Legislature(2017 - 2018)GRUENBERG 120
02/12/2018 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB315 | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 315 | TELECONFERENCED | |
HB 316-RESTRICT ACCESS MARIJUANA CRIME RECORDS
1:46:18 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 316, "An Act relating to the sealing of certain
court records; restricting the publication of certain records of
convictions on a publicly available website; relating to public
records; and amending Rule 37.6, Alaska Rules of
Administration."
1:46:32 PM
PATRICK FITZGERALD, Staff, Representative Harriet Drummond,
advised that HB 316 is intended to clean up the records from the
Alaska Court System and the permanent records of those Alaskans
convicted of simple possession of marijuana prior to the
legalization of marijuana. The burden of lifelong criminal
records of a crime that is now legal has kept Alaskans from
achieving their fullest potential, he said. This legislation,
he related, is not designed to wipe out records or give a clean
slate to serious offenders, but instead it will eliminate the
obstacles that have kept Alaskans from gaining employment,
advancing in their careers, or qualifying for certifications due
to a simple possession [conviction] on their record. Mothers,
fathers, neighbors, and friends who made mistakes in the past or
were simply in the wrong place at the wrong time, have dealt
with barriers that potentially kept them from achieving a higher
quality of life, and stressed that this is not a "pot bill, this
is a jobs bill." The recreational use of marijuana was enacted
on 11/7/16, and since that time Alaska has received millions of
dollars in state revenue has been generated from cannabis
businesses and small business owners who have started to prosper
in the cannabis economy. Many Alaskans have benefited from the
legalization of cannabis and now there is a chance to expand
that group by eliminating the barriers that are holding Alaskans
back and stunting their ability to become productive and
contributing members of society, he advised.
1:48:24 PM
REPRESENTATIVE KREISS-TOMKINS moved to adopt CSHB 316, Version
30-LS1017\O, Martin, 2/8/18 as the working document. There
being no objection, Version O was before the committee.
1:48:58 PM
REPRESENTATIVE KOPP referred to CSHB 316, [AS 12.62.160(f)] page
1, line 6, asked whether this is inclusive of the Alaska Court
System and all other agencies that may release this information.
MR. FITZGERALD advised that the intent of the bill is to include
multiple agencies and not simply restrict it to the Alaska Court
System or the Department of Public Safety (DPS).
1:49:33 PM
REPRESENTATIVE EASTMAN asked Mr. Fitzgerald to list all of the
items on the schedule VIA controlled substance list.
MR. FITZGERALD advised that it is defined within CSHB 316,
Section 1, AS 12.62.160 of the sectional analysis located on
BASIS, which read as follows:
Schedule VIA definition: AS 11.71.190 (a) a substance
shall be placed in schedule VIA if it is found under
AS 11.71.120 to have the lowest degree of danger or
probable danger to the person or public.
(b) marijuana is a schedule VIA controlled
substance.
1:50:27 PM
REPRESENTATIVE EASTMAN asked whether there is anything on that
list aside from marijuana.
MR. FITZGERALD answered no.
1:50:42 PM
REPRESENTATIVE LEDOUX asked how many prosecutions have taken
place since the Ravin v. State, 537 P.2d 494 (Alaska 1975)
decision for the personal use of marijuana.
MR. FITZGERALD answered that the sponsor does not have any solid
numbers because this bill would have to become a law in order
for the court and different agencies to comb through and
determine exactly where this applies. However, he said, the
sponsor has seen statistics of roughly 700 individuals in the
Alaska Court System that this would pertain to since 2007.
1:51:38 PM
REPRESENTATIVE LEDOUX asked whether the 700 people were
originally charged solely with simple possession of marijuana.
It was her understanding that, for quite some time, Alaska was
not charging people with simple possession under the Ravin
decision because it would be unconstitutional. Perhaps, she
suggested, those people were charged with something else, such
as sales and plea bargained it down to a simple possession.
MR. FITZGERALD responded that the intent of HB 316 is with
regard to the standalone possession charge and if the person was
convicted of dealing, this bill would not apply. He said he
would get back to the committee after researching the question.
REPRESENTATIVE KOPP said, "There was a never-never land, so to
speak" of marijuana as to when it was and was not enforced.
Under Ravin, law enforcement did not cite if it found marijuana
in a home under four ounces. As a matter of practice, he opined
that there was not a law enforcement agency in Alaska that was
actively enforcing the law after the Ravin decision if it was in
a private residence. Although, if a person was contacted in the
street, car, or public place, a number of citations/summons
could be written for simple possession, the class B misdemeanor
tickets that fell outside of the scope of personal use in a
home. He explained that that was the reason for the disparity
and, as Mr. Fitzgerald pointed out, hundreds of citations were
still issued after Ravin because other than in a home, the law
was enforced. Although, he mused, the tooth fairy would have
had to literally deliver it to the home.
1:54:12 PM
REPRESENTATIVE LEDOUX asked Representative Kopp if something
else was involved in most of these instances where a person was
prosecuted.
REPRESENTATIVE KOPP answered that this bill actually precludes
any case where there was an associated charge the person would
not be eligible for confidentiality.
Therefore, it would only pertain to the cases with no associated
charge, which often happens when law enforcement comes upon a
vehicle parked out of sight at 3:00 a.m., and it is a couple of
people smoking marijuana. Oftentimes, he said, the only result
of that contact is a class B misdemeanor summons for smoking
marijuana, and that is all. The nature of the circumstances
with no other associated charge was not uncommon, he pointed
out.
1:55:25 PM
REPRESENTATIVE LEDOUX asked whether there are any statistics as
to the job application issue, and how that has affected people
in real life.
REPRESENTATIVE KOPP reminded the committee that one of the
problems with the under 21-years of age possession is that even
an alcohol offense could prevent acceptance into the military,
attending military school, and federal aid for education loans
due to a substance abuse related offense. Two years ago, the
legislature decided to treat under 21-years of age possession as
a violation for a first-time offender for that very reason.
Similarly, he said, this legislation would have a significant
employment impact because it would be considered a substance
abuse offense/conviction of record.
1:56:52 PM
REPRESENTATIVE EASTMAN asked exactly where the language of the
bill refers to the fact that if there was another charge, it
would not come up under confidentiality. He referred to CSHB
316, [Sec. 2, AS 22.35.040(2)], page 2, line 5, which read as
follows:
(2) was not convicted of any other charge in
that case.
REPRESENTATIVE EASTMAN said he was trying to reconcile the
sponsor's information and the bill language. In response to
Representative LeDoux's question, he advised that the entire
Arctic Valley side of Fort Richardson is not gated and
frequently people were found "doing illegal things" in that part
of the base. He said he could not remember a single time that
the only illegal thing the people were doing was possessing
marijuana, "that would be very rare."
CHAIR CLAMAN, in response to Representative Eastman's earlier
query, the bill makes clear that the legislation is only for
standalone convictions for marijuana is on page 4, lines 15-18,
and pointed to lines 17-18, which read as follows:
(18) ... if the defendant was not convicted
of any other charges in that case.
1:58:27 PM
REPRESENTATIVE LEDOUX said that she wanted to make it clear that
a person could not be convicted of another charge, but if they
were charged with a more serious crime, conceivably it might be
reduced under a plea bargain to simple possession of marijuana.
Possibly, she suggested, many of these 700 people may have
committed another crime other than "simply smoked a joint."
MR. FITZGERALD deferred to Nancy Meade, Alaska Court System. He
opined that the manner in which this bill is crafted, it would
be a small number of people because the intent is standalone
possession of marijuana.
REPRESENTATIVE LEDOUX argued that it may be the intent of the
legislation, but the result of it is that it expunges a
conviction that may have been entered into as a plea bargain
when someone was charged with a more significant crime.
2:00:28 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, advised that
she had delivered statistics to the bill sponsor's office that
was limited to cases with convictions under the possession of
marijuana provision. Representative LeDoux was correct, she
advised, many of those cases that ended up with a conviction of
a class B misdemeanor may well have included other charges. She
explained that a great majority of cases are resolved via a
person plea bargaining to something less than the original
charge. She advised that she does not have the data as to the
frequency of that taking place, but she suspects it happened in
a good number of these cases.
2:01:19 PM
REPRESENTATIVE EASTMAN asked whether Ms. Meade was aware of any
cases where a plea bargain resulted in a charge that was higher
than the original charge.
MS. MEADE answered that she is not the expert on plea bargains
as it is conducted by the Department of Law (DOL), but in her
experience she would say that would not occur.
2:01:56 PM
CHAIR CLAMAN opened public testimony on CSHB 316.
2:02:26 PM
PETER MLYNARIK commented that he did not know whether the
records would be sealed for those people age 18-21 years because
it is illegal for them to possess marijuana. He said that he
agrees with Representative LeDoux, "if convicted" because many
of these people received other charges and pled down to this
misdemeanor possession. Other laws have been changed from
misdemeanors to violations, and he asked whether, in all
fairness, those people should have their records sealed. Also,
he said, there have been changes from felonies to misdemeanors
wherein the person is a felon but now it was changed to a
misdemeanor, like most of the drug possession laws for heroin,
and asked whether that person's records should be sealed to
prevent this felony conviction in order to look for a job. In
the marijuana business, he offered, there are not any criminal
convictions that prevent a person from obtaining a marijuana
handler's permit. In that regard, the person could work in the
marijuana industry without any problem, and even if they own a
license there is only a two-year window. He offered concern
with the legislation isolating out this one crime and sealing
the records because only a small percentage of people have been
convicted strictly for simple possession.
CHAIR CLAMAN advised the committee that Mr. Mlynarik testified
on his own behalf and not in his capacity as the Soldotna Chief
of Police.
2:04:59 PM
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on CSHB 316.
2:05:11 PM
REPRESENTATIVE EASTMAN offered a scenario wherein a criminal law
made an action illegal one year, and then legal the next year,
and asked what opportunities are available to an individual who
would fall under that scenario to sue for damages or otherwise
try to exercise rights not available to them under the current
law. He further asked what happens when an illegal [criminal]
law becomes legal if someone was harmed by the fact that the law
existed in the first place and can argue that they did not get a
job and now they are poor and destitute. He asked whether that
person has a claim.
REPRESENTATIVE LEDOUX commented that she has been a firm
supporter that the initiative, voted for by the people, should
not be changed in any manner, shape, or form. She advised that
a person cannot pick and choose in a society of laws, by which
law they choose to abide. The convicted persons knew they were
doing something illegal and she does not believe that simply
because the legislature changed the law that that person's
record should be sealed.
2:08:02 PM
REPRESENTATIVE KOPP, in response to Representative Eastman's
question, offered an example of a real problem in the law that
has nothing to do with drugs or alcohol. He explained that
approximately 20-years ago, the Municipality of Anchorage had a
more restricted law regarding carrying concealed weapons and
bumped up against the fact that statewide a person could carry a
handgun in their car, shoot the gun at the gun range, and there
would be no problem, except if they drove into Anchorage it was
a misdemeanor charge. People arriving from out of town were
shocked that a contact with law enforcement ended up with them
receiving a misdemeanor summons, or worse. Finally, he advised,
the Supreme Court struck it down and ruled that under AS 44, the
state has supremacy with gun laws. Except, there were many
people with misconduct involving weapons, which is a lower
degree misdemeanor offense, due to a disparity in the law.
Representative Eastman's question was whether people would have
recourse if they had a crime on their record which then became
legal. Some people may feel there is a moral turpitude in
having a gun in the car, but he is not in that camp, he said.
Representative Eastman pointed to a problem in the current law
where it is difficult to receive expungement or anything off of
a person's record even if they have very sound reasons to remove
it from their record.
2:10:09 PM
REPRESENTATIVE KREISS-TOMKINS said he wondered whether any sort
of measures were taken after prohibition ended for bootleggers
or people illegally consuming alcohol, and whether their records
were expunged federally or otherwise. He said he offered his
comment for fodder for the sponsor's office to perhaps research
this issue.
2:11:01 PM
REPRESENTATIVE LEDOUX, in response to Representative Kopp's
comments regarding the Municipality of Anchorage, she opined
that there would be a different standard when a law was declared
unconstitutional and there might be a way someone having their
record expunged. She explained that there is a difference in
the case of a violation of an unconstitutional law which never
should have been on the books in the first place because it was
unconstitutional, rather than simply a law that was changed due
to a change of policy. She related that in her view they are
separate issues.
2:12:21 PM
REPRESENTATIVE KOPP advised that under Ravin, the court ruled
that it was unconstitutional due to a citizen's right to
privacy, and the state would not have an interest in enforcing
criminalizing marijuana in the home if it was under four ounces.
He said that it is the same, in the weapon issue, the disparity,
and the drug possession issue where the Supreme Court found
issues under the constitution.
REPRESENTATIVE KOPP remarked that it is an under 21-years of age
violation for a simple possession, without a plea agreement, and
it would truly be a standalone charge by itself. He said he
thought there were different ways to craft this legislation to
get at the intent wherein simple possession was the sole
standalone issue.
2:13:52 PM
CHAIR CLAMAN referred to the question of post-conviction relief
and noted, for example, the Municipality of Anchorage charges,
wherein a person would probably be in good shape if they
continued to appeal their conviction on constitutional grounds
and the court subsequently ruled that it was unconstitutional,
the person would win on their pending case. Except, it becomes
more problematic if the person was convicted and did not appeal
their conviction, and now there is this conviction on their
record on a statute that later became unconstitutional. In the
world of post-conviction relief, sometimes people can go back
post-conviction and receive relief on those grounds if the
statute was later declared unconstitutional. Under those
circumstances it is rare that damages could be recovered from
the state for having prosecuted a person for a crime it believed
at the time was constitutional. Those, he offered, are just one
of a myriad of challenges and it is interesting in this case in
which the discussion is about a statute to create expungement.
He added that the history of many Alaska governors going back in
time is that the governors rarely use their clemency power to
grant pardons. In the event a governor so desired, they could
go back and grant pardons to everyone with old marijuana
convictions, which could solve the legislature's problem.
2:15:52 PM
REPRESENTATIVE EASTMAN asked whether expungement was not an
option available to the legislature because that would get into
a separation of powers issue where the executive branch is given
the opportunity to expunge or grant clemency. He asked whether
that was the reason the sponsor went this way or was there
another reason.
MR. FITZGERALD responded that when researching this bill, the
sponsor was told not to use the word "expungement" and therefore
the language stays away from that word in this bill. The idea
behind the bill, he explained, is confidentiality with the court
system and withholding the schedule VIA misdemeanor conviction
from public access
2:16:53 PM
REPRESENTATIVE EASTMAN said that in going this route of
confidentiality, there is a significant difference between
making a conviction confidential and expunging the record. He
pointed out that if someone applied for a job and must list any
convictions, if their record was deemed confidential, would they
be lying on the application if they said there had been no
convictions.
MR. FITZGERALD answered that this issue was brought to the
sponsor's attention. The intent of this bill is that any sort
of court or state authority, state troopers, Anchorage Police
Department, and so forth, would have access to the records, but
the conviction for simple possession would be withheld from the
private employer.
2:18:42 PM
REPRESENTATIVE EASTMAN said he understands the idea of trying to
help someone with job applications by making the information
confidential, except if the only way the person is being helped
is simply by letting them lie on an application and making it
harder for their lie to be found out. He said he was unsure
that was actually helping the person.
MR. FITZGERALD advised he will perform research on that issue
and get back to the committee.
2:19:23 PM
REPRESENTATIVE LEDOUX pointed out to Representative Kopp that
the issue is not exactly the same with the unconstitutionality
issue because under Ravin, the court decided it was
unconstitutional in the home, it did not say it was
unconstitutional outside of the home.
REPRESENTATIVE KOPP said that in both cases, the Supreme Court
found constitutional violations and on those constitutional
grounds the cases were dismissed.
[HB 316 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB315 ver A 2.9.18.PDF |
HJUD 2/9/2018 1:00:00 PM HJUD 2/12/2018 1:30:00 PM HRES 3/21/2018 1:00:00 PM HRES 3/23/2018 1:00:00 PM HRES 3/26/2018 1:00:00 PM HRES 4/2/2018 1:00:00 PM |
HB 315 |
| HB315 Additional Document-DEC Memo Regarding SB164 and Alaska Grown 2.12.18.pdf |
HJUD 2/12/2018 1:30:00 PM HRES 3/21/2018 1:00:00 PM HRES 3/23/2018 1:00:00 PM HRES 3/26/2018 1:00:00 PM HRES 4/2/2018 1:00:00 PM |
HB 315 SB 164 |
| HB316 Work Draft Committee Substitute ver O 2.12.18.pdf |
HJUD 2/12/2018 1:30:00 PM HJUD 2/26/2018 1:00:00 PM |
HB 316 |
| HB316 Sponsor Statement 2.12.18.pdf |
HJUD 2/12/2018 1:30:00 PM |
HB 316 |
| HB316 Sectional Analysis ver O 2.12.18.pdf |
HJUD 2/12/2018 1:30:00 PM |
HB 316 |
| HB316 Fiscal Note DPS-CJISP 2.12.18.pdf |
HJUD 2/12/2018 1:30:00 PM HJUD 2/26/2018 1:00:00 PM |
HB 316 |