking about a weapon, now." REPRESENTATIVE BERKOWITZ pointed out that a vehicle can be a weapon. REPRESENTATIVE JAMES asked whether they had a list of weapons that are deadly. REPRESENTATIVE BERKOWITZ replied, "There's nothing that's definitive, but the statutes define weapons. I believe Senator Donley had a list." He noted that under appropriate circumstances, fists or boots have been defined as dangerous weapons or deadly weapons. CHAIRMAN GREEN suggested that did not go along with the driving incident. It seemed that if a person used a fist on someone, it would be intentional. REPRESENTATIVE BERKOWITZ agreed. CHAIRMAN GREEN stated, "And that's the concern we've got, is whether there is intent." Number 1637 REPRESENTATIVE PORTER asked what Mr. Chenoweth had been responding to. SENATOR DONLEY said those were all the crimes against a person that are punishable as a felony. REPRESENTATIVE ROKEBERG stated his understanding that there had to be a crime against a person, a felony and a deadly weapon, under this bill. REPRESENTATIVE BERKOWITZ stated, "Hypothetically, ... if you hold a knife at someone's throat and coerce them to do something, you've got the coercion but the knife hasn't done any actual harm." REPRESENTATIVE ROKEBERG asked whether that would not be assault. REPRESENTATIVE BERKOWITZ said it would be an assault. REPRESENTATIVE ROKEBERG suggested it could also be an exploitation; there could be two different crimes committed in the same act. REPRESENTATIVE BERKOWITZ agreed. Number 1740 REPRESENTATIVE JAMES indicated that when she sees "deadly weapons," she thinks of guns. However, by using that language, it raises different conceptions of what that means. She asked: Since guns are such a tool used now by children, why didn't the bill just say guns? SENATOR DONLEY explained that the bill had originally dealt only with firearms, as a response to guns in schools and the failure to hold juveniles accountable for repeated firearms violations. However, there was a reluctance to single out firearms because other weapons such as brass knuckles, billy clubs, pipes and so forth could be used. Therefore, a floor amendment passed several years before in the Senate, to expand it to deadly weapons. Number 1871 REPRESENTATIVE BERKOWITZ advised members that there is a distinction between "deadly weapons" and "dangerous instruments," and he may have overlapped the two definitions in his earlier explanation. He read: "A deadly weapon means any firearm or anything designed for and capable of causing death or serious physical injury, including a knife, an axe, a club, metal knuckles or an explosive." REPRESENTATIVE BERKOWITZ contrasted that with dangerous instrument, "which includes any deadly weapon or anything that under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury." He said, for example, the car would be a dangerous instrument, not a deadly weapon. He emphasized that he was retracting that portion of what he said earlier. BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage, stating that the courts now have discretion to waive juveniles in appropriate situations. His agency is concerned that an automatic waiver would not be commensurate with the current statute. "Right now, you have to have an unclassified or a class A felony, you know, obviously very serious crimes, or arson," he said. MR. McCUNE referred to earlier discussion about mental states. He clarified that criminal intent occurs when a person's conscious objective is the completion of an act. In addition, many assaults and crimes against the person that are felonies occur with reckless behavior, which he defined: "Recklessness is when you're aware of a risk that a circumstance or result might occur, but you disregard that risk and complete the act." MR. McCUNE said assault III offenses happen in many ways. A deadly weapon can include a club or an unloaded or loaded firearm. If a juvenile scares another person, so that that person fears imminent serious physical injury, that is an assault against the person. If a club or gun, loaded or unloaded, is used, that is assault III. While in some situations assault IIIs are very serious offenses, they also can be less serious, depending on the facts. MR. McCUNE said his agency was concerned about juveniles who commit assault III offenses. For example, someone may have been adjudicated regarding a theft or burglary that is a felony but not have been placed in an institution or received treatment. If that person committed a relatively minor assault III, he or she would be institutionalized. Mr. McCune commented, "And, you know, you could institutionalize that person probably, and still treat them as a minor. So, we're concerned about that class of people being automatically waived into adult court." TAPE 97-71, SIDE A Number 0006 REPRESENTATIVE CROFT requested a brief explanation of how discretionary waiver works. Noting that the courts decide, he asked whether it requires a filing by the department. MR. McCUNE cautioned that there had been recent changes in the law and he was not as up on it as he should be. The burden of proof had changed, once the department filed, depending on the age of the child. He stated "And so, the filing, as I understand it - and I hope I'm correct in this - is done by the department or the attorney general handling the case. And then, quite often but not always, the burden of showing that the minor is amenable to treatment as a juvenile ... is on the minor and the minor's attorneys." Number 0120 MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, came forward to testify, specifying that she was representing the Governor's Children's Cabinet on legislation relating to youth and justice this session. She said Senator Donley had correctly indicated that the Governor's Children's Cabinet has serious concerns about this bill and believes that it would be a mistake to pass it in its current form. MS. KNUTH, speaking of Senator Donley, explained, "He characterized this bill as reaching down a little bit further than where we have automatic waiver already. And I cannot disagree with that more strongly; I cannot agree with that at all." MS. KNUTH explained, "Right now, we have automatic waiver for class A and unclassified offenses for 16- and 17-year-olds. And when it comes to assault, that means that the offender must have caused some physical harm to the victim." She said most of the offenses do not involve physical harm to the victim but rather brandishing a gun or a knife, which recklessly places a person in fear of serious physical injury by means of a deadly weapon. MS. KNUTH stated, "And the difficulty that we have with dropping down to class B and class C felonies is that currently, we have a pretty bright line on where automatic waiver ought to be occurring. If you're going to drop down to B and C felonies, first you're going to do it where there is use of a deadly weapon, and I just have a significant concern that we're going to start patchworking this and that there are many serious B and C felonies that don't involve the use of a deadly weapon, and that to the extent we have serious concerns with the way our juvenile system is operating, what we need to do is to step back and look at some thoughtful, holistic approach to revisiting it. And the Administration is very concerned about piecemeal approaches, and especially this one, because this is the camel's nose getting under the tent in a significant fashion." Number 0328 REPRESENTATIVE JAMES said one of her biggest concerns is the misuse of guns. She asked whether a solution would be to make the use of guns a more serious crime and whether that was possible. MS. KNUTH replied, "Again, I think that people have studied our criminal code as a whole and have tried to assign the seriousness of certain offenses. And especially when we get to assaults, it's a combination of mental state, whether or not an instrument is used and whether or not harm was caused. And merely threatening harm with a dangerous instrument should always be a less serious offense than causing harm, versus causing serious physical harm. We've got to have gradations in it. If you were to raise old juvenile offenses involving a weapon to ... a class A felony crime, I think there would be a basis for a challenge under equal protection of why, when it's juveniles versus adults, considering the serious of weapons." MS. KNUTH continued, "But I'd ask the committee also to look at what other class B and C felonies you can have that don't involve a deadly weapon and yet, I think, are terribly serious crimes, namely, sexual assault in the second degree. A 16-year-old who engages in sexual intercourse with an incapacitated person is guilty of a class B felony offense of sexual assault in the second degree, and I think that's a mighty serious offense. Sexual abuse of a minor in the second or the third degree are B and C felonies. Criminal mischief, intentionally damaging the pipeline, is a class B felony. Tampering with medicines, aspirin, say - I think there was a case that happened somewhere in the nation that a whole bunch of bottles had been tampered with - that's a class B felony. Drug offenses, selling any amount of cocaine, a 16-year-old who sells a pound of cocaine to a 14-year-old, that's a class B felony." MS. KNUTH continued, "And I don't know how we could say these offenses are less serious or less damaging than an offense of, `I point a gun at you, and it may not even be loaded, but you should always assume that it is loaded and you should be afraid as though it were loaded.' But in terms of the actual harm that's caused by the offenses, I don't know how you could say that that one is more worthy of a different result than the other offenses that I've outlined." MS. KNUTH continued, "One of the props for this amendment was before we had House Bill 6, which is now in Senate Finance, on disclosure of juvenile offenders. And there was a concern that there are offenders out there who are using guns and committing serious crimes, and we didn't know who they are. That problem is being addressed in disclosure of juvenile records and opening those court proceedings. And to the extent that that was a motivation for this bill, it's being cured in that separate form." Number 0600 MS. KNUTH continued, "One of the things I'd like to note is that we do have a usable ... petition-for-waiver procedure. And it's most likely to be used and most likely to be successfully used when a juvenile has a prior, which is one of the requirements of this bill, because in order to waive a juvenile to adult court, you need to show that it's unlikely the juvenile can be rehabilitated within the juvenile justice system. One of the best measures of that is the kid's already been through the juvenile system and it didn't work, it didn't take. And so, we're talking about a group where the discretionary waiver is more likely and more appropriate to be used." MS. KNUTH continued, "And certainly from the prosecutor's viewpoint and from the Department of Health and Social Services' viewpoint, this is not a big problem that demands fixing. They feel more comfortable with it being discretionary because use of a gun can often be an equalizer for -- suppose you have a 16-year-old boy who is not very big and his mother's boyfriend, who beats up on the mother on a fairly regular basis, is 300 pounds, 6'3". The kid goes too far in pointing the gun at that guy, and it's an inappropriate circumstance; maybe he comes back a week later or something like that. But a gun is often used in these circumstances that can be terribly serious but also might not be. It might be an indication of something else going on there. And you could have somebody who is in a situation where it happens more than once, even. So, for that reason, the state feels more comfortable if they are able to decide whether to petition for a waiver, whether to say, `This is a bad case, that we need to get an adult sentence there.'" MS. KNUTH advised members that Bruce Richards from the Department of Corrections was present and could answer questions about the fiscal note. She stated, "It was based on the department's need for a 64-bed facility for juveniles because, as a result of the automatic waiver statutes that have been passed already, which were not funded, we now have a number of juveniles in the adult system. And one of the evils that we can all imagine as we sit here is that when you put these kids in with adult population, they've got some pretty bad role models there. And we would like to have them separated." MS. KNUTH continued, "They're not required by federal law to be separated once they're an adult offender, but in terms of what's appropriate for them and the special treatments that they need -- because psychologically they're in a different frame of mind, they have poor impulse control, they have a whole set of problems that's pretty particular to them. And a separate facility is a reality that we need to face at some point. And we said that before. We'll say it with this bill. I expect we'll probably be back and say it again sometime." Number 0787 CHAIRMAN GREEN referred to Ms. Knuth's example of a young boy being confronted by his mother's bully boyfriend. He asked whether use of a gun there would be considered a crime or self-defense. MS. KNUTH said it would depend on the circumstances, although it should be defense. She explained, "I consider most juveniles judgment-impaired; I think that's the definition of being a teenager. And their call on the situation can be wrong. Their timing can be wrong. It could have been, last time, bully thumps on mother; and this time, the kid's reacting too soon and bully hasn't done anything, and the kid's just flying off the handle. But he didn't do anything except say, `I've got a gun,' you know, `You're dead meat,' whatever the scene is." MS. KNUTH continued, "Especially if alcohol should be involved on the part of the adult, then the stories of what happened become more difficult to unravel, and if the kid's the one with the gun, sometimes arresting the kid and getting him out of the house is what makes the most sense in that circumstance. And so, there's a continuum of these events, all the way from really appropriate, righteous conduct to, you know, serious mistake. And the blurry lines are along the way." Number 0877 REPRESENTATIVE ROKEBERG said he somewhat shared her concern about how this would fit in if HB 6 should pass. He asked, "Do you think that, were that to pass, that that ... would meet some of the requirements of the bill sponsor here and will allow the court to go deeper down, at their discretion, for the waiver?" He asked Ms. Knuth to explain how that would work. MS. KNUTH replied, "House Bill 6 is a matter of disclosure of juvenile offenders who have committed crimes against a person, which include the offenses that we're talking about here, as long as it's a felony crime against a person. So, it would be the B and the C felonies, as well as the As and the unclassifieds. And there is currently a debate still going on whether that disclosure should be made at the point of when the petition is filed or should it be made at the point of the adjudication. But the sponsor amended the bill in Senate Judiciary to also have a provision for the court proceedings to be open. So, not only do we get the information about the offense and the offender from Health and Social Services, but the state will be able to have the proceeding open to the public." MS. KNUTH continued, "And I think the part of this bill that that takes care of is the concern that there's this veil of secrecy about juveniles, we don't know who the dangerous ones are, and by treating them as adults, that was one way of making sure that there would be full disclosure about who they are, what they've done. If you can have that same disclosure within the juvenile system, you don't need to waive them to adult court just to find out who they are and what they did; you can find that out while they're still in the juvenile system." Number 1000 REPRESENTATIVE ROKEBERG referred to HB 6 and stated his understanding that the courts wouldn't be mandated or even have the discretion to do an automatic waiver, unless it fit under the unclassified or class A felony definition. So, their hands would be tied as far as actually pursuing prosecution as an adult. MS. KNUTH replied, "The court never makes that call unless the state petitions for it anyway, although if the legislature has made it automatic waiver -- I mean, their hands are equally tied. They have to take it as an adult case. They don't have the means of bouncing it back ... to juvenile proceedings." REPRESENTATIVE ROKEBERG asked, "If the state had decided the fact pattern was such, even with a third degree assault, for example, ... that they felt that the alleged criminal should be prosecuted as an adult, do they have that ability to petition?" MS. KNUTH said absolutely, yes. Number 1064 REPRESENTATIVE BUNDE referred to Ms. Knuth's characterization of SB 63 as going deeper regarding the waiver process. He asked for an idea of numbers or recent cases where someone would be affected under SB 63 but not under existing legislation. MS. KNUTH said the Department of Health and Social Services had prepared a list of examples of cases but she did not have a copy with her. An unidentified speaker advised Ms. Knuth that it was in the committee packets. MS. KNUTH noted that results from nationwide studies on the success of automatic adult waiver are not promising. They are finding that kids who go through automatic waiver are more likely to re-offend than those treated as juveniles, and the new offense is likely to occur sooner and be a more serious offense than if they had gone through the juvenile proceedings. MS. KNUTH stated, "So, the three measures that we use for success of rehabilitation of a system, all three of them are worse for kids who are going through automatic waiver than for the kids who are going through the juvenile system. And part of that is because you're teaching them something they didn't know before they went through the adult system: that they can survive it. They will find a way to live as somebody with an adult conviction." MS. KNUTH continued, "And it's the same thing the first time you put a juvenile in detention. As long as you had that as a threat over their head, it meant a lot. But the moment they actually spent their first night in detention, they realized they can live with that. They're going to be here tomorrow, and they're going to find a way to get on with their life, and they made some new friends that I'd just as soon they hadn't made. And you have the same thing happening in the adult system." MS. KNUTH stated, "The conference [on youth and justice] recommended instead of having automatic waiver - either go down in age or go down in the seriousness of offenses - what the conference recommended was a dual-sentencing provision where the kid gets both a juvenile and an adult sentence. And if they screw up, then you impose the adult sentence. But it gives them that window of opportunity to straighten their own life out, and it gives them some control and some investment and some motivation to get back on the straight and narrow." She said that is part of HB 16, an alternative which she believes shows a great deal of promise. Number 1268 REPRESENTATIVE BERKOWITZ referred to the list of examples drawn from the Division of Family and Youth Services (DFYS) files. As he read it, of those six examples, three would not have come within the reach of this bill because they did not involve deadly weapons. For one, somebody had used a vehicle; for another, someone had another youth attack a third party; and for the third, someone used a glass bottle. None of those is a deadly weapon. REPRESENTATIVE BERKOWITZ said the one that troubled him most was where someone was charged with an assault II and pled to an assault IV. He said that seems to typify the problem more. His experience has been "that you charge high and plead low." MS. KNUTH commented, "Of course, we deny that ever happens ...." REPRESENTATIVE BERKOWITZ said they got good sentences out of it. He stated that the concern was that at first blush, there might appear to be the elements to make a higher-level charge, but when investigated further, they are lacking. On the other hand, that was only one case in fiscal year '95-'96 that fell into that area. Number 1340 REPRESENTATIVE JAMES said a trend she has seen over the last few years is what she calls "coddling," giving offenders repeated chances. It seems there should be a day of reckoning when juveniles must realize they are responsible for what they do. She referred to Ms. Knuth's indication that if juveniles serve time with adults, they would learn bad behavior. Representative James asked about the bad influence of that juvenile on other juveniles if they served time together. She mentioned her experience with reform school issues and foster care and stated, "I guess that I think we've tried coddling. And I think we need to get more serious with some of these issues." She asked for a response. MS. KNUTH replied that first, there definitely needs to be the ability to subdivide within juvenile facilities, to isolate the bad offender from the run-of-the-mill property offender, for example. As for coddling, she did not consider it an answer to "throw the kid out and say good-bye forevermore." She stated, "That really troubles me. When you saddle a kid with an adult conviction, you have just disqualified him from entering the military. You have made it a whole lot more difficult for him to get a job. You have made it very difficult for him or her to go to college. And if a kid can't do any of those three things, what are they going to do?" MS. KNUTH continued, "I know we want to reach them. I know we want to work with them and bring them back, but a kid has got to have a way of being a productive member of society. And before we say, `no job, no army, no college for you,' I mean, I want it to be a pretty extreme situation." MS. KNUTH emphasized that she would not minimize the seriousness of a B or C felony. However, those crimes are not nearly as significant as a class A or an unclassified offense. She stated, "in our attempt to deal with the serious juvenile crime problem, we've got to focus on those who are the chronic serious offenders, be mean-as-heck to them, but not throw out the rest of the juvenile population with them, because we're going to pay, pay, pay if we do that." Number 1488 REPRESENTATIVE JAMES said that many times, people older than 18 in a group get the underage ones to do something because they know they will not be in any trouble. She asked: How do you deal with that? Number 1509 MS. KNUTH replied, "This is, I think, the most important conversation that's occurred from the youth and justice conference, and I really appreciate the opportunity to have it. I think the answer to what you're saying is part of the conference's recommendations, which is that we let communities start responding to some of the low-level offenders, because the state has done has done a pretty bad job of responding consistently in seeing that there are any consequences. And what we want to stop is what you're talking about, where these kids say, `There are no consequences; so, I can keep screwing up and I don't need to toe the line.'" MS. KNUTH continued, "If we allow communities to use more youth board initiatives, more diversion panel projects, and if they will implement them, as they say they want to do, in a consistent, meaningful way, then I think we can start breaking the cycle of kids feeling like there are no consequences." MS. KNUTH continued, "What's a problem is when we have no consequences, no consequences, no consequences and then boom, you know, it's the whole thing's over. That's where we lose that kid, and we haven't done anything, really, for all the ones that are coming along, because they aren't able to see that. And I just think it's important that we start approaching this in a ...." Number 1568 REPRESENTATIVE JAMES said the only way it can be addressed in that way is with the discretion of the people doing the arresting, charging and so forth. "But history has proven that it's not been effective," she said. "And that's where the general public comes back and wants to have some more severe treatment. So, somehow or other, we have to address that with the public." Number 1590 REPRESENTATIVE PORTER stated, "I think that part of the discussion centers on the point that once they get into adult court, I think it was `boom, it's over.' Well, if that were the case, we wouldn't have these problems in the first place. `Boom, it's over' on a C and B felony doesn't happen in adult court. `Boom' is a strong SIS is what happens with a B and C felony. Well, I don't think that the concern that this kid is going to get thrown away and locked up for the rest of his life is a reasonable concern in the first place." REPRESENTATIVE PORTER continued, "I agree with Representative Berkowitz that the examples cited, three of them are incorrect, the fourth one, maybe, and the fifth one, I'd want to put this kid in there anyway. So, we're not talking about that big a group of kids. We're not talking about an absolute `they're going to get thrown away in jail for the rest of their lives' anyway, because at this level of offense, they're probably going to get, if we're lucky, an SSIS, which is a serious suspended imposition of sentence. They are going to get the benefit of an adult court. They are going to get the benefit of the exposure that we've been trying to do through other kinds of bills. The parents are going to get that same exposure. I think it's a positive thing, and I'm ready to move this bill." REPRESENTATIVE PORTER made a motion to move SB 63 from committee with individual recommendations and the fiscal notes as attached from the Senate Finance Committee. There being no objection, SB 63 moved from the House Judiciary Standing Committee. ADJOURNMENT Number 1684 The House Judiciary Standing Committee was adjourned at 3:05 p.m.