Report Title:

Sex Assault; Murder; Disposition of Minor Accused

Description:

Permits family court to commit a minor, who commits an act that constitutes sexual assault or murder, to be incarcerated at a youth correctional facility until age 18 then transferred to the custody of the Director of Public Safety until age 26.  (HB3372 HD1)

HOUSE OF REPRESENTATIVES	H.B. NO.	3372
TWENTY-FOURTH LEGISLATURE, 2008		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO SERIOUS OFFENSES COMMITTED BY MINORS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 352-9, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  [In] Except as provided in section 571-48(2), in those cases where the term of commitment to a youth correctional facility extends beyond the person's nineteenth birthday, the person shall be placed on juvenile parole pursuant to the original family court order for the balance of the person's term of commitment; provided that [such] the term does not extend beyond the person's twentieth birthday unless earlier terminated."

     SECTION 2.  Section 352-28, Hawaii Revised Statutes, is amended to read as follows:

     "§352-28  Transfer to correctional facility.  Any person after the person's sixteenth birthday, who has been committed to the care of the director and disrupts the order and the discipline of any state-operated youth correctional facility or injures the staff or other person committed to the facility or for other good cause, may be transferred by the director to an adult correctional facility, with the prior approval of the family court, for the balance of the term provided for by the court.  If [such] the person demonstrates sufficient improvement or progress, or for other good reason, the family court may order the person's return to a youth correctional facility[.]; provided that a person who has been transferred to an adult correctional facility pursuant to an order made under section 571-48 shall not be returned to a youth correctional facility upon attaining the age of eighteen."

     SECTION 3.  Section 571-48, Hawaii Revised Statutes, is amended to read as follows:

     "§571-48  Decree, if informal adjustment or diversion to a private or community agency or program has not been effected.  When a minor is found by the court to come within section 571‑11, the court shall so decree and in its decree shall make a finding of the facts upon which the court exercises its jurisdiction over the minor.  Upon the decree the court, by order duly entered, shall proceed as follows:

     (1)  As to a child adjudicated under section 571-11(1)[:], except as provided in paragraph (2):

         (A)  The court may place the child on probation:

              (i)  In the child's own home; or

             (ii)  In the custody of a suitable person or facility elsewhere, upon conditions determined by the court.

              When conditions of probation include custody in a youth correctional facility, the custody shall be for a term not to exceed one year, after which time the person shall be allowed to reside in the community subject to additional conditions as may be imposed by the court;

         (B)  The court may vest legal custody of the child, after prior consultation with the agency or institution, in a Hawaii youth correctional facility, in a local public agency or institution, or in any private institution or agency authorized by the court to care for children; or place the child in a private home.  If legal custody of the child is vested in a private agency or institution in another state, the court shall select one that is approved by the family or juvenile court of the other state or by that state's department of social services or other appropriate department; or

         (C)  The court may fine the child for a violation which would be theft in the third degree by shoplifting if committed by an adult.  The court may require the child to perform public services in lieu of the fine;

(2) As to a child adjudicated under section 571-11(1) for an act that would constitute an offense under section 707-701, 707-701.5, or 707-730, the court may vest legal custody of the child in a Hawaii youth correctional facility until the child attains the age of eighteen on the condition that the person thereafter be transferred, pursuant to section 352-28, to the custody of the director of public safety to be imprisoned until the person has attained the age of twenty-six.  A minor offender adjudicated under this section may be placed in an adult correctional facility;

    [(2)] (3)  As to a child adjudicated under section 571‑11(2):

         (A)  The court may place the child under protective supervision, as hereinabove defined, in the child's own home, or in the custody of a suitable person or agency elsewhere, upon conditions determined by the court; or

         (B)  The court may vest legal custody of the child, after prior consultation with the agency or institution, in a local governmental agency or institution licensed or approved by the State to care for children, with the exception of an institution authorized by the court to care for children.  If legal custody of the child is vested in a private agency or institution in another state, the court shall select one that is approved by the family or juvenile court of the other state or by that state's department of social services or other appropriate department; provided that the child may not be committed to a public or private institution operated solely for the treatment of law violators;

    [(3)] (4)  An order vesting legal custody of a minor in an individual, agency, or institution under section 571‑11(2) shall be for an indeterminate period but shall not remain in force or effect beyond three years from the date entered, except that the individual, institution, or agency may file with the court a petition for renewal of the order and the court may renew the order if it finds such renewal necessary to safeguard the welfare of the child or the public interest.  The court, after notice to the parties, may conduct a hearing on the petition.  Renewal may be periodic during minority, but no order shall have any force or effect beyond the period authorized by section 571-13.  An agency granted legal custody shall be subject to prior approval of the court in any case in which the child is to reside without the territorial jurisdiction of the court and may be subject to prior approval in other cases.  An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by the court;

    [(4)] (5)  Whenever the court commits a child to the care of the director of human services or executive director of the office of youth services, or vests legal custody of a child in an institution or agency, it shall transmit with the order copies of the clinical reports, social study, and other information pertinent to the care and treatment of the child, and the institution or agency shall give to the court any information concerning the child that the court may at any time require.  [An] Except as provided in paragraph (2), an institution or agency receiving a child under this paragraph shall inform the court whenever the status of the child is affected through temporary or permanent release, discharge, or transfer to other custody.  An institution to which a child is committed under section 571-11(1) or (2) shall not transfer custody of the child to an institution for the correction of adult offenders, except as authorized in this chapter and under chapter 352;

    [(5)] (6)  The court may order, for any child within its jurisdiction, whatever care or treatment is authorized by law;

    [(6)] (7)  In placing a child under the guardianship or custody of an individual or of a private agency or private institution, the court shall give primary consideration to the welfare of the child;

    [(7)] (8)  In support of any order or decree under section 571‑11(1) or (2), the court may require the parents or other persons having custody of the child, or any other person who has been found by the court to be encouraging, causing, or contributing to the acts or conditions which bring the child within the purview of this chapter and who are parties to the proceeding, to do or to omit doing any acts required or forbidden by law, when the judge deems this requirement necessary for the welfare of the child.  The court may also make appropriate orders concerning the parents or other persons having custody of the child and who are parties to the proceeding.  If such persons fail to comply with the requirement or with the court order, the court may proceed against them for contempt of court;

    [(8)] (9)  In support of any order or decree for custody or support, the court may make an order of protection setting forth reasonable conditions of behavior to be observed for a specified time, binding upon both parents or either of them.  This order may require either parent to stay away from the home or from the other parent or children, may permit the other to visit the children at stated periods, or may require a parent to abstain from offensive conduct against the children or each other;

    [(9)] (10)  The court may dismiss the petition or otherwise terminate its jurisdiction at any time;

   [(10)] (11)  In any other case of which the court has jurisdiction, the court may make any order or judgment authorized by law;

   [(11)] (12)  The court may order any person adjudicated pursuant to section 571-11(1) to make restitution of money or services to any victim who suffers loss as a result of the child's action, or to render community service;

   [(12)] (13)  The court may order any person adjudicated pursuant to section 571-11(2) to participate in community service; and

   [(13)] (14)  The court may order the parents of an adjudicated minor to make restitution of money or services to any victim, person, or party who has incurred a loss or damages as a result of the child's action."

     SECTION 4.  Section 706-667, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

     "(3)  Special term.  A young adult defendant convicted of a felony, in lieu of any other sentence of imprisonment authorized by this chapter, may be sentenced to a special indeterminate term of imprisonment if the court is of the opinion that such special term is adequate for the young adult defendant's correction and rehabilitation and will not jeopardize the protection of the public.  When ordering a special indeterminate term of imprisonment, the court shall impose the maximum length of imprisonment, which shall be eight years for a class A felony, five years for a class B felony, and four years for a class C felony.  The minimum length of imprisonment shall be set by the Hawaii paroling authority in accordance with section 706-669.  During this special indeterminate term, the young adult shall be incarcerated separately from career criminals, when practicable.

     This section shall not apply to the offenses of murder, [or] attempted murder[.], or sexual assault in the first degree."

     SECTION 5.  This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on July 1, 2008.