04/04/2019 01:30 PM Senate STATE AFFAIRS

        SB  32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE                                                                    
                                                                                                                                
3:56:19 PM                                                                                                                    
CHAIR   SHOWER  reconvened   the   meeting   and  announced   the                                                               
consideration  of  SENATE  BILL  NO.  32,  "An  Act  relating  to                                                               
criminal law  and procedure;  relating to  controlled substances;                                                               
relating  to  probation;  relating  to  sentencing;  relating  to                                                               
reports of involuntary commitment;  amending Rule 6, Alaska Rules                                                               
of Criminal Procedure; and providing for an effective date."                                                                    
                                                                                                                                
He noted  the committee last  heard the  bill about a  month ago.                                                               
The  intent  today   is  to  review  and   refresh  the  members'                                                               
understanding  of  the  bill. He  reminded  everybody  that  this                                                               
committee is  looking at the  bill from the state  affairs policy                                                               
perspective and the judiciary perspective.  He described SB 32 as                                                               
foundational to the suite of the Governor's crime bills.                                                                        
                                                                                                                                
3:57:35 PM                                                                                                                    
ROBERT  HENDERSON, Deputy  Attorney  General, Criminal  Division,                                                               
reviewed the drug classifications under  SB 32. He explained that                                                               
SB  32 returns  all drug  laws to  what they  were pre-2016.  The                                                               
primary effect  is that  possession of  Schedule IA  and Schedule                                                               
IIA controlled  substances return  to a  class C  felony offense.                                                               
For someone  with no  criminal history  the presumptive  term for                                                               
that offense is 0-2 years.                                                                                                      
                                                                                                                                
SB 32 also resets the stage  on drug distribution to the pre-2016                                                               
law.  Trafficking or  distributing any  amount of  a Schedule  IA                                                               
controlled substances (heroin, fentanyl,  Carfentanil) is a class                                                               
A felony. Trafficking a Schedule  IIA or Schedule IIIA controlled                                                               
substance  (methamphetamine, cocaine)  is a  class B  felony. The                                                               
amount  that  is trafficked  is  one  factor in  determining  the                                                               
seriousness of  the offense  and location  is another  factor for                                                               
the  court  to  consider.  For  example,  trafficking  heroin  in                                                               
Kotzebue  is  different  than  trafficking  heroin  in  Anchorage                                                               
because it  has a different  impact in each community.  The court                                                               
also considers  the commercial value  of the drug and  the manner                                                               
in which  the drug  is trafficked. This  includes such  things as                                                               
whether  the trafficker  possesses a  firearm or  is using  other                                                               
individuals in the scheme. All  these factors are considered when                                                               
the  court  is  identifying  the  appropriate  sanction  for  the                                                               
conduct. Finally, he  said that SB 32 returns  the manufacture of                                                               
methamphetamine to a class A felony.                                                                                            
                                                                                                                                
4:02:45 PM                                                                                                                    
SENATOR  KAWASAKI asked  him to  clarify what  he said  about the                                                               
location of  the trafficking (such as  Kotzebue versus Anchorage)                                                               
being a factor that the court would consider.                                                                                   
                                                                                                                                
MR. HENDERSON said  he used Kotzebue and Anchorage  as an example                                                               
because supply and  demand dictates that the street  value of the                                                               
same quantities of  a substance like heroin is  much different in                                                               
a  small rural  community than  a large  urban community.  That's                                                               
important because the increased value  of the drug also increases                                                               
the danger  associated with trafficking  that drug.  That someone                                                               
brought a  dangerous drug  into a small  community is  one factor                                                               
the  court  should  be  able  to  consider  when  determining  an                                                               
appropriate sentence for that trafficking offense.                                                                              
                                                                                                                                
SENATOR  KAWASAKI  asked if  that  might  raise equal  protection                                                               
issues.                                                                                                                         
                                                                                                                                
MR. HENDERSON  answered no.  He explained  that the  bill returns                                                               
trafficking  of  heroin to  a  class  A  felony offense  and  the                                                               
presumptive  term of  imprisonment is  5-8 years.  The court  can                                                               
also  find that  the offense  should be  aggravated or  mitigated                                                               
depending on the amount the  person was trafficking. He said it's                                                               
those aggravators and  mitigators that allow the  court to depart                                                               
from that presumptive  range. Pre-2016 there was  robust case law                                                               
that  talked  about how  the  court  should  look at  the  amount                                                               
trafficked throughout  Alaska as an aggravator  or mitigator. For                                                               
these reasons  this provision in SB  32 would not raise  an equal                                                               
protection concern, he said.                                                                                                    
                                                                                                                                
SENATOR  KAWASAKI   asked  if  he  was   finished  reviewing  the                                                               
classifications.                                                                                                                
                                                                                                                                
MR.  HENDERSON  answered  the  he  was  finished  with  the  drug                                                               
overview, but there were other classifications he could discuss.                                                                
                                                                                                                                
SENATOR KAWASAKI said he had  several questions about raising the                                                               
classifications. He  first asked if increasing  possession of any                                                               
amount of a schedule  IA drug such as heroin to  a class C felony                                                               
would include automatic jail time.                                                                                              
                                                                                                                                
MR. HENDERSON  answered by first  reviewing the existing  law. He                                                               
then  explained  that  under  SB 32  the  presumptive  range  for                                                               
conviction of  a class  C felony  is 0-2 years  jail time  so the                                                               
judge  has the  discretion to  impose  no jail  time or  up to  2                                                               
years. He  said the  court needs  to have  the ability  to impose                                                               
certain  jail time  if  the  judge wants  to  order  a person  to                                                               
residential  treatment.  He  also explained  that  the  suspended                                                               
entry  of judgement  would be  available under  SB 32.  This tool                                                               
allows  the prosecution  and the  defense  to agree  that if  the                                                               
offender does  all the things  they're asked to do  on probation,                                                               
the case is then dismissed and the judgement is not entered.                                                                    
                                                                                                                                
4:09:52 PM                                                                                                                    
SENATOR  KAWASAKI asked  if the  proposed penalties  for schedule                                                               
VIA  substances  would  impact the  current  legal  cannabis  and                                                               
marijuana industry.                                                                                                             
                                                                                                                                
MR. HENDERSON  answered no; under  SB 32, the  criminal penalties                                                               
that would attach to the  possession and trafficking of marijuana                                                               
are outside  the regulation of  the legal marijuana  industry. He                                                               
reminded the committee that at  the previous hearing he discussed                                                               
a potential amendment to clarify that point.                                                                                    
                                                                                                                                
4:11:03 PM                                                                                                                    
SENATOR MICCICHE  said he  has an amendment  to clarify  that the                                                               
legal marijuana  industry authorized  in AS  17 is  excepted from                                                               
the increased penalties involving a controlled substance.                                                                       
                                                                                                                                
He also  highlighted that the  suspended entry of judgement  is a                                                               
carrot and  a stick  to help someone  work toward  clearing their                                                               
record by successfully completing a treatment program.                                                                          
                                                                                                                                
4:14:36 PM                                                                                                                    
CHAIR SHOWER held SB 32 in committee.