NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

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(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC files

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee amendment strike on page 2 line 20 "adjudicate the child and enter an order suspending in" and inserts in lieu thereof "enter a judgement imposing or suspending in". Also, on page 11, line 23 , after the subsection designation "C." strikes the remainder of the line, strikes lines 24 and 25 and inserts in lieu thereof: "Upon satisfactory verification of his identity, the parent, guardian or legal custodian of a child shall, in person, through counsel or through his authorized agent, be entitled to review and obtain a copy of all law enforcement records pertaining to the child.".

Synopsis of Bill

HB 491 seeks to amend the Children's Code to give the court the discretion to adjudicate the child and enter an order that suspends in whole or in part the disposition of the court.

According to the Juvenile Parole Board (JPB), the major provisions of the bill are as follows:

1. To add to the court's authority when entering a disposition of an adjudicated delinquent offender, adds to the court's authority in that the court may adjudicate the child and enter an order suspending in whole or in part the disposition;

2. Extending the judgement for juveniles adjudicated to a short-term commitment. Currently only long term commitments can be extended by one year until the child reaches age 21;

3. Establishing minimum parole periods, adds to the current statute, minimum period of ninety days of parole, and

4. Redefining confidential records, adds to the current statute, confidentiality "law enforcement records shall be open to inspection by the parent, guardian or legal custodian of the child". The purpose is to add language/law to the current statutes. There is no appropriation in this bill. Entity's involved in this bill would be the courts, probation/parole departments, juvenile institutions and the JPB.

JPB reports the component that would affect the agency would be the minimum of ninety days of parole.

Significant Issues

AOC reports the Children's Court would be allowed more discretion in the areas of suspension of all or part of the child's disposition and setting the conditions and limitations of the child's probation.

The Department of Public Safety (DPS) reports the three proposed changes would seriously weaken the system that is currently in place to deal with children adjudicated as delinquent. Probably the most alarming aspect of the proposed legislation is that it would make confidential law enforcement records available to the parent, guardian or legal custodian of the child which could seriously compromise legitimate law enforcement interests.

FISCAL IMPLICATIONS

JPB reports HB 491 would not have administrative impact to the agency. Currently, JPB is administratively reviewing every child at 120 days of their expiration of commitment. Presently, JPB is placing appropriate residents on the agenda that JPB feels with wraparound services should finalize their commitments in the community while under supervision. According to HB 491, it indicates "prior to the expiration of short- or long-term commitment, as provided in Section 32A-2-19 NMSA 1978, the child shall be released on parole for a minimum period of ninety days to further the child's reintegration into the community". JPB states that they feel parole is earned and unfortunately, not all youths are eligible for parole. JPB states they would hate to come to the point of "determinate" sentencing or automatic parole. JPB reports, in conclusion, if the full intent of HB 491 is to prevent youth from "falling through the cracks", our current policy (for the past 60 days) addresses this issue.

DPS reports allowing parents, guardians or legal custodians of children access to law enforcement records will have some impact on the Department. The legislation carries no appropriation with it and there is no provision for increased FTE to deal with law enforcement record requests.

ADMINISTRATIVE IMPLICATIONS

According to DPS, the legislation as proposed may have a serious administrative impact upon law enforcement because it would allow parents, guardians or legal custodians of children in the criminal justice system access to confidential law enforcement reports about them. The language allowing access to law enforcement reports has no limitation on it such as exists in the Arrest Record Information Act or the Inspection of Public Records Act. Allowing individuals who are responsible for the children as their parents, guardians or legal custodians access to all law enforcement records could seriously compromise legitimate law enforcement interests, compromise on-going investigations and the safety of law enforcement officers involved in those investigations. It is respectfully submitted that language on page 11 lines 23 through 25, which would allow this access, be deleted from the proposed legislation.

CONFLICT/DUPLICATION/COMPANIONSHIP/RELATIONSHIP

JPB reports in order that HB 491 would not mandate an automatic parole for youth who are not eligible, perhaps the language of the bill could read "any child who has been reviewed and deemed eligible for parole by the juvenile parole board shall be seen by the board for parole ninety days prior to expiration of their commitment."

Also, JPB reports there will always be youth not eligible for parole because of poor behavior in the institutions. The language of the bill should not mandate that every youth be paroled, but rather that they may be eligible for parole. The parole board must be allowed to use their discretionary authority to determine parole of all youths.

32A-7-6. Powers and duties of the Juvenile Parole Board.

Statute text

A. The juvenile parole board shall have the powers and duties to:

(1) grant, deny or revoke parole for children;

(2) conduct or cause to be conducted investigations, examinations, interviews, hearings and other proceedings as may be necessary for the effectual discharge of the duties of the board;

(3) summon witnesses, books, papers, reports, documents or tangible things and administer oaths as may be necessary for the effectual discharge of the duties of the board;

(4) maintain records of its acts, decisions and orders and notify each agency affected by its decisions;

(5) adopt an official seal of which the courts shall take judicial notice;

(6) adopt a written policy specifying the criteria to be considered by the board in determining whether to grant, deny or revoke parole or to discharge a child from parole;

(7) adopt rules and regulations as may be necessary for the effectual discharge of the duties of the board; and

(8) contract or otherwise provide for services, supplies, equipment, office space and other provisions as are necessary to effectively discharge the duties of the board.

B. At least thirty days before ordering any parole, the juvenile parole board shall notify the children's court judge of the judicial district from which legal custody of the child was transferred. The judge may express his views on the child's prospective parole, either in writing or personally, to the board, but the final parole decision shall be that of the board. A copy of the final parole decision shall be filed with the court of original jurisdiction. In the event venue has been transferred pursuant to Section 32-1-8 [32A-1-9] NMSA 1978, a copy of the board's decision shall also be filed with the children's court to which venue has been transferred.

C. Before ordering the parole of any child, the juvenile parole board shall personally interview the child. The board shall furnish to each child paroled a written statement of the conditions of parole, which conditions shall be acknowledged by the child and his parent, custodian or guardian.

D. The juvenile parole board shall provide the child and his parent, custodian or guardian with a written statement of the reason for denying parole within forty-eight hours after the hearing.

TECHNICAL ISSUES

DPS reports, as drafted, the language on lines 20 and 21 on page 2 would require the court to either suspend in whole or part the disposition or to impose a fine. The court would not be able to do both. This language would weaken the current method in place for dealing with children adjudicated as delinquents. The language on lines 20 through 24 on page 8 would require that all children be released on parole for a minimum of ninety days prior to the expiration of their commitment regardless of whether or not they posed a threat to the public or themselves. If such a condition is deemed appropriate, it would be much better to allow the court discretion in allowing a release on parole after balancing the public safety concerns against the need for the child's reintegration into the community. As drafted, the court has no discretion and would be forced to release an individual regardless of whether or not they posed a serious threat to themselves or the public.

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