ARIZONA STATE LEGISLATURE
Forty-seventh Legislature – Second Regular Session
JOINT LEGISLATIVE COMMITTEE ON YOUTHFUL SEX OFFENDERS
Minutes of Meeting
Senate Hearing Room 109 -- 3:00 p.m.
Chairman Murphy called the meeting to order at 3:14 p.m. and attendance was noted by the secretary.
Members Present
Senator Garcia Representative Chase
Senator Gray Melony Opheim
Mark Faull Chris Phillis representing Jim Haas
Jason Grygla Matthew Smith (by phone)
Dana Paul Hlavac Kathy Waters
Peter Hochuli representing Barbara LaWall Representative Murphy, Cochair
Members Absent
Senator Johnson (excused) Representative Gallardo
Barbara Hernandez
Speakers Present
Katy Proctor, Majority Research Analyst, Judiciary Committee
Beth Rosenberg, Lobbyist, Children’s Action Alliance
OPENING REMARKS
Chairman Murphy stated that a presentation will be given on the recommendations from the workgroups, followed by discussion of the recommendations.
Senator Gray noted that Senator Johnson is absent because she had minor surgery.
DISCUSSION OF RECOMMENDATIONS (ATTACHMENT 1)
Mr. Faull indicated
that there are about 7,000 case documents. His intern and
the Bureau Chief reviewed every record and will provide a memo with a footnote
to the specific document from which the information is obtained (police report,
presentence report or risk assessment). Those documents will be available in
Ms. Mitchell’s office for any committee member to review. He said he must
leave to attend another meeting, but noted that the Committee has been very
well-intentioned although, in some places, a misguided effort without the
appropriate input from victims and other people in the process. He has grave
concerns about the direction of some issues that will be discussed, which can
be taken up in the legislative process.
When Senator Gray asked what he would like tweaked in the legislation, Mr. Faull remarked that it is interesting that much of the focus has been on allegations of misconduct in the probationary system. Probation is a function of the court system and probation recommendations are imposed by judges reviewing the cases. The areas that seemed to be of most concern are under the direct control of judges, yet there is very little in the recommendations addressing that specific issue; instead it is suggested that discretion be removed in other areas of the system while more discretion is being given to judges. Some of the proposals appear to continue to misconstrue what happens in the system. Juvenile sex offenders who are convicted will terminate at age 25 on sex offender probation unless it is continued by a judge. The Committee did not hear from victims of sex crimes or people who supported community notification in the past and pushed hard for that process in neighborhoods. There is a lot missing from the discussion that can be brought to the table in hearings on any legislation from the Committee.
Mr. Faull indicated to Chairman Murphy that the County Attorney, Andrew Thomas, did not authorize him to support any of the recommendations discussed or presented at the meetings he or their representatives attended. Regarding the decertification or reverse transfer process, the reality of that will be that every single case that is transferred and under prosecutorial discretion will end up being relitigated because it will be a standard of practice for a defense attorney, i.e., if the transfer to adult court is not challenged, the defense attorney may be guilty of unethical practice or malpractice. Adopting recommendation #1 from Senator Johnson’s workgroup would actually create a reverse hearing process that will be the same as the old transfer process, except in reverse. The inability to transfer serious felons and criminals caused the creation of the legislation in 1996; in fact, judges in the juvenile system were very reluctant to move juveniles into the adult system to be dealt with on the serious offenses that the voters spoke on in 1996.
Mr. Murphy said there was previously reluctance to transfer even youth accused of serious offenses to the adult system. He asked if that same level of reluctance would return or because of the way it has been done for 10 years, there would be a better balance as far as cases that are transferred versus cases that are not. Mr. Faull said no, on the whole the situation would be very similar to the previous system in that serious dangerous sex offenders would not be treated in the adult system and would be allowed to continue in the juvenile system.
Mr. Faull clarified for Ms. Waters that the wording of the recommendation suggests that people are not currently terminating automatically and the implication is that juveniles are being continued on lifetime probation unfairly. There is already a judicial review in the process for a juvenile sex offender committed to lifetime probation. The implication is that it is not taking place for juveniles when it already is.
Katy Proctor, Majority Research Analyst, Judiciary Committee, noted that the Committee began hearings in October 2006, and at the last meeting, the Members broke off into two workgroups. She reviewed the recommendations from the workgroups:
Senator Johnson’s Workgroup Recommendations
1. Create an A.R.S. §13-501.01 to allow for a decertification process. The county attorney, defendant or the court may move for a decertification hearing on cases filed in the adult system as a result of A.R.S. §13-501(B), excluding crimes listed in the Constitution. The trial court would determine whether the juvenile will face charges as an adult or as a juvenile, similar to the current juvenile transfer hearing process.
2. Expand the defense under A.R.S. §13-1407(F) as follows:
a) Allow the defense to apply if the victim is 13 or 14 and the defendant is no more than 24 months older than the victim. Expand to include child molestation.
b) Allow the defense to apply if the victim is 15, 16 or 17 and the defendant is no more than 35-48 months older than the victim (no consensus on 3 or 4 years). Strike the requirement for the defendant to be in high school or under 19.
3. Create a bridge program to allow the juvenile probation department to retain cases once a youthful sex offender turns 18. If probation is revoked after the offender turns 18, the offender returns to the adult system (ADC).
4. Allow a judge to have complete discretion in sentencing a youthful sex offender, including determining whether or not the offender must register and be subject to community notification. Define a “youthful sex offender” as a person who commits a sex offense that doesn’t involve the use of force while under 18 years of age and has no further sex offenses.
Representative Murphy’s Workgroup Recommendations:
a) Allow the defense to apply if the victim is 15, 16 or 17 and the defendant is no more than 36-48 months older than the victim (no consensus on 3 or 4 years). Strike the requirement for the defendant to be in high school or under 19. (Not supported by PCAO at this time).
Ms. Phillis asked if #3 from Senator Johnson’s workgroup means that juveniles tried in the juvenile system would remain on probation past the age of 18, and if the juvenile violated, the juvenile would then receive adult punishment. Mr. Grygla said the idea is to give a judge other options so the juvenile would not be moved into the adult system, which is where it seemed like many of the problems exist, then the juvenile system would be able to create a treatment plan for those who turn 18 even though the offenses were committed as a juvenile.
Mr. Hlavac said prosecutors testified that sometimes if a child is within six months of turning 18 and there is no way the child could receive appropriate treatment in six months in the juvenile system, the child is placed into the adult system, but the county attorney does not really want to do that. The intent is to give county attorneys the option to have the ability to treat the child for another seven years in the juvenile system and not impose the adult restrictions and consequences on the child.
Mr. Grygla noted that Mr. Faull said the proposed decertification process would reverse the law from 10 years ago, specifically referring to youthful sex offenses, not gang drive-by murders, rapes, drug deals and other things; therefore, it would be only a very small portion of cases in which the public defender’s office would be allowed to use a decertification. It would not be a complete flip flop 180 degrees. This is simply recognition that maybe the pendulum swung too far 10 years ago and covered all adult-type crimes, but this crime is a bit different, meaning that treatment is needed.
Mr. Hochuli stated that he is not
sure one small exception can be carved out just for sex offenses under A.R.S. §13-501.01,
which would set a precedence to use that same argument in other areas where
offenders could receive additional treatment such as substance abuse treatment
for drug offenders. The major concern, at least in recommendation #1 from Senator
Johnson’s workgroup, is that it covers the entire
A.R.S. §13-501(B) offenses, and as Mr. Faull indicated, at least from his
experience with some of the public defenders and contract counsel he deals with
in Pima County, decertification hearings would be asked for each and every
time. If not, although he does not profess to completely understand the adult
system because he primarily works in juvenile, there could be appeals based on
ineffective assistance from counsel.
Mr. Hlavac said with regard to the decertification process, for the most part, county attorneys do a good job of using discretion, but are limited in the information that is available at the time. A defense attorney who comes in later gets to know the defendant, the family, the environment the child is from and gains a deeper understanding, and the court should have the ability to go in and say maybe this child does not belong in the adult system. He agreed that every defense attorney would look to see if a motion for decertification should be filed; however, a defense attorney also has to look at a suppression issue in every single case, and every case that has a suppression issue does not get a motion to suppress filed; it is a strategic decision. In practicality, if there is very little likelihood that a decertification process will occur, a prosecutor and defense attorney will plea out the case in the adult system. The recommendation just provides a check on the unfettered discretion of the prosecutor where currently there is none.
Mr. Hlavac said Mr. Faull raised a good point that a juvenile judge could have been very reluctant to move a child into the adult system prior to 1996. Because this is a reverse process, it is asking an adult judge to send someone the prosecutor has said is a very serious offender that should be prosecuted as an adult back to juvenile. The likelihood is significantly less that the adult judge will do so if the judge believes there is a real threat.
Ms. Phillis said she does not disagree with Mr. Hlavac. She was practicing in juvenile court before 1996 and continued thereafter, and the misnomer that judges were not willing to transfer youths to the adult system is not true. According to statistics, hard core youths were transferred to the adult system. In 1996, there was a lot of gang violence, which is what the community became outraged about and wanted those youths automatically in the adult system. What has happened, though, is the county attorney was given unbridled discretion that nobody oversees, and now youths that would not be transferred are automatically going to the adult system. All this recommendation asks is that if judges are trusted to decide innocence, guilt and sentencing, those judges should also have the ability to look at a case and determine if it is appropriate in the adult system or the juvenile system, and it should be the defense counsel who brings that before the judge and has to prepare the documentation as to why the person should be decertified. It should not be enough that the defense counsel walks in and says the child is only 16, and therefore, should be shipped back to juvenile. It should take a lot more, very similar to a transfer hearing, to show that particular individual does not belong in the adult system.
Chairman Murphy noted that the burden of proof used to be on the prosecutor to show the youth should be transferred to the adult system, but now the burden of proof will be on the defense to say the youth should be transferred back. Because of that, the numbers will not be as drastic as what Mr. Faull believes.
Ms. Phillis agreed that the burden of proof shifts back to the defense counsel. Judges do not like to give up jurisdiction of anyone, so if the youth is already in the adult system, it will take a lot more convincing to send the child back to the juvenile system. It may also cause the county attorney to look more closely at youths that should be tried as adults. It is a check and balance.
Mr. Hochuli stated that he agrees with Mr. Faull despite what Ms. Phillis is saying. He deals with many attorneys that would look for any reason to go through the decertification process. This would cover any offense in A.R.S. §13-501(B), so he would be interested in hearing how to limit it to one offense or one type of offense. Additionally, the public spoke via voting 10 years ago that the transfer to adult court was needed and there has not been an outcry from voters that there has been an abuse of the system. Also, statistics of juveniles that have been transferred overall show there is no real increase compared to the way it was done previously by judges. When the public voted, apparently the concern was that judges were not making good decisions, so in turn, how can it be known if the judges will make good decisions in the reverse process. He indicated that testimony telling a different story has been one-sided. People involved in the system gave an explanation of what happened relative to their case or a family member’s case. Because testimony was only heard from Maricopa County people, Maricopa County offered to tell the rest of the story, but as Mr. Faull indicated, it would be necessary to look through 7,000 pages of documentation. He opined that this is a knee-jerk reaction to one small area of concern that will impact a lot more than what the Committee was designed to review.
Mr. Murphy asked if he would be more comfortable if it were limited to either specific offenses or a specific category instead of being so broad. Mr. Hochuli responded that he would not. He is not sure that can actually be done, and if it was, it would open the floodgates for application in other areas. Again, it is basically ignoring what the public said at the polls.
Referring to Recommendation #2 from Chairman Murphy’s workgroup, Mr. Grygla questioned why PCAO is against the recommendation. Mr. Hochuli clarified that the language was used to indicate that PCAO does not have a position.
Mr. Grygla asked why PCAO may or may not support the recommendation instead of decertification. Mr. Hochuli stated that if law enforcement takes more than one year to investigate a case, which was one of the concerns raised during testimony, that a family or neighbors might wait before reporting and law enforcement and potentially the county attorney’s office are sitting on the case. He has seen that happen, but there may be good reason. At least in the Pima County Attorney’s Office, when referrals are received from law enforcement, timelines are designed in the system to issue and review a case, so a portion of this is already covered by the present rules; therefore, the recommendation deals more with law enforcement processing the case.
#1 – Senator Johnson’s workgroup
#2 – Mr. Murphy’s workgroup
Chairman Murphy remarked that recommendation #2 from his workgroup and recommendation #1 from Senator Johnson’s workgroup overlap a bit. It does not matter if it is the prosecutor’s fault or law enforcement’s fault. One concern is the possibility of leaving the door open to liability on the part of the state because the Committee heard several examples where nothing was happening on a case, then all of a sudden, after a magical time period or a magical age is reached on the part of the alleged perpetrator, it becomes urgent to move forward with a case that happened two years ago. The Constitution says people should receive a speedy trial, especially with a 13 or 14-year-old juvenile who committed an offense. The maturation process is so quick during those years that it is even more unfair to delay cases for juveniles than adults. Twelve months is a reasonable period of time to build an appropriate case, and if it has not been done by then, someone else needs to look at the case. If it is really egregious, any judge in this day and age of not wanting to get bad press, will probably err on the side of it being egregious and transfer. He does not see the recommendation as a threat to let a bunch of terrible people off with a slap on the wrist.
Ms. Waters noted that the Committee heard testimony and there was a lot of discussion about the people voting to change the Constitution. The vote of the people was for violent crimes, but it was expanded beyond that, which she is not sure the people voted on. She works for the court, and once a judge receives a direct file and a plea has been entered, the judge is out of the picture. The number of direct files, according to statistics, greatly outnumbered transferred cases, so the judges are not part of the direct file process. Also, she is not sure any juveniles are placed on lifetime probation, but she will check on that.
Chairman Murphy recollected that as a public voter in 1996, the true emphasis in public discourse was on violent criminals, such as gang bangers, and not so much the average youthful non-violent offender.
Beth Rosenberg, Lobbyist, Children’s Action Alliance, stated that she testified in November 2006 and does not have the materials with her, but she believes the constitutional amendment that passed listed four specific crimes that automatically would be transferred to adult court if a youth was 15 years old or older. Those are first degree murder, second degree murder, forcible sexual assault in violation of A.R.S. §13-1406 and armed robbery in violation of A.R.S. §13-904. It gave the Legislature the ability to define other crimes where the prosecution could be given discretion to transfer to adult court, which is what Ms. Waters is referring to, and that is in A.R.S. §13-501(B).
Ms. Phillis noted that Subsection B also lowers the age to 14, but the crimes are listed in Subsection A.
Ms. Rosenberg added that it is 14 and above that the prosecutors were given discretion to transfer without a hearing to adult court, so what was voted on was based on violent crimes, not all the other crimes prosecutors now have discretion to transfer to adult court or to direct file.
#2 – Mr. Murphy’s workgroup:
Ms. Phillis explained that this is an incentive not to sit on cases and wait for youths to get older and likely be placed in the adult system and remain. If the youth goes before a judge within a year, some reasonable services could be provided.
#2 – Senator Johnson’s workgroup
#3 – Mr. Murphy’s workgroup
Chairman Murphy stated that
Subsection B of recommendation #2 from
Senator Johnson’s workgroup is virtually identical to recommendation #3 from his
workgroup. The only difference is the addition of Subsection A in recommendation
#2 from Senator Johnson’s workgroup.
Mr. Hochuli said #2A from Senator Johnson’s workgroup and #3 from Mr. Murphy’s workgroup deal with middle school youths or junior high youths having sexual conduct with high school youths. He is concerned about the ability of a 13 or 14-year-old to understand the potential ramifications of that or having sex period. Additionally, expanding to child molestation opens the net of children that should be prosecuted that cannot be prosecuted. He surmised that some of the jurisdictions will look at whether it is a 13 year old or 14-year-old and may not pursue that with some input from the victims and the victim’s parents. Lowering the age may raise the possibilities that come up in terms of increased teenage pregnancies, which is already a concern, and increased mental force by virtue of being older with a 13 or 14-year-old.
Chairman Murphy asked, for example, in the case of a 14-year-old and a 15-year-old, leaving out A as a bad idea, the 15-year-old would automatically be assumed to be the perpetrator and the 14-year-old automatically assumed to be the victim even if both dive into whatever activity. Mr. Hochuli responded that is probably a fair presumption, not necessarily in every single case, but probably in most cases. Ms. Phillis stated especially if the 15-year-old is a boy.
Chairman Murphy remarked that having worked with teenagers since he was 21, the various levels of maturity during that age span can vary so widely that it is entirely possible that even if one or the other was somewhat predatory or dominant, the younger person could be leading the activity. Because of the wide variance in maturity levels among teenagers that does not necessarily correlate to a chronological age, he is concerned about having an arbitrary line.
Mr. Hochuli responded that is exactly
why not to do this. There are varying maturity levels, so if this is implemented,
then the 15-year-old could be the predator on the
13-year-old, the 14-year-old could be the predator on the 15-year-old, or
whatever, but there is no oversight. If it stays as it is right now there is
at least the consideration that the county attorney can review the case and determine
that the 14-year-old was the predator with the 15-year-old, and there have been
some cases where the 14-year-old or the parent decided not to pursue the case
because the younger child was the perpetrator. In Pima County there is some
discretion in that regard and there is also some discretion on the part of the
judge. If this is implemented, the maturity level is not taken into account.
The recommendation basically says that a 13-year-old has the ability to make a decision
about whether or not to have sex with a 15-year-old or the 15-year-old wants to
have sex with the 13-year-old, and as long as it is within the 24-month period,
go for it.
Chairman Murphy said it is allowed as a defense, but it is not a guarantee that it will be rubber stamped. Other mitigating factors are taken into consideration. Mr. Hochuli stated that, in practicality, it is an absolute defense, but he is talking about his experience in Pima County
Ms. Phillis remarked that it is not an absolute defense and she believes judges will still look hard at cases involving a 15-year-old and a 13-year-old. The county attorney still has absolute discretion to file the charges, but the defense is allowed to raise what may have actually taken place so the judge or jury hear all the information and take that into account. As it is now, the 13-year-old can say that he started it, he said he was 15 and kept going to the junior high pretending to attend there, and the judge says it does not matter.
Mr. Smith noted that according to A.R.S. §13-1407, it is an absolute defense if the victim is 15, 16 or 17, the defendant is under 19 or in high school and is not more than 24 years old. Whatever is decided, it needs to be written as an absolute defense so everybody knows if the case can or cannot be charged. The way the statute is currently written discourages the county attorney’s office from filing charges. A charge will not be filed currently under the law with a 16-year-old that has less than a 24-month difference because the county attorney’s interpretation of the law may differ from how the judges would interpret it; it is an absolute defense.
Mr. Hochuli agreed with Ms. Phillis that the act must also be consensual. If it is forcible, it deals with different offenses.
Chairman Murphy noted that particularly in this age range, consensual has a different connotation than a situation involving adults simply due to the fact that undue influence, an imbalance of power or maturity is viewed to be a non-consensual situation to a larger extent than it is, so an 18-year-old may not be very mature and a 40-year-old may use life experience and whatever else to persuade, which could be inappropriate in most people’s eyes, but it is not a crime; whereas if it is a 15-year-old and a 13-year-old, that is currently viewed as coercion and not consensual.
Mr. Hochuli said if 13-or-14-year-olds were added to existing statute, there could be an immature 13-year-old and a mature 15-year-old, less than 24 months, and undue influence, etc., but it will not be prosecuted because of the defense.
Chairman Murphy asked if there is a fair way to word a provision to include the possibility of taking into consideration the relative maturity level, yet preserve the ability to prosecute a 15-year-old that, based on evidence presented, has more adult life experience and is probably being predatory on an immature 13-year-old versus a situation where the two are more peers.
Mr. Hochuli responded that to some degree that already exists, again speaking for Pima County, with some discretion on the part of the prosecutor in terms of whether or not the case is filed, taking into account the situation, the influences, the victim’s wishes, taking a look at the whole picture. Also, as with any case, there is judicial oversight by hearing the case through the bench in juvenile court. As he indicated earlier, some judges would review the case and make a not guilty plea based on circumstances where the judge believed the younger person was the perpetrator rather than the older person, depending upon how it was charged.
Mr. Hlavac stated that what is counted on is absolute perfect discretion on the part of prosecutors who generally exercise very good discretion; however, the case slips through the crack, the 15-year-old who has sexual relations with a 13-year-old and is then discretionarily filed on as an adult and has an adult jury trial, there is no discretion of what happens with that juvenile. The victim can get on the stand and say the act was consensual, the two had relations for two years, the mother used to sell them to people or whatever, and there is no defense. That 15-year-old now becomes an adult lifetime probationer and lifetime sexual offender register. The intent is not to change anything about the vast bulk of cases that are happening, but to find a way to provide a safety catch for cases where the prosecutors do not get it right, but once the decision is made, there is no turning back. He believes there is a way to allow the prosecutor to overcome that defense under Subsection A if the prosecutor can show that the consenting party lacks sufficient maturity.
Mr. Grygla remarked that another
issue discussed in relation to including Subsection A is a national law that
will be effective very shortly with age 13 being the age of consent. This is
an attempt to prevent a 15-year-old from being labeled as a perpetrator because
he chose to have sex with a 13-year-old. Even if it is totally and completely
inappropriate, as a father, if it was his immature 13-year-old daughter with a
mature
15-year-old, he would not blame the boy as much as himself and his daughter for
not being smarter. He does not like the classification of victim and perpetrator
because it is too subjective and has too long-term consequences for an entire
young man’s life, and it is usually a young man 90 or 95 percent of the time.
The intent is to try to limit the long-term effects.
Ms. Phillis said in relation to age, Chief Broderick pointed out to the Committee that federal law is 60 months now.
Mr. Murphy stated that one part that needs to be clarified is that neither workgroup reached a consensus between 36 months or 48 months on the 15, 16 and 17-year-olds. Senator Garcia and Senator Gray indicated support in Subsection B for 36 months instead of 36- 48 months.
#3 – Senator Johnson’s workgroup:
Chairman Murphy said there has been some discussion about people who are close to age 18 and the main reason for transfer is that there is not enough time. This would give the prosecutor and the judge the ability to say the case deserves to stay in the juvenile system.
Mr. Hochuli indicated that providing juvenile services to youths ages 18 to 25 would be costly and funding would have to be taken from someplace, presumably from other juveniles in the juvenile justice system where there is already a lack of sufficient funding to provide adequate services. He believes services in the adult system could be made available for juveniles, but he understands those services are not provided to juveniles in the adult system. He does not want to see funds taken from juveniles in the system who have a better shot of not reoffending based on the treatment that is received. This also opens the door to whether or not the state is going to look at dual jurisdiction for all offenses and can select one offense that will have dual jurisdiction.
Mr. Hlavac remarked that he does not envision a cost. Prosecutors, who sometimes reluctantly file on a juvenile as an adult because the juvenile needs some oversight and supervisory services that there is not enough time to provide, would actually be relieved to avoid filing on the child and labeling the child as an adult felon or an adult sex offender because there is this other outlet. The cost is simply a shifting from adult probation to the juvenile probation side, and hopefully, money would be saved because adult jails or prisons would not be filled with juveniles who should and can be adequately treated with juvenile services.
Chairman Murphy asked how easy or difficult it would be for counties, for example, to make a shift in funds. He is not sure there would be a large number of cases since the vast majority of the recommendations deal with cases that are falling through the cracks where people believe the circumstances are very unfair. Mr. Hochuli advised that from his experience, it is very difficult to get one agency to be willing to transfer funds to another agency. Just trying to move things within the juvenile court system from one area to another takes an act of the Arizona Department of Corrections and whoever else.
Ms. Waters related that she looked at the bridge program in Oklahoma, which is called the Transferred Youth Act that was created in 1998 and focused on violent youthful offenders. Youthful offender is defined and the youths are sentenced as juveniles, but there is a 10-year period that can continue. The youths either successfully complete juvenile probation or are juveniles under the Office of Juvenile Affairs, which might be incarceration in juvenile or juvenile probation. At age18, there is a re-evaluation when the youths are either discharged due to completing the program and can then be bridged and continued, but she understands that bridging could also involve probation, so those youths would go into the adult system and continue, but would have to have serious problems. Granted it is a smaller state, but since 1998, only 700 or 800 youths were transferred. A task force is addressing youthful offenders, but the issue is the inappropriateness of 19-year-olds in with younger youths, which is a reverse problem. It all comes down to resources if the youthful offenders can receive treatment in the adult system, but they are not, and treatment does not stop at 18 because the youths are not fixed. Some moving testimony by one of the parents was that they did not say the child did not do anything wrong, the parent just wanted the child to get help, which did not happen in the adult system, so there is a gap somewhere as well.
Mr. Grygla said there are many good treatment programs for chemical addictions, but that is not the feeling in the adult system with youthful sex offenders or sex offenders in general, yet the models that seem to make the offenders the safest to go back into the community are treatment programs. The juvenile system is much more adequate and appropriate to actually make communities safer in the long term by providing treatment. He believes a cost benefit analysis of a little bit more in the short term up front will save a lot more in the long run.
Ms. Waters agreed that money would have to be taken from the juvenile system. If the youth are in the juvenile system, the money will draw down from the juvenile treatment funds. When the Transferred Youth Act was passed, issues were not adequately addressed in relation to what would happen when youthful offenders are transferred to the adult system. A niche was not created. That is what Chief Broderick and others said. There is a gap and something different needs to be done, whether the youth is in the juvenile system or the adult system, and it all comes down to resources and money. Housing is an issue and treatment at 18 when the offenders are basically kicked out of the juvenile treatment facilities due to the laws, registration, etc., and the majority end up in homeless shelters because they are not prepared to be on the street, so it is resource driven either way.
Chairman Gray noted that there is no age cutoff for retaining the youths. Mr. Hochuli said the implication he heard was 25. Mr. Grygla related that the discussion was 24 or 25, i.e., long enough to keep the youth on probation because of the danger of reoffending. Oklahoma was 10 years, which does not mean treatment has to go on for 10 years, but the youth is watched longer. Mr. Hlavac acknowledged that 25 is consistent with the normal age most juvenile sex offender items terminate.
Mr. Grygla pointed out that if the youth reoffends after age 18, the youth is charged as an adult. The intent is to save as many juveniles as possible from falling through the cracks. Senator Gray said the recommendation will indicate at least through 24 years of age.
#4 – Senator Johnson’s workgroup:
Mr. Hlavac said the purpose the
workgroup had was to identify who a youthful sex offender is and define that as
a person who committed an act prior to the age of 18, so it was the date of the
act versus the date of charge, and then allow judicial discretion to pre-empt the
mandatory items the law presupposes upon adult offenders, such as mandatory
prison, registration and notification. The state could argue for the
enforcement of mandatory and the defense could argue against it. He related a
story of a case in
Yavapai County where Judge Moon was the presiding judge on a visiting basis.
A disposition was reached for a child over the age of 18. Neither the
prosecutor, the defense attorney nor the judge thought the mandatory provision should
apply, but it was stated on the record that there was no choice. The
prosecutor used the best discretion and the child probably needed some adult
supervision, but the terms of the plea kicked in mandatory prison sentences and
things that would not be beneficial and useful to anybody in the system.
Mrs. Chase expressed concern over the definition. Mr. Hlavac noted that it is a generic statement, but there was more detail discussed in that it is a person who committed a series of delineated offenses under Title 13 that did not involve use of force, and the offense was committed under the age of 18. Ms. Waters added that no previous sex offenses should be included, which Mr. Hlavac indicated was not discussed, but would be appropriate.
Senator Gray asked if it would include each situation the youth was involved in or one person. Ms. Phillis replied that that it would be adjudications or trials because one person could victimize a bunch of people within a very short period of time, but never receive treatment.
Mr. Hochuli requested a clearer definition, perhaps listing the types of offenses and whether or not some age factors should be considered. It is essentially the offenses listed under Chapter 14, which do not contain a forcible element or component to the element of the crime or the underlying circumstances of the crime. He believes the intent of the workgroup was that there was no prior history and it could be a single victim with multiple incidents of sexual relations, but certainly not multiple victims, and certainly not somebody who had prior adjudications or prior sexual offense history.
Ms. Phillis stated that she does not know if additional victims should be included because sometimes it is a brother and two sisters or something like that occurring around the same time. Those kind of fit in the category, the youthful sex offender who, for whatever reason, is acting inappropriately with siblings. She agreed with no prior adjudications, noting that those people should have had treatment and it has been called to their attention, but in some of the stories that the Committee heard from families, at the time the children began the behavior, the children did not fully understand how bad it was. She can see the same behavior occurring with one or two siblings, not necessarily one. She suggested “no prior adjudications or convictions for sexual offenses.”
Mr. Grygla said a youth could be charged and have two separate counts going on simultaneously. The person is charged and has a disposition one month, and six months later has a second disposition, and suddenly no longer meets the criteria even though it was the same time period. Mr. Hlavac said yes, but it is incumbent upon the prosecutor, the defense attorney and the judge to recognize that circumstance and determine how any plea negotiations will impact what the judge has to do with that individual.
#1 – Mr. Murphy’s workgroup:
Senator Gray asked if anyone else is involved in the probation review by the judge, such as probation officers, the public defender and the prosecutor. Chairman Murphy assumed those people would be brought in to provide input and present information. He believes that was the intent of the discussion, but basically a judge would look at the circumstances and determine whether or not the status quo should continue or modifications should be made.
Senator Gray stated that in drug court all those people meet together as a team, which is what she would like to see happening in this instance. The judge has the final decision, but there should be a requirement that everybody provide input to the judge.
Mr. Hochuli stated that the intent was that those involved in the juvenile side of things see the benefit to probation reviews used in the juvenile justice system with sexual offense cases whereby the juvenile is held accountable to the judge, there is probation, and a report has to be provided as to what is happening. The minor’s counsel needs to be present to make sure the minor’s interests are represented appropriately, and consequently, the prosecution needs to be present to fill out the situation, so this was put together with the assumption that everybody would be at the hearing.
Chairman Murphy opined that service providers of therapy or counseling, etc., should be present to provide input. Mr. Hochuli agreed, noting that probation has that contact in the juvenile system and includes that in the report, and if the minor’s counsel believes it is important, the therapist, counselors, therapeutic group home parent, teachers or whatever are brought in to help provide additional information to the court.
Mr. Hlavac opined that there should be some provision that the right to counsel still attaches to the review hearings because many times at the end of an adjudication or probation being installed, at least on the public defender’s side, the court says public defense is released from further representation and withdrawn from the case. If that right to counsel continues to attach, the public defender or private counsel will have to continue to represent that individual.
Mr. Hochuli requested that the members consider requiring mandatory reports from probation within two weeks, 10 days or 5 days prior to the hearing because there is no provision for mandatory reporting of any kind. He envisioned a situation where probation shows up and everybody is surprised about what probation says.
Ms. Opheim speculated that the intent was to model the juvenile system so perhaps that wording should be reviewed. Therapists have two weeks to turn a report in before the court date, as do the probation officers. Mr. Hochuli said he does not believe there is any wording; it is practice more than anything. He added that under the victim’s rights statute, the victim should be notified. Also, a reasonable time for probation is not necessarily a reasonable time that a judge, defense counsel or the state would agree with; it should be at least two weeks, which gives all parties the opportunity to either subpoena someone to be present or request an appropriate continuance until such time those persons can be present.
Mrs. Chase asked if notification is something that requires a response so people do not claim that the notice was not seen. Chairman Murphy replied that he believes the victim’s rights statutes already have a specified notification piece.
Mr. Hochuli envisioned that the hearing is set at the previous hearing. One other thing that is important for this or another Committee to consider at some point is the lack of treatment dollars for juveniles involved in sex offenses in the juvenile or adult system. There are insufficient group homes due to lack of funding and training, and insufficient qualified people to work in the homes. There is inadequate funding to send juveniles to treatment centers, and in some rural counties, the only options for a juvenile sex offender are transfer to the adult system or commitment to ADC where appropriate sex offense treatment can be received. He asked the Committee to consider more adequate funding to provide these services. If funding is not provided up front for services and there is no ability to put offenders someplace to receive appropriate treatment other than being locked up, there will be future sex offenses, which is not what everyone wants for youth or the communities.
Mrs. Chase commented that resources are tragically lacking in all areas, but hugely lacking in rural areas.
ADOPTION OF RECOMMENDATIONS
Recommendation #1 from Senator Johnson’s Workgroup:
Adopted unanimously.
Recommendation #2 from Senator Johnson’s Workgroup:
Adopted unanimously
Recommendation #3 from Senator Johnson’s Workgroup:
Adopted unanimously
Recommendation #4 from Senator Johnson’s Workgroup:
As amended:
Pre-empt
mandatory sentencing by allowing a judge to have complete discretion in
sentencing a youthful sex offender, including determining whether or not the
offender must register and be subject to community notification. Define a
“youthful sex offender” as a person who commits a sex offense as defined in
Title 13, Chapter 14, that doesn’t involve the use of force while under 18
years of age with no prior adjudications or convictions for sexual offenses.
Adopted unanimously.
Recommendation #1 from Mr. Murphy’s Workgroup:
As amended:
Mandatory annual probation review for every youthful sex offender under 25. Persons providing services to the defendant, probation officers, the victim and other interested parties should be notified of the hearing and should be present. The right to counsel still attaches to the hearing. A mandatory report should be provided by probation at least two weeks prior to the hearing. At the annual review, the judge would determine whether to continue or modify probation along with whether to continue or defer registration and community notification. After the defendant turns 25, the responsibility falls to the offender to request future hearings.
Unanimously adopted.
Recommendation #2 from Mr. Murphy’s Workgroup:
Unanimously adopted.
Ms. Waters noted that she heard from several members about the lack of resources for adequate treatment, housing, the ability to have care providers to treat youthful offenders after the age of 18, etc. Chairman Murphy said adequate is always in the eye of the beholder and suggested a recommendation to re-examine the funding levels for adequacy.
Mrs. Chase moved that the Committee recommend re-examination of youthful sex offender treatment funding for adequacy. The motion carried.
Without objection, the meeting adjourned at 5:17 p.m.
________________________________
Linda Taylor, Committee Secretary
January 11, 2007
(Original minutes, attachments, and tape are on file in the Office of the Chief Clerk.)
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JLC ON YOUTHFUL SEX OFFENDERS
2
January 3, 2007
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