STATE OF KANSAS Tenth Judicial District OFFICE OF DISTRICT ATTORNEY STEPHEN M. HOWE, DISTRICT ATTORNEY February 2, 2016 Corrections and Juvenile Justice Committee Attention: Senator Greg Smith, Chairman State Capitol, Room 1448 ‘Topeka, Kansas 66612-1504 Re: Senate Bill 367 Dear Chairman Smith, ‘Thank you for the opportunity to submit our written response in opposition of SB 367. In both the 2013 and 2014 legislative session, the Kansas Legislature made substantial changes to the juvenile justice laws. ‘These changes have made a significant impact on the number of juvenile offenders incarcerated and in state custody. Attached to my written testimony is a chart which demonstrates this success under current law. (Exhibit A). Despite this great success, there seems to be sentiment that the numbers should be reduced even further. This drive for further reductions should not be at the cost of public safety and proper accountability for those who violate the law. There are eight main points of opposition to this Point 1: Reductions of sentences for juvenile offenders ‘The new juvenile sentencing grid will significantly reduce the sentences of all felony offenses, including those for murder, rape, indecent liberties with a minor, kidnapping and robbery. One must not forget that under the juvenile code, offenders receive a 30% good time credit on their sentence. ‘That means that individuals who commit the following crimes will have about one-third of their sentence reduced for good time credit, Those sentences under this proposed bill are: First and second degree murder, rape and aggravated criminal sodomy would only receive a sentence of 36 months; Aggravated indecent liberties with a child, aggravated kidnapping and aggravated robbery would receive a sentence of 12-24 months; Drive by shooting, aggravated burglary and aggravated battery selling drug within a 1,000 ftof.a school would receive a 9-18 month sentence; andResidential and commercial burglaries and aggravated assault with a weapon 6-12 months. In addition to these reductions in sentences, the court will be unable to run multiple ‘counts consecutive to each other. This means a person who commits one crime will be treated the same as one who commits numerous offenses. It would make it virtually impossible for a judge to send those who commit drive-by shootings, home burglaries and aggravated assaults to the juvenile correction facility. This is also true for repeat offenders who commit these crimes. Employing the proposed changes eliminates the court’s ability to weigh each case based on all the facts. Instead, we will be left a “one size fits all” approach and creating the very system promoters of the bill publicly detest. This bill and the proponents forget about one group of people: the victims of these crimes, These changes are unnecessary, ignore the victims and the impact these crimes have on them and their families and puts the public at risk. While we oppose the vast majority of the new sentencing grid, we do not oppose the changes proposed for misdemeanor offenders, Having these offenders serve time locally makes sense. The current law was set up to send misdemeanor offenders to the correctional facility because many jurisdictions did not have local treatment and counseling options available or the ‘money to fund them, This was intended to consolidate resources within the correctional facility to assist the juveniles from those specific jurisdictions, If you are true to your word and provide the money so this can be done locally, we would not oppose this concept. However, the costs will be driven up by having so many local providers. If you move forward with this segment of the bill, we do ask that you extend the amount of time they can serve on misdemeanor crimes to 90 days, ‘The current proposal has a maximum time of 30 days, which would not allow us to control chronic offenders who threaten the community. Point 2; Restrictions on waivers of juveniles and the elimination of EJJP Kansas is already one of the most restrictive states in waiving juveniles to the adult system, We will stand alone as the most restrictive state in waiving juveniles with this bill. Most states have automatic waiver provisions based on the age of the individual and the seriousness of the offense. Kansas currently requires prosecutors to present evidence to show why a juvenile should be waived and why the juvenile’s justice resources are not an appropriate ‘means to hold them accountable, ‘This system permits prosecutors and judges to use diseretion in using this legislative tool. Last year, there were 38 juvenile waivers in the entire State. We took information from Johnson, Sedgwick and Wyandotte Counties to highlight the types of crimes committed by those waived to adult status, From 2011-2015, Sedgwick County waived 49 juveniles. From 2014- 2015, Wyandotte County waived 11 juveniles and from 2013-2015, Johnson County waived 18 juveniles, The vast majority of these waivers included crimes such as: aggravated robbery, rape, aggravated criminal sodomy, aggravated burglary, burglary and aggravated assault. ‘Attached is a list of cases from those three jurisdictions. (Exhibit B). In lieu of a waiver to adult status, the current law allows for a dual jurisdiction sentence. ‘We call it EJJP. This allows the offender to serve his or her sentence in the juvenile correctionalfacility. As long as the offender does not commit a significant violation during the juvenile sentence, he or she will avoid the adult system. Ifa violation occurs, then the court can order the offender into the adult system. Judges, prosecutors and defense attorneys find this to be an effective tool in bringing about justice in the juvenile system, Attached to this testimony is a list of offenses in Johnson, Sedgwick and Wyandotte where EIJP was used. From 2011-2015, Sedgwick County had 23 juveniles. From 2014-2015, Wyandotte County had 4, and from 2013-2015, Johnson County had 12. (Exhibit C). ‘The current draft of this bill eliminates this type of sentence. This would force prosecutors to waive more juveniles into the adult system. A good example is a case where we had a 14-year-old commit 1" degree murder against his father. He was sentenced through EJJP, and he will serve a sentence until he becomes 224 years old. Without EJJP, our office would be forced to seck a waiver to avoid a sentence of only 2 years. This change would force the very thing you are trying to avoid, Maintaining the current waiver and EJJP system allows prosecutors and judges the flexibility to effect justice based on the individual facts versus the “one size fits all” approach proposed in this bill. Prosecutors and judges are not abusing the system, therefore the question is: if the system is not broken, what are we fixing, and what ‘wrongs are we trying to right? Point Detention and revocation situ: ‘We do not have a problem with using an evidence-based risk assessment tool to evaluate juveniles’ risks factors, We use them and feel it is important to make decisions based on as much information as possible. There have been concems about low-level offenders sitting in the detention facilities unnecessarily, We agree that those who commit misdemeanor offenses, who do not impose a risk to the public should stay out of the detention faci The vast majority of jurisdictions already use means under the current law to virtually eliminate this from happening. In Johnson County, we issue summons on a large number of minor offenses at the time of arrest. Last year, the average daily population in the Johnson County Juvenile Detention Center was only 21 for a county with a population of $70,000 people. The other large jurisdictions in the State have seen similar decreases in their daily juvenile detention center statistics. It is important, however, to have the ability to place low-level offenders in detention if they are repeat offenders who place the public at risk. This bill eliminates our ability to do this. It is important to allow for this discretion to protect victims and the community. Requiring a detention review hearing every seven days is inefficient, costly and harmful to victims, The courts would get bogged down with weekly detention hearings. In Johnson County, we had a juvenile who committed first-degree murder. That juvenile was arrested on July 3, 2013, and was sentenced to the juvenile correctional facility on October 20, 2014. If we had a detention hearing every 7 days to review this juvenile’s detention status, we would have had approximately 68 detention hearings over the course of that case, If we use evidence-based criteria in judging the juveniles risks to the community upon his arrest, then what has changed from this initial screening? This is completely inefficient, particularly considering that defense counsel can always request a hearing to ask the court to modify bond or to release the juvenile.‘While Johnson County is fortunate to have our detention hearings through video conferencing, and therefore no transportation costs are incurred, other counties in our state have to transport the juvenile to the courthouse every time they have a detention hearing. This is an unnecessary expense that this bill is mandating our counties incur. Every time we have a hearing on a case, the vietims are notified of the hearing pursuant to the Victim’s Rights Act. From experience, we know these simple hearings can cause stress to victims of crimes. This will happen weekly and will cause confusion and anxiety to hundreds of victims a year. While we agree that juveniles will probable make mistakes on supervision and some latitude needs to be allowed to implement various graduated sanctions, we must be willing to consider graduating to a loss of liberty. Under the current draft of the bill, this is not contemplated even in the worst-case scenarios, where a juvenile refuses to comply or is in contempt of court. Juveniles will quickly figure out that “you cannot do anything to me, so why should I comply?” Point 4: _Multi-Jurisdietion Team ‘We have already empowered the Juvenile Correction Advisory Boards to do these very things. Mandating these groups and making them part of the decision making process in all cases will cause problems for the smaller jurisdictions to implement. This creates additional bureaucracy and layers to the system for both big and small jurisdictions. This will not bring about the swift and sure sanctions approach promoted by the supporters of this bill; instead it gums up the works. Why are we changing our current system, which permits interaction and communication from all of the various groups in the juvenile justice system? ‘There is no showing that ‘community corrections personnel, prosecutors or judges are making uninformed decisions. We do not need more people with their hands in the process. We need more resources for those smaller communities. As conservative people, we know that more government does not make a better system. Instead, provide resources to those needed areas so they can act smarter. Empower them rather than entangle them. Point 5:_CINC code ‘We do not oppose the vast majority of the proposed changes here. ‘There is, however, one key detention factor which has been eliminated by this bill. That is lodging a child in a secure facility when itis in their best interest to protect them from themselves. This proposed legislation does not allow judges and prosecutors to protect juveniles who are Children in Need of Care and are repeat runaways and located by law enforcement in dangerous situations such as living in drug houses or being sexually abused by adults. Currently, if the court issues a valid court order known as a “no run warning” and the child again runs away, that child can be placed in a secure facility for the child’s own safety. This bill seeks to remove this power. This actions seems to run counter to the legislature’s hard work in protecting the victims of human trafficking. Recently in our jurisdiction, a 14-year-old girl violated her no-run‘warming and was located by police in a situation where she had engaged in intercourse with five adult males, She was evaluated for being the victim of trafficking and she did not meet that definition because there was not a trafficker per se. Under our current law, that child was remanded to the detention center for two days and was then sent to a locked treatment facility to engage in counseling and other services to curtail her run behaviors. If this bill becomes law, that child would been sent to an unlocked or walk-away facility or to a foster home. In either option, the child would have likely returned to these adult males. A Child in Need of Care should rarely be placed in a locked facility, but the ability to do so is a necessary tool for protecting children, Point 6: Scho We already work with our schools pursuant to the Safe Schools Act. Decisions are based ‘on many factors, and prosecutors, educators and law enforcement all have a very individualized approach for each community. The Memorandum of Understanding (MOU) will do little to promote safer schools. ‘The Legislature has previously enacted the Safe Schools Initiative, We all recognized the need to maintain a safe learning environment for our schools. This has helped ereate an excellent ‘working relationship between schools, law enforcement, prosecutors and DCF, These groups work weekly with each other to ensure that proper decisions are being made for the wellbeing of all of the students and the community. A MOU does nothing to facilitate this cooper Maintaining the status quo will allow each case to be reviewed and decisions made based on the facts. This is the most effective way to insure safe and effective schools. Again, what are we trying to fix? Point 7: Diversion/Immediate Intervention Programs ‘These programs are already possible under the current/existing laws, We have pre-file and post-filing diversion programs. We also provide for highly successful youth court. These do and can exist under the current law. A lack of resources is the main reason why these programs do not exist statewide. Adding layers of people and procedures for this process will not aid in the effectiveness of these programs. In fact, these layers will slow down the process and cause confusion. As members of the Executive Branch, itis the prosecutor’s job to determine who gets diversion. Transferring this authority to others outside the executive branch is unconstitutional under Kansas law. We already consult with community corrections and court services on these decisions, We have policies for when juveniles should get referrals for diversion, Ultimately, however, the decision rests with me. Point 8: Group homes ‘We understand the desire to have better outcomes in the various group home settings. But we must also remember that these juveniles are typically medium- and high-risk individuals and by nature of this risk factor have the potential to fail. We should not set our expectations too high when reviewing this data, Our office believes we are heading in the right direction under the current law. Instituting this change in short order without the funding stream in place will eave many juveniles in need of care without a place to go. If you feel change is necessary please consider delaying the implementation of this bill to January of 2018, which would allow the financial piece to develop,In conclusion, we believe that substantial gains have been made in a mere two years. This is not the time to make drastic changes which are, for the most, part unnecessary and dangerous. Taking discretion away from the system does not promote rehabilitation and fairness for juveniles. The reduction of sentences on dangerous felons does nothing to promote the safety of the public. These proposed changes are contrary to the values of Kansans. I urge you to oppose passage of this bill. I thank you for your time and would be happy to answer any questions you may have regarding the proposed legislation. Sincerely, hayiho— Stephen M. Howe Johnson County District Attorney KCDAA Board MemberJUVENILE POPULATION Population Totals | June 30th of Each Fiscal Year Juvenile Correctional Facility Population Stotewide FY 2010 toFY 2015, “00 aur us = a a 203 261 250 10 0 2010 aon 2012 2013 2 2018 calves Juvenile Custody Population” FY 2010 toFY 2015 1.380 : - 1239 087 11052 2010 ant 2012 2013 2014 2015 Facalveoe “Tee panna tne pce ne en panne ne Ero ARE A *Chart from the Kansas Department of Corrections Annual Report, 2015Waiver Crimes: Sedgwick, Johnson, Wyandotte | 18 16 4 2 10 8 6 5 I, I, Reed | | | | Pee | i] I i vr bo hf vy LES ELE LE OLE E S os vo . ee 0 FF oe ro FESS OES “6 ey ee fee Se HS SF oF SF S io > & tS See Fee “ we é | *Each number equals one juvenile **Juveniles may be charged with more than one crime and may have more than one case with their Waiver, however this diagram only indicates the most severe charge the juvenile has ** The data from Sedgwick County ranges from 2011-2015. The data from Johnson County ranges from 2013-2015. The data from Wyandotte County ranges from 2014-2015. ****The lower level offenses are a result of plea negotiations and prior criminal historyEJJP Crimes: Sedgwick, Johnson, Wyandotte *Each number equals one juvenile **Juveniles may be charged with more than one crime and may have more than one case with their EJP, however this diagram only indicates the most severe charge the juvenile has ***The data from Sedgwick County ranges from 2011-2015. The data from Johnson County ranges from 2013-2015, The data from Wyandotte County ranges from 2014-2015. ****The lower level offenses are a result of plea negotiations and criminal history ; EXAET 2 Exh bit ¢