House Committee on Judiciary (01/22/2009)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	01/22/2009	ATTENDANCE

Time:	01:04 PM to 03:32 PM	Apuan	X
		Court	*
Place:	HCR 0107	Gardner B.	X
		King	X
This Meeting was called to order by		Miklosi	*
	Representative Levy	Pace	X
		Roberts	X
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	E
		McCann	*
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB09-1044 HB09-1122 HB09-1037 HB09-1075		Amended, Referred to the Committee of the Whole Referred to the Committee of the Whole Referred to the Committee of the Whole Witness Testimony and/or Committee Discussion Only

01:05 PM -- House Bill 09-1044

Representative Roberts, prime sponsor, presented House Bill 09-1044 concerning expungement of records relating to a criminal matter for which a juvenile is sentenced as a juvenile after being charged by the direct filing of charges in district court. Current law allows certain juvenile offenders to petition the court to have their juvenile criminal records permanently removed or expunged, provided they meet certain criteria (i.e., a mandatory waiting period, no new offenses or pending charges, and whether the expungement is in the best interests of the community). Some offenders are not eligible to file such a petition. These include individuals who have been:

● designated by the court as aggravated or violent juvenile offenders;
● convicted of an offense involving unlawful sexual behavior;
● convicted of an offense that is considered a crime of violence under Colorado law; and
● charged as an adult for a crime committed as a juvenile, a process known as "direct file."

This bill allows a juvenile who was charged as an adult, but ultimately sentenced as a juvenile, to later petition the court to have his or her record expunged. All of the other conditions for expungement will still apply. The bill becomes effective September 1, 2009, unless a referendum petition is filed.

01:07 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke in support of the bill. Ms. Cain talked about some of the discussions held by the Colorado Commission on Criminal and Juvenile Justice (CCCJJ) about the collateral consequences of juvenile criminal behavior. Even if these individuals straighten up and get their lives together, their criminal records follow them forever. This makes it extremely difficult to obtain gainful employment and be a productive member of society, which leads to frustration and potential recidivism. Ms. Cain indicated that under this bill, judges will have more discretion to look at the specific facts of each case and determine whether a juvenile and the community will likely benefit from having his or her criminal record expunged. She listed the criteria that must be met in order to qualify for expungement. Ms. Cain explained that prepared amendment L.001 (Attachment A) allows the bill to apply to offenders sentenced on or after the signature of the bill by the Governor.

01:12 PM -- Doug Wilson, State Public Defender, spoke in support of the bill. Mr. Wilson stressed that this bill came about through consensus among several different parties who are usually on opposing sides of an issue. He responded to questions regarding eligibility for expungement.

01:14 PM -- Ted Tow, Colorado District Attorneys Council (CDAC), spoke in support of the bill. Mr. Tow was one of the parties who was involved in the drafting of the bill. The district attorneys feel this a fair method for handling the records of juveniles who, although they were direct filed upon, were ultimately adjudicated as juveniles.


BILL:	HB09-1044
TIME:	01:16:11 PM
MOVED:	Roberts
MOTION:	Adopt prepared amendment L.001 (Attachment A). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 4 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB09-1044
TIME:	01:16:35 PM
MOVED:	Roberts
MOTION:	Refer House Bill 09-1044, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 10-0, with one excused.
SECONDED:	King
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Excused
	McCann	Yes
	Levy	Yes

Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

01:18 PM -- House Bill 09-1122

Representative Roberts, prime sponsor, presented House Bill 09-1122 concerning increasing the age of persons eligible for sentencing to the Youthful Offender System. This bill expands the eligibility for sentencing to the Youthful Offender System (YOS) in the Department of Corrections (DOC) to include young adult offenders who are 18 or 19 at the time the offense is committed, but less than 21 years old at the time of sentencing. The bill excludes most sex offenders and individuals convicted of class 1 and most class 2 felonies (felony murder is the exception if it is pled down to a class 2 felony and meets certain sentencing guidelines) from eligibility for the YOS.
The bill requires the warden of the YOS facility, upon the request of the prosecution or the defense, to determine whether a young adult offender may be sentenced to the YOS for the presentence report. The warden must consider the nature and circumstances of the crime, the criminal history of the offender, the available bed space in the system, and any other appropriate considerations. This bill will take effect October 1, 2009, and it will sunset on October 1, 2012.

Background. The YOS is a sentencing option for certain juveniles who are charged as adults that exists between the traditional adult prison system and the Division of Youth Corrections, Department of Human Services. The YOS is an intensively structured program that provides services and treatment to juvenile offenders during incarceration, as well as the transition back to the community. The length of stay for an offender in the YOS is anywhere between two and seven years, depending on the severity of the crime committed, and the number of beds is capped by law and the physical limitations of the facility at 256. Certain conditions must be met before an individual may be sentenced to the YOS, including an age requirement and a restriction on certain types of crimes.

Representative Roberts responded to questions about the repeal of the law in 2012. The committee discussed the idea of requiring a report as to the success of the program rather than repealing it.

01:26 PM -- Steve Hager, Department of Corrections, appeared to answer questions. Mr. Hager responded to questions regarding warden involvement in sentences to YOS. Representative McCann asked about the interaction between younger offenders and the new, older offenders. Mr. Hager pointed out the successes of the YOS program and also the failure rate of the program. He talked about the capacity of YOS and the number of offenders currently in the facility. He responded to questions about the differences between regular DOC sentences and the YOS sentences. He talked about the means by which youthful offenders may be sentenced to the YOS.

01:37 PM -- Doug Wilson, State Public Defender, spoke in support of the bill. Mr. Wilson provided an explanation of the YOS and how it reduces recidivism. He discussed the importance of treating kids differently than adults. The bill was conceived in a subcommittee of the CCCJJ. He addressed the fact that the repealer on the bill was a compromise, the intent of which was to insure the continued effectiveness of the YOS. If the bill is disruptive to the program and decreases its effectiveness, the parties wanted some way to remove it. The committee discussed the potential fiscal impact of requiring a report on the provisions of the bill and removing the repealer.

01:44 PM -- Ted Tow, CDAC, spoke in support of the bill. Mr. Tow stressed that the everyone involved believes this will work and be very successful, but they all still want a way out if that becomes necessary. He discussed the consideration for sentencing an individual to the YOS.

01:48 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke in support of the bill. Ms. Cain raised the issue of adolescent brain development and pointed out that the YOS reprograms an juvenile's brain and puts them on the right track. She also mentioned the fiscal savings that can potentially be realized under this legislation.

01:56 PM -- Don Quick, 17th Judicial District Attorney, spoke in support of the bill. Mr. Quick also represented the Attorney General and the victim component of the CCCJJ. He stated that the bill is a good idea and it is the right thing to do. He talked about the discussions by the CCCJJ, in which it has been determined that the state needs to do a better job with assessing offenders on the front end of the DOC system. He also indicated that the group agreed that providing general education and vocational skills to offenders while they are in the system is beneficial to them and ultimately, to society. Finally, the state needs to improve re-entry services and supports. Mr. Quick stated that the YOS already provides all of those things in a very effective way. He discussed the recidivism rates of the YOS compared with those of the adult DOC system. The YOS rates are much lower, after both three years and five years. He pointed out that the offenders in YOS are generally violent offenders who used a weapon to commit the offense. There is a high proportion of gang members in the program and these individuals are not generally successful in regular prison programs. They go on to reoffend at very high rates.

02:02 PM -- Gary Maas, Colorado Department of Corrections, appeared to respond to questions from the committee about why the department has not taken an official position on the bill. Mr. Maas pointed out that the DOC does not generally take a position on bills that affect sentencing. The committee discussed the fact that the department would make the legislature aware of any future problems that might arise as a result of this bill.

02:08 PM

Representative Roberts wrapped up her presentation of the bill and commended all of the parties who brought the bill forward. She expressed her belief that the bill has a number of fail safes built into it in order to make it successful. She asked for the committee's favorable recommendation.


BILL:	HB09-1122
TIME:	02:10:06 PM
MOVED:	Roberts
MOTION:	Refer House Bill 09-1122 to the Committee of the Whole with a favorable recommendations. The motion passed on a vote of 10-0, with one excused.
SECONDED:	King
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Excused
	McCann	Yes
	Levy	Yes

Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

02:11 PM -- House Bill 09-1037

Representative Tipton, prime sponsor, presented House Bill 09-1037 concerning the reclassification of Montrose county for county court purposes. The bill reclassifies Montrose County from a Class C to a Class B county for organizational and administrative purposes concerning county courts. He responded to questions from the committee concerning the reasons for the increase in county court cases in Montrose County. In the last 10 years, the county has seen an almost 70 percent increase in the population.

02:15 PM -- Sherry Stwalley, Judicial Branch, spoke in support of the bill. Ms. Stwalley pointed out that the current county court judge has been serving in a full time capacity since 1999. A change in status for the county will allow the court to qualify for additional judicial resources. The judge is currently carrying about 150 percent of a regular judicial workload, which means it is about time to look at assigning a magistrate to the court to assist with adjudicating cases more quickly and efficiently.


BILL:	HB09-1037
TIME:	02:17:11 PM
MOVED:	Roberts
MOTION:	Refer to House Bill 09-1037 to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Court
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Excused
	Roberts	Yes
	Ryden	Yes
	Waller	Excused
	McCann	Yes
	Levy	Yes

Final YES: 9 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: PASS

02:26 PM -- House Bill 09-1075

Representative Middleton, prime sponsor, presented House Bill 09-1075 concerning expansion of criminal history employment disqualifications for employees of the Department of Human Services. Under current law, new Department of Human Services employees and contractors who have direct contact with vulnerable people are required to pass criminal background checks. The bill expands this requirement to all new employees and contractors of the department. It also eliminates the requirement that the department contact previous employers of the top 3 candidates for positions that have direct contact with vulnerable people.

In addition, the types of offenses, if less than 10 years have passed since conviction, that disqualify a person from employment are expanded to include the following:

felony drug offenses;
misdemeanor offense of unlawful sexual contact; and
all class 2, 3, 4 and 5 felonies.

The bill requires all department employees to inform their supervisors within 48 hours of any arrest, charge or summons for disqualifying offenses.

Representative Middleton discussed the bill and prepared amendment L.001 (Attachment B). Two other amendments were proposed, but not ultimately offered. Representative Middleton acknowledged that further work needs to be done on the bill and a lengthy discussion ensued regarding the problems with the bill and the best way to proceed with considering it. It was determined that the individuals present would be allowed to testify on the bill as drafted and further testimony would be heard at a later date about any amendments that are drafted in the meantime. The committee discussed the employment of individuals who were at one time incarcerated versus the protection of vulnerable populations. Representative Middleton and Representative McCann had a conversation about the need for a statutory change in order to do more comprehensive background checks.

02:53 PM -- Carol Peeples, Colorado Criminal Justice Reform Coalition, spoke in opposition to the bill. Ms. Peeples established her credentials as an expert in the subject of offender re-entry into the community. She opposes the blanket prohibition of hiring individuals with a criminal record. She believes the bill is unnecessary, it presents unreasonable barriers, and

02:58 PM -- Tammy Bellofattto-Sundberg, Felons Regaining Equal Employment (FREE) Coalition, spoke in opposition to the bill. Ms. Bellafatto-Sundberg shared her experience trying to gain employment as an ex-felon. She played voicemails from a recent set of job interviews. She was not able to secure a second interview for a job for which she was qualified due to her criminal record.

03:01 PM -- James Schulz, private citizen, spoke in opposition to the bill. Mr. Schultz distributed written testimony to the committee and read from his prepared remarks (Attachment C). He stated his belief that the bill, as drafted, is overly broad.

03:06 PM -- Christie Donner, CCJRC, spoke in opposition to the bill. Ms. Donner distributed a list of suggested amendments to the bill (Attachment D). She stressed that the bill does not merely expand background checks, but rather expands the means to disqualify individuals with felony records from employment with the Department of Human Services. She talked about a population that is struggling to get a job and keep a job in order to transition back into the community and reduce recidivism. She stated her belief that current law is sufficient and bill is unnecessary. The committee discussed the incongruity between the bill and current statute concerning the sealing of criminal records.

03:13 PM -- Carmelita Muniz, Colorado Association of Alcohol and Drug Service Providers, spoke against the bill. Ms. Muniz expressed her concerns about the inclusion of drug felons in the bill. She stated that the bill is overly broad and wondered what this bill will do to youthful offenders who have a drug or alcohol problem.

03:15 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke against the bill. Ms. Cain discussed the state of laws across the country regarding the sealing of criminal records. Criminal justice policy is tending toward reducing for recidivism by offering employment to ex-offenders. She shared her experience in defending individuals in a domestic violence situation who get a deferred judgement.

03:20 PM

Representative Levy announced the bill would be laid over to Monday, January 26, in order to give the sponsor time to have amendments drafted. The committee introduced themselves to each other.

03:32 PM

Representative Levy adjourned the committee.