Legislature(2019 - 2020)GRUENBERG 120

03/25/2019 01:00 PM JUDICIARY

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Audio Topic
01:04:16 PM Start
01:04:56 PM HB49
03:02:35 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 49 CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE TELECONFERENCED
Heard & Held
        HB  49-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE                                                                    
                                                                                                                                
1:04:56 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.  49  "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."                                                                       
                                                                                                                                
1:05:28 PM                                                                                                                    
                                                                                                                                
ROB  HENDERSON,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department of  Law (DOL) said the  overarching theme of HB  49 is                                                               
the  restoration of  discretionary  options  to law  enforcement,                                                               
prosecutors, and  judges for the  purpose of  addressing criminal                                                               
behavior.   He stressed that  no two  offenders are the  same, no                                                               
two circumstances are  the same, and no two crimes  are the same.                                                               
He said judges and prosecutors  need options to address each case                                                               
individually  and to  fashion a  sentence that  is unique  to the                                                               
offender.                                                                                                                       
                                                                                                                                
MR. HENDERSON said HB 49  would return drug crime sentencing laws                                                               
to what they  were before 2016.  In 2016,  he explained, a tiered                                                               
system   was  enacted   that   effectively   lowered  most   drug                                                               
trafficking  penalties,  including  the amount  of  incarceration                                                               
that can be imposed for drug  trafficking.  He said these changes                                                               
hampered efforts to combat drug trafficking in Alaska.                                                                          
                                                                                                                                
MR. HENDERSON  offered an example  to illustrate this point.   He                                                               
said that, before 2016, a person  trafficking 5 grams of heroin                                                                 
about  50 individual  doses    was  guilty of  a  class A  felony                                                               
offense subject to  a sentencing range of 5 to  8 years, assuming                                                               
no prior criminal history.  Now,  he said, that same person would                                                               
be guilty  of a class  B felony  offense subject to  a sentencing                                                               
range of 0 to 2 years.                                                                                                          
                                                                                                                                
1:08:50 PM                                                                                                                    
                                                                                                                                
MR.  HENDERSON said  that, prior  to  2016, the  amount of  drugs                                                               
someone was  dealing was  just one factor  used to  determine the                                                               
severity of  the offense.   Now, he explained, the  tiered system                                                               
makes the  amount of drugs  the central  focus.  He  listed other                                                               
factors  used  prior to  2016:  the  manner of  trafficking,  the                                                               
commercial value  of the drug,  and the availability of  the drug                                                               
in  the community.    He  clarified that  5  grams  of heroin  in                                                               
Kotzebue is very  different from 5 grams of  heroin in Anchorage.                                                               
He said that,  prior to 2016, the court would  consider all these                                                               
factors when  imposing an  appropriate sentence.   Now,  he said,                                                               
the amount  of drugs  a person  has when  he/she is  arrested for                                                               
trafficking  is the  primary factor  for determining  whether the                                                               
crime is a class B or class C felony.                                                                                           
                                                                                                                                
MR. HENDERSON said if a  person today is arrested for trafficking                                                               
under 1  gram of heroin  or under 2.5 grams  of a Schedule  II or                                                               
IIIA controlled substance, like  methamphetamine or cocaine, that                                                               
person is guilty of  a class C felony offense.   If the amount of                                                               
heroin is over  1 gram or the  amount of the Schedule  II or IIIA                                                               
controlled substance is over 2.5  grams, that person is guilty of                                                               
a  class   B  felony.     He  said   HB  49  would   return  drug                                                               
classification and sentencing schemes to pre-2016 levels.                                                                       
                                                                                                                                
1:11:20 PM                                                                                                                    
                                                                                                                                
MR.  HENDERSON said  HB 49  would also  revert possession  of the                                                               
most serious  drugs like heroin, cocaine,  fentanyl, carfentanil,                                                               
and methamphetamine  to a class  C felony offense.   He explained                                                               
that changes  made in  2016 rendered possession  of most  drugs a                                                               
misdemeanor  offense.   Those changes,  he  noted, also  prohibit                                                               
active jail time  until the third offense.  He  said this means a                                                               
person  convicted of  possessing heroin  for the  first time  now                                                               
faces a  maximum sentence of 90  days with 90 days  suspended, so                                                               
no active  incarceration.  He said  a second offense nets  a 180-                                                               
day sentence with 180 days suspended.   It is not until the third                                                               
offense, he said, that active incarceration is permitted.                                                                       
                                                                                                                                
MR. HENDERSON  stated that  the 2016  sentencing changes  had two                                                               
impacts.     The  first,  he   said,  was  a   deprioritizing  of                                                               
enforcement  and  prosecution  for   drug  trafficking  and  drug                                                               
possession.    He  noted that  law  enforcement  and  prosecutors                                                               
always prioritize  felonies over  misdemeanors and  violent cases                                                               
over nonviolent  cases.   He said that  when drug  possession was                                                               
reclassified  to  a misdemeanor  offense,  it  became less  of  a                                                               
prosecutorial  priority.   As  a result,  he  said,  felony  drug                                                               
possession   dropped approximately 70  percent from 2015 to 2017.                                                               
He  said the  Department of  Public Safety  (DPS) describes  this                                                               
phenomenon as  institutional inertia     He said returning to the                                                               
pre-2016 drug classification and  sentencing scheme would restore                                                               
priority,  which  he  described  as  "important  given  the  drug                                                               
epidemic we're seeing across the state."                                                                                        
                                                                                                                                
1:15:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL  asked  for  Mr. Henderson  to  repeat  what                                                               
dropped between 2015 and 2017.                                                                                                  
                                                                                                                                
MR.  HENDERSON answered  that  felony  drug prosecutions  dropped                                                               
approximately 70% between 2015 and 2017.                                                                                        
                                                                                                                                
REPRESENTATIVE WOOL noted  that the pre-2016 laws  were in effect                                                               
when the  drop began in  2015.  He  posited that the  decrease in                                                               
felony   prosecutions  is   not   attributable   to  changes   in                                                               
sentencing.                                                                                                                     
                                                                                                                                
MR. HENDERSON  said he does  attribute the decrease  to statutory                                                               
changes.   He said that  DOL prosecuted approximately  900 felony                                                               
drug cases in 2016 but only about 320 in 2017.                                                                                  
                                                                                                                                
REPRESENTATIVE  WOOL suggested  that it  is reasonable  to expect                                                               
felony  drug  prosecutions  to decrease  when  crimes  that  were                                                               
previously felonies get reclassified.                                                                                           
                                                                                                                                
MR.  HENDERSON   said  that  is   correct.    He   reported  that                                                               
misdemeanor  drug prosecutions  have  not  increased, but  rather                                                               
decreased.  He said DOL  prosecuted 750 misdemeanor drug cases in                                                               
2015, approximately  180 in 2016,  and then approximately  500 in                                                               
2007.   He stressed  that the priorities  of law  enforcement and                                                               
prosecution  have  been refocused  on  offenses  outside of  drug                                                               
trafficking and drug possession.                                                                                                
                                                                                                                                
1:18:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked why it  is deemed necessary to return                                                               
to pre-2016 laws rather than  simply instructing DOL to prosecute                                                               
more drug cases.                                                                                                                
                                                                                                                                
MR.  HENDERSON  said  DOL  only prosecutes  the  cases  that  are                                                               
referred  to  it.    Thus,   he  said,  if  law  enforcement  has                                                               
deprioritized those investigations,  that impacts referrals which                                                               
in turn decreases prosecutions.                                                                                                 
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked  why  the Office  of  the  Attorney                                                               
General  cannot  work with  law  enforcement  to prioritize  drug                                                               
crimes, even if they are just misdemeanors.                                                                                     
                                                                                                                                
MR.  HENDERSON said  the  attorney  general could  do  that.   He                                                               
stressed  that DOL  prioritizes cases  because its  resources are                                                               
limited.   He said if the  legislature reclassifies a crime  as a                                                               
misdemeanor,  it  sends  a  message  that the  crime  is  not  as                                                               
important as a felony.  He  said felonies should take priority as                                                               
they are more serious crimes.                                                                                                   
                                                                                                                                
REPRESENTATIVE  LEDOUX asked  if DOL,  since it  is working  with                                                               
limited  resources,   would  have  to   deprioritize  prosecuting                                                               
violent crimes to allow for more drug possession prosecutions.                                                                  
                                                                                                                                
MR. HENDERSON referred  to the attached fiscal note.   He said it                                                               
anticipates an increased number of drug cases referred to DOL.                                                                  
                                                                                                                                
REPRESENTATIVE  LEDOUX hypothesized  that, with  the same  fiscal                                                               
note  and same  money,  DOL  could just  add  three  to five  new                                                               
prosecutors  to   handle  drug   possession  cases   without  the                                                               
sentencing law having to be changed.                                                                                            
                                                                                                                                
MR.  HENDERSON answered  "hypothetically ...  yes," assuming  law                                                               
enforcement reprioritized drug cases  and the number of referrals                                                               
to DOL returns to pre-2016 levels.                                                                                              
                                                                                                                                
CHAIR CLAMAN  mentioned that the  House Law  Finance Subcommittee                                                               
supported the addition of five prosecutors.                                                                                     
                                                                                                                                
1:23:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL  asked for  the  justification  - except  to                                                               
increase conviction  numbers - for making  simple drug possession                                                               
a felony?                                                                                                                       
                                                                                                                                
MR.  HENDERSON  said  there  are  two reasons.    The  first,  he                                                               
explained,  is  that  the  current  sentencing  scheme  does  not                                                               
incentivize offenders  to engage in  treatment.  He  stressed the                                                               
importance of  treatment and  rehabilitation.   He said  the pre-                                                               
2016  sentencing   scheme  allowed  DOL  to   offer  a  suspended                                                               
imposition of  sentence in exchange  for an offender  engaging in                                                               
drug treatment.   He noted  that HB 49 would  not do away  with a                                                               
tool created in 2016 that allows  DOL to offer suspended entry of                                                               
judgment,  which means  that an  offender  who completes  his/her                                                               
terms  of probation  has his/her  case  dismissed.   He said  DOL                                                               
wants  to  encourage  individuals  to  engage  in  treatment  and                                                               
incentivize them against  continuing their drug-related behavior.                                                               
He stressed  that, regardless of  whether the amount of  drugs is                                                               
small, the impact  that those drugs have  on Alaska's communities                                                               
is real and significant.                                                                                                        
                                                                                                                                
MR.  HENDERSON  said the  second  justification  is the  criminal                                                               
activity  associated with  drug  possession.   He  spoke to  data                                                               
linking drug use  to other crimes.  He said  if DOL can intervene                                                               
with a  drug possessor,  it might  prevent a  second intervention                                                               
for another different criminal act.                                                                                             
                                                                                                                                
1:26:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL asked  Mr.  Henderson to  clarify his  claim                                                               
that 5 grams of heroin in  Anchorage is different from 5 grams of                                                               
heroin in Kotzebue.                                                                                                             
                                                                                                                                
MR.  HENDERSON  pointed to  the  impact  of  those drugs  on  the                                                               
community.   He said 5 grams  of heroin affects more  people in a                                                               
small  community  like Kotzebue  than  it  does  in a  city  like                                                               
Anchorage.                                                                                                                      
                                                                                                                                
1:27:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN asked if  prosecutors have seen any change                                                               
in violent crimes since the passage  of Senate Bill 91 [passed in                                                               
the Twenty-Ninth  Alaska State Legislature].   He asked  how that                                                               
change or lack thereof impacts proposed sentencing reforms.                                                                     
                                                                                                                                
MR. HENDERSON said  he thinks everybody in the state  has seen an                                                               
increase  in  violent  acts.    He  referred  to  DPS  data  that                                                               
indicates the overall  crime rate is up 25 percent  over the last                                                               
five years.   He said the violent crime rate  is up approximately                                                               
34 percent  and the  property crime rate  is up  approximately 22                                                               
percent.                                                                                                                        
                                                                                                                                
CHAIR CLAMAN asked him to clarify the time range for that data.                                                                 
                                                                                                                                
MR. HENDERSON said he believes the  trend is from 2017 going back                                                               
five years.                                                                                                                     
                                                                                                                                
CHAIR CLAMAN  clarified that this  means the dataset  begins with                                                               
2012.                                                                                                                           
                                                                                                                                
1:29:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN addressed Mr.  Henderson's point about DOL                                                               
prosecuting  fewer  drug  crimes  than   before.    He  asked  if                                                               
prosecutors  have  noticed  any  change  in  incidences  of  drug                                                               
crimes.                                                                                                                         
                                                                                                                                
MR. HENDERSON answered, "The  prosecution numbers generally track                                                               
the  [Uniform   Crime  Reporting]  (UCR)  numbers."     He  said,                                                               
generally speaking,  the largest increases across  the state have                                                               
been in violent crimes.   He said felony assault prosecutions and                                                               
robbery prosecutions are increasing,  and that is consistent with                                                               
DPS crime data.                                                                                                                 
                                                                                                                                
1:30:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN remarked  that law  enforcement, when  it                                                               
decides   which   crimes   to   investigate,   must   take   into                                                               
consideration both the less severe  penalties for drug crimes and                                                               
the increase in violent crimes.  He asked if that is correct.                                                                   
                                                                                                                                
MR. HENDERSON  said, "That  is accurate.    He restated  that the                                                               
Criminal   Division  always   prioritizes  violent   crimes  over                                                               
nonviolent crimes.                                                                                                              
                                                                                                                                
1:32:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX, asked  Mr. Henderson  to further  clarify                                                               
his claim that  5 grams of heroin impacts more  people in a place                                                               
like Utqiagvik than it does in  a city like Anchorage.  She asked                                                               
if he  meant that  the drugs  impact a  larger percentage  of the                                                               
population rather than a higher number of people.                                                                               
                                                                                                                                
MR. HENDERSON  responded that drugs  impact "a  higher percentage                                                               
per  capita"   in  smaller  communities.     He  recommended  the                                                               
committee discuss  with DPS the  distribution and  trafficking of                                                               
heroin in small communities.                                                                                                    
                                                                                                                                
1:34:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WOOL  said the committee was  previously presented                                                               
crime statistics  that found no correlation  or causation between                                                               
drug crime and  other types of crime.  He  asked Mr. Henderson to                                                               
speak to that.                                                                                                                  
                                                                                                                                
MR. HENDERSON  answered that he  believes there is  a correlation                                                               
between the use of synthetic opioids and the overall crime rate.                                                                
                                                                                                                                
1:35:35 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN asked  Mr. Henderson  to confirm  that felony  drug                                                               
prosecutions  are down  but overall  felony prosecutions  are up,                                                               
which means violent crimes make  up a higher percentage of felony                                                               
prosecutions.                                                                                                                   
                                                                                                                                
MR. HENDERSON answered that is correct.                                                                                         
                                                                                                                                
1:36:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  asked  if  the  reasoning  for  imposing                                                               
higher  sentences  for  drug crimes  in  smaller  communities  is                                                               
because those  communities are  not used  to dealing  with harder                                                               
drugs such  as cocaine.   He  compared this  to an  alcohol crime                                                               
occurring in a dry community.                                                                                                   
                                                                                                                                
CHAIR  CLAMAN   asked  Representative  Eastman  to   revisit  the                                                               
question later.   He  requested that  Mr. Henderson  continue his                                                               
presentation.                                                                                                                   
                                                                                                                                
1:37:13 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON  said Representative  Eastman's comments  provide a                                                               
segue  to the  overall  sentencing  scheme and  how  HB 49  would                                                               
return  it to  pre-2016  levels.   He said  the  reason for  this                                                               
reversion   is  because   individual   offenses  and   individual                                                               
offenders affect  different communities differently.   He said HB                                                               
49 would  increase the  discretion of  prosecutors and  judges to                                                               
account  for  various  factors  when  imposing  or  fashioning  a                                                               
sentence.      He   said   these   concepts   include   community                                                               
condemnation,  reaffirmation of  societal  norms, seriousness  of                                                               
the offense, and the rights of  the victim.  He said returning to                                                               
the pre-2016 sentencing scheme would  allow for the imposition of                                                               
greater  sentences,   when  appropriate,  in  a   community  like                                                               
Utqiagvik or  Kotzebue.  He noted  that a judge who  lives in and                                                               
is  a  part  of  a   tight-knit  community  would  know  how  the                                                               
circumstances of a particular offense impacts the community.                                                                    
                                                                                                                                
1:39:40 PM                                                                                                                    
                                                                                                                                
MR.  HENDERSON   said  that  in  2016   the  legislature  lowered                                                               
sentences for  most felony offenses.   He referred  the committee                                                               
to  a document  included in  the committee  packet titled  "HB 49                                                               
Classification  and  Sentencing Highlights."    He  pointed to  a                                                               
table  on page  1  of  that document  displaying  the changes  in                                                               
felony sentences  that would occur should  HB 49 become law.   He                                                               
said  the presumptive  range of  most felony  sentences would  be                                                               
elevated  by approximately  one  to two  years  depending on  the                                                               
classification  and   the  offender's   criminal  history.     He                                                               
explained  that Alaska  law  sets forth  a  sentencing range  for                                                               
felony offenses that  takes into account whether the  felony is a                                                               
class  A, B,  or C  felony, as  well as  the offender's  criminal                                                               
record.   He said HB  49 would  return the presumptive  ranges to                                                               
pre-2016 levels.                                                                                                                
                                                                                                                                
MR. HENDERSON said HB 49  would return the presumptive sentencing                                                               
range  for  class  A  misdemeanors  to  0  to  365  days,  giving                                                               
discretion to  the judge for  fashioning the sentence.   He noted                                                               
that the current  presumed sentence for a class  A misdemeanor is                                                               
30  days.   For  class  B  misdemeanors,  he  said, HB  49  would                                                               
increase the  current presumptive  range of  0 to 10  to 0  to 90                                                               
days.                                                                                                                           
                                                                                                                                
1:42:57 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON  addressed aspects of  HB 49 that are  unrelated to                                                               
changes made in  2016.  He said HB 49  would create a generalized                                                               
terroristic threatening  statute to address circumstances  when a                                                               
person makes  a real  threat as  opposed to a  false threat.   He                                                               
explained that,  under current  law, the  terroristic threatening                                                               
statute  requires the  threat be  false before  it is  a criminal                                                               
offense.                                                                                                                        
                                                                                                                                
MR. HENDERSON said HB 49 would  also expand the use of the Alaska                                                               
Public Safety Information  Network (APSIN), which he  said can be                                                               
thought of  as a  "rap sheet,"  for use in  a grand  jury setting                                                               
when  it  is  necessary  to   prove  the  existence  of  a  prior                                                               
conviction as an element of the offense.                                                                                        
                                                                                                                                
1:45:00 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed sections 3 through  18 of HB 49.  He said                                                               
these sections  would repeal  the automatic  inflation adjustment                                                               
provision for Alaska's theft statutes.   He explained that, under                                                               
current law, the amount stolen is  an element of the offense.  He                                                               
said a person  is guilty of second-degree theft  if he/she steals                                                               
more  than  $750  of  property.    In  2016,  he  explained,  the                                                               
legislature created  a system  that automatically  increases that                                                               
amount every five  years as calculated by the  rate of inflation.                                                               
He  said this  system  goes  into effect  in  2020  and that  the                                                               
authority to calculate the inflation  adjustment was delegated to                                                               
the Alaska Judicial Council (AJC).                                                                                              
                                                                                                                                
MR. HENDERSON  said the first  reason these provisions  should be                                                               
repealed  is because  DOL  feels  the delegation  to  AJC was  an                                                               
improper delegation from the legislature  to the judicial branch,                                                               
of which AJC is  a part.  He said the  legislature is entitled to                                                               
delegate certain  authority to the  executive branch,   but there                                                               
is  a concern  that by  delegating to  the judicial  branch, that                                                               
delegation would be ineffective.    He said the second reason for                                                               
the  repeal is  based  on the  public debate  of  Senate Bill  54                                                               
(passed in  the Thirtieth Alaska  State Legislature) in  the fall                                                               
of 2017.   He said that during that process,  the legislature and                                                               
governor  experienced significant  debate from  the public  as to                                                               
what the  threshold amount  should be.   He  said Senate  Bill 54                                                               
lowered the felony  threshold from $1,000 to $750.   He said that                                                               
process,  informed by  public input,  was important.   He  stated                                                               
that  the automatic  inflation adjustment  removes public  debate                                                               
from the process.                                                                                                               
                                                                                                                                
CHAIR  CLAMAN   asked  for  confirmation  that   Senate  Bill  91                                                               
increased  the felony  theft threshold  from $500  to $1,000  and                                                               
added the  inflation adjustment,  and that  Senate Bill  54 moved                                                               
that  amount  from   $1,000  to  $750  and   kept  the  inflation                                                               
adjustment in place.                                                                                                            
                                                                                                                                
MR. HENDERSON answered correct.                                                                                                 
                                                                                                                                
1:49:06 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed  sections 19 and 20, which  he said would                                                               
change the  crimes of escape in  the second degree and  escape in                                                               
the third degree.   He said these changes would  increase the use                                                               
of  electronic monitoring  by the  courts and  the Department  of                                                               
Corrections  (DOC).   He  said  that, under  current  law, if  an                                                               
offender  is put  on electronic  monitoring by  DOC for  a felony                                                               
offense  and that  device  is  tampered with,  it  is  a class  B                                                               
felony.  He  said HB 49 would fix an  identified gap by including                                                               
the [Division  of Juvenile Justice]  in the  law.  He  said these                                                               
sections  would also  make it  a class  C felony  for someone  on                                                               
release  for   a  misdemeanor  to   tamper  with   an  electronic                                                               
monitoring device.   He said  that, under current law,  that same                                                               
offense  is  a  misdemeanor.    He said  HB  49  would  also  add                                                               
tampering with  an electronic monitoring device  while on release                                                               
on  bail to  the list  of  criminal conduct.   He  said there  is                                                               
currently  no provision  in the  escape  statutes that  addresses                                                               
that  conduct.   He clarified  that it  would be  a violation  of                                                               
conditions of release (VCOR) but  would not fall under the escape                                                               
provision.                                                                                                                      
                                                                                                                                
1:51:28 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN noted  that many parts of the  criminal code feature                                                               
some  degree of  proportionality.   He explained  that VCOR  is a                                                               
misdemeanor offense when  released on a misdemeanor and  can be a                                                               
felony offense  when released  on a  felony.   He said  there are                                                               
other parts of the criminal code  for which the category of a new                                                               
crime is  dependent on the  category of  the crime for  which the                                                               
offender  was under  release.    He asked  why  DOL perceives  it                                                               
necessary  to make  it  a  felony to  tamper  with an  electronic                                                               
monitoring device when on release for a misdemeanor.                                                                            
                                                                                                                                
MR. HENDERSON  said DOL's goals are  to create a system  in which                                                               
DOC   feels  confident   in   using   electronic  monitoring   in                                                               
appropriate   circumstances   and   to   create   a   significant                                                               
disincentive for an  offender who would tamper with  or disable a                                                               
monitoring device.   He said elevating  the offense to a  class C                                                               
felony would  pair the  benefit of  being released  on electronic                                                               
monitoring  with  a  significant deterrent  for  manipulating  or                                                               
tampering with the monitoring device.                                                                                           
                                                                                                                                
1:53:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOPP recalled his  past experience arresting drunk                                                               
drivers and the occasions during  which a handcuffed driver would                                                               
struggle and  escape.   He said those  drivers were  under arrest                                                               
for a class  A misdemeanor - driving under the  influence (DUI)                                                                 
and upon recapture  would also be charged with escape,  a class C                                                               
felony.   He asked if  this is still the  case and whether  HB 49                                                               
would change that.                                                                                                              
                                                                                                                                
MR. HENDERSON said  Representative Kopp is correct.   He referred                                                               
to  an  Alaska  Court  of Appeals  opinion  that  describes  that                                                               
dynamic.    He conceded  that  he  does  not remember  the  exact                                                               
details but offered to get that information to the committee.                                                                   
                                                                                                                                
REPRESENTATIVE KOPP noted that he  just wanted to verify that the                                                               
current  law  stipulates that  someone  who  escapes while  under                                                               
detention  for  a misdemeanor  can  be  charged  with a  class  C                                                               
felony.                                                                                                                         
                                                                                                                                
MR. HENDERSON  said that  is how  he remembers  it.   He restated                                                               
that he could follow up with the committee.                                                                                     
                                                                                                                                
1:55:20 PM                                                                                                                    
                                                                                                                                
MR.  HENDERSON highlighted  sections  21 and  22,  which he  said                                                               
relate to  the crime of  failure to  appear.  He  explained that,                                                               
under current law, a person who  fails to appear for a hearing is                                                               
guilty  of a  violation punishable  by a  $1,000 fine  unless the                                                               
person absconds  for more than 30  days.  He added  that a person                                                               
is  only guilty  of failure  to appear  if he/she  fails to  make                                                               
contact  with the  court  after  30 days,  or  he/she avoids  the                                                               
hearing with  the intent  to avoid  prosecution.   He said  HB 49                                                               
would eliminate the 30-day "grace  period" and return to the pre-                                                               
2016 law.   That means,  he said, a person  would be guilty  of a                                                               
felony if he/she, on release for  a felony, fails to appear after                                                               
ordered to  by the court.   Likewise,  he explained, a  person on                                                               
release for a misdemeanor who fails  to appear would be guilty of                                                               
a misdemeanor.                                                                                                                  
                                                                                                                                
MR. HENDERSON said HB 49  would maintain the "affirmative defense                                                               
of unforeseen  circumstances exception," which he  explained is a                                                               
pre-2016  provision that  remains law.   He  explained that  this                                                               
means  a person  is not  held  criminally liable  for failing  to                                                               
appear  at  a  hearing   if  unforeseen  circumstances  prevented                                                               
him/her   from  appearing   and   he/she   contacted  the   court                                                               
immediately  about said  circumstances.   He said,  pre-2016, the                                                               
offender had to prove that he/she  took steps to notify the court                                                               
about  the  unforeseen  circumstances.    He  noted  that  it  is                                                               
currently DOL's burden to prove  beyond a reasonable doubt that a                                                               
person did not  make contact, which he said is  very difficult as                                                               
it is "essentially  proving a negative."  He noted  that this has                                                               
resulted in  a substantial decrease  in prosecutions  for failure                                                               
to appear.                                                                                                                      
                                                                                                                                
1:58:15 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON  addressed section 23,  which he said  would return                                                               
the crime  of VCOR  to how  it was pre-2016.   He  explained that                                                               
this means  VCOR when  released on  a felony would  be a  class A                                                               
misdemeanor and  VCOR when released  on a misdemeanor would  be a                                                               
class B misdemeanor.  He  said, under current law, the punishment                                                               
for VCOR  is limited  to five  days incarceration.   He  said the                                                               
changes  proposed  in  section  23  combined  with  the  proposed                                                               
changes to the overall sentencing  scheme would return discretion                                                               
to the  court by allowing it  to fashion a sentence  from a range                                                               
of 0 to 365 days in jail.                                                                                                       
                                                                                                                                
2:00:01 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON  addressed sections  24 through  26, which  he said                                                               
would create  and clarify the crime  of failing to provide  a DNA                                                               
sample  when arrested  for a  qualifying offense.   He  explained                                                               
that,  under  current  law,  if   a  person  is  arrested  for  a                                                               
qualifying offense -  a crime against a person, a  felony DUI, or                                                               
any felony under AS  11 - the person is required  to submit a DNA                                                               
sample upon  arrest.  He  said that DNA  sample is then  put into                                                               
the Combined DNA  Index System (CODIS), which he  described as an                                                               
investigative tool used  by law enforcement.  He  said failing to                                                               
provide  a DNA  sample upon  arrest is  not currently  a criminal                                                               
act.   He  noted  that  refusing to  provide  a  DNA sample  upon                                                               
conviction is  a class C  felony.  He said  HB 49 would  create a                                                               
class A  misdemeanor for  situations in  which a  person arrested                                                               
for a  qualifying offense  refuses to provide  a DNA  sample upon                                                               
arrest.                                                                                                                         
                                                                                                                                
2:01:50 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  asked about the constitutionality  of requiring DNA                                                               
samples in  a pre-sentence context  from people who  are presumed                                                               
innocent.                                                                                                                       
                                                                                                                                
MR.  HENDERSON  said  the  Supreme Court  of  the  United  States                                                               
(SCOTUS) has  addressed the issue  and found that seizure  of DNA                                                               
upon arrest after finding probable  cause is constitutional under                                                               
the Fourth Amendment  [of the United States  Constitution] and is                                                               
permissible.                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  asked whether  the  Alaska  Supreme Court  or  the                                                               
Alaska Court  of Appeals has  addressed the issue in  the context                                                               
of the  Alaska Constitution,  which he  said may  provide greater                                                               
protections than the United States Constitution.                                                                                
                                                                                                                                
MR. HENDERSON  said, "They have  addressed the former  version of                                                               
this   statute   and   have    suggested   that   it   would   be                                                               
constitutional."  He  added,   hey have not  analyzed the current                                                               
language of  the statute."   He stated  that, given  the language                                                               
and analysis of SCOTUS, he  believes the Alaska Supreme Court and                                                               
the Alaska Court  of Appeals would "uphold this and  not found it                                                               
a  violation  of  someone's  search  and  seizure  constitutional                                                               
rights."                                                                                                                        
                                                                                                                                
CHAIR CLAMAN asked for verification  that the Alaska Court System                                                               
has  determined that  compulsory post-sentence  DNA samples  pass                                                               
constitutional  muster, but  whether compulsory  pre-sentence DNA                                                               
samples do remains an open question.                                                                                            
                                                                                                                                
MR. HENDERSON answered  that is correct.  He  restated his belief                                                               
that  compulsory  pre-sentence DNA  samples  would  be upheld  as                                                               
constitutional.                                                                                                                 
                                                                                                                                
2:04:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked whether the DNA  sample provision is                                                               
totally new or is a return to a previous standard.                                                                              
                                                                                                                                
MR. HENDERSON called it a new enforcement mechanism.                                                                            
                                                                                                                                
2:04:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WOOL asked  what the rationale is  for obtaining a                                                               
DNA sample from "someone with a DUI.                                                                                            
                                                                                                                                
MR. HENDERSON  said when an  individual is charged with  a felony                                                               
DUI, it  means the person  has had a  minimum of two  prior DUIs.                                                               
He  said the  level of  risk  that person  presents to  community                                                               
justifies the inclusion of his/her DNA in the DNA database.                                                                     
                                                                                                                                
REPRESENTATIVE  WOOL  said  he   understands  the  rationale  for                                                               
obtaining the  DNA of a violent  criminal but argued that  DUI is                                                               
not in that  category.  He referenced the  scenario posed earlier                                                               
by Representative  Kopp involving  a person  who is  arrested for                                                               
DUI who then commits the crime of  escape, a felony.  He asked if                                                               
that offense would require a DNA sample under HB 49.                                                                            
                                                                                                                                
MR. HENDERSON said escape in third  degree is an AS 11 offense so                                                               
it would.  He said the  offender's DNA would be used to determine                                                               
whether or not he/she was associated with other criminal acts.                                                                  
                                                                                                                                
REPRESENTATIVE   WOOL   mused  that   it   sounds   like  a   new                                                               
fingerprinting technique.                                                                                                       
                                                                                                                                
MR.  HENDERSON confirmed  Represented Wool's  determination.   He                                                               
said  the  reason that  SCOTUS  deemed  DNA sampling  permissible                                                               
under the  Fourth Amendment  is because it  is no  different from                                                               
taking someone's  fingerprints, descriptors,  or photograph.   He                                                               
said DNA sampling  and CODIS are an  identification procedure and                                                               
an example of the law catching  up with technology.  He described                                                               
how  CODIS works  including  quality  standards, restrictions  to                                                               
access, and its contributions to solving unsolved crimes.                                                                       
                                                                                                                                
2:09:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN said he begs  to differ with the assertion                                                               
that  DNA  samples represent  little  more  than an  updating  of                                                               
technology.    He noted  that  a  fingerprint profile  would  not                                                               
disclose who his great-grandfather was.   He asked when pre-trial                                                               
DNA collection first came into effect in Alaska.                                                                                
                                                                                                                                
MR.  HENDERSON  said  DNA  profiles  from  arrestees  were  first                                                               
uploaded to CODIS  in approximately 2008.  He  noted that between                                                               
2008  and 2019,  the  Alaska State  Crime Lab  has  had over  350                                                               
matches  based on  arrestee  profiles.   He  clarified that  this                                                               
means over 350 leads were  created to investigate unsolved crimes                                                               
by matching arrestee DNA to DNA profiles in CODIS.                                                                              
                                                                                                                                
2:10:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN referenced  language in  section 24  that                                                               
specifies the DNA sample being  required "upon arrest."  He asked                                                               
Mr. Henderson  to clarify the  difference between  being arrested                                                               
and  being charged  with  a  crime.   He  asked  if something  in                                                               
statute would  require a charge  for a qualifying  offense before                                                               
the DNA sample is required.                                                                                                     
                                                                                                                                
MR. HENDERSON  said when  a person is  arrested for  a qualifying                                                               
offense and  DNA is submitted to  CODIS, that DNA can  be removed                                                               
if one of  several things happens.  He said  those things include                                                               
the  person's   conviction  being  reversed,  the   person  being                                                               
acquitted,  charges  not  being  filed  by  the  prosecution,  or                                                               
charges being dismissed.  He  said these safeguards are placed on                                                               
the system to ensure only those  individuals who should be in the                                                               
system  are  in  the  system.    He  described  additional  CODIS                                                               
safeguards  including  the  fact  that it  is  a  federal  system                                                               
regulated  by the  federal government,  that its  information can                                                               
only be used  for criminal investigation purposes,  that there is                                                               
a  penalty  of   $250,000  and  up  to  one  year   in  jail  for                                                               
unauthorized   disclosure   of   information,  that   misuse   of                                                               
information  could  lead to  federal  charges,  and that  DNA  is                                                               
treated as private, specific information.                                                                                       
                                                                                                                                
2:13:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN said  an investigation  of someone's  DNA                                                               
could involve not that person but  a relative of that person.  He                                                               
also noted  that Mr.  Henderson said DNA  samples may  be removed                                                               
from the database.   He asked if there is  anything to ensure the                                                               
samples  are actually  removed in  the event  of, for  example, a                                                               
person being acquitted.   He asked if there are  any penalties if                                                               
DNA samples are not removed in a timely manner.                                                                                 
                                                                                                                                
MR.  HENDERSON  said  that  under  Alaska  law,  the  expungement                                                               
process is  upon request, so  the person whose DNA  was collected                                                               
can request  the sample be  removed from the system,  which would                                                               
generate the expungement.                                                                                                       
                                                                                                                                
2:15:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STUTES  fixated on the phrases  "could be removed                                                                
and   unauthorized  disclosure.     She  asked  how  someone  who                                                               
requests his/her  profile be  removed from  CODIS can  be assured                                                               
the information  has indeed  been removed.   She also  noted that                                                               
penalties  do not  guarantee that  unauthorized disclosures  will                                                               
not occur,  citing the example  of big businesses that  have been                                                               
negligent  with customers'  personal information.   She  said she                                                               
has security concerns relating to CODIS.                                                                                        
                                                                                                                                
MR. HENDERSON deferred to DPS  for more precise answers regarding                                                               
the  manner and  mechanisms used  to secure  private information.                                                               
He said, under AS 44.41.035,  DPS is required to adopt reasonable                                                               
procedures  for the  precise issues  described by  Representative                                                               
Stutes.  He said it is required  to take steps to protect the DNA                                                               
identification  registration system  and  to ensure  there is  no                                                               
accidental or deliberative unauthorized access.                                                                                 
                                                                                                                                
REPRESENTATIVE  STUTES  said  she   understands  nothing  is  100                                                               
percent foolproof.  She said she is satisfied with his response.                                                                
                                                                                                                                
2:18:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  said she is  not satisfied.  She  said she                                                               
does not understand why an  expungement cannot be automatic.  She                                                               
asked why the  onus is placed on a person  who has been acquitted                                                               
or who may have been unjustly charged.                                                                                          
                                                                                                                                
MR. HENDERSON  said it  might be possible  for expungement  to be                                                               
automatic, but he  does not know how that  would work practically                                                               
as it relates  to information sharing.  He said  the Alaska State                                                               
Crime Lab might  be able to offer  a better answer.   He said the                                                               
statute  sets forth  the steps  a person  needs to  take to  have                                                               
his/her  information removed.   He  said the  person in  the best                                                               
position  to know  if  charges  were filed  or  dismissed is  the                                                               
person who has had his/her DNA collected.                                                                                       
                                                                                                                                
REPRESENTATIVE LEDOUX  asked if he  meant that a  defendant would                                                               
be in  a better position  than DOL  to know whether  charges have                                                               
been  dropped or  dismissed.   She remarked  that DOL  might have                                                               
 some inkling" about the status of a charge.                                                                                    
                                                                                                                                
MR. HENDERSON said that is not  what he meant, noting that he was                                                               
referring to DPS,  not DOL.  He established a  scenario wherein a                                                               
municipal law enforcement agency makes  an arrest and a municipal                                                               
prosecutor   files  charges.     He   said  the   arrestee's  DNA                                                               
information would  go to  DPS.  Mr.  Henderson said  the arrestee                                                               
could inform DPS to remove that information.                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked if a DNA  sample can be taken  for a                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
MR.  HENDERSON said  it can  be taken  for all  crimes against  a                                                               
person, so  a violent misdemeanor  would qualify.  He  pointed to                                                               
domestic violence as an example.                                                                                                
                                                                                                                                
2:21:28 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked  if "that"  is  something  normally                                                               
prosecuted by the municipalities?   She said she thought that was                                                               
normally prosecuted by [DOL].                                                                                                   
                                                                                                                                
MR.  HENDERSON  used  Anchorage  as   an  example  and  said  the                                                               
Anchorage  Municipal   Prosecutor's  Office  handles   the  large                                                               
majority  of  misdemeanor  prosecutions for  the  city  including                                                               
domestic violence.                                                                                                              
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked  if,  other than  what  relates  to                                                               
municipalities,  there is  any reason  why the  State of  Alaska,                                                               
when  charges  are  dropped,   cannot  automatically  remove  DNA                                                               
samples.                                                                                                                        
                                                                                                                                
MR. HENDERSON said it would just be a matter of data sharing.                                                                   
                                                                                                                                
REPRESENTATIVE LEDOUX asked,  "Why would you be  sharing the data                                                               
in order to get rid of the data?"                                                                                               
                                                                                                                                
MR. HENDERSON said  what he meant was DOL would  need to transmit                                                               
information regarding the  status of a charge to DPS  so that DPS                                                               
can use that information to remove DNA profiles from CODIS.                                                                     
                                                                                                                                
REPRESENTATIVE LEDOUX  remarked that this  data would have  to be                                                               
shared anyway via the defendant.  She  said if it is not all that                                                               
much  of  a hassle  for  the  defendant to  go  to  court to  get                                                               
information expunged, it should not be  that much of a hassle for                                                               
it to be expunged automatically.                                                                                                
                                                                                                                                
2:24:15 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN  drew a connection  between this discussion  and the                                                               
story of  a man  in Maine  who was recently  charged with  a 1993                                                               
murder in Fairbanks.  He said the  DNA used to track him down was                                                               
submitted  to   a  company  like   23andMe  that   processes  DNA                                                               
information.  He referenced a  different case in California where                                                               
a man  was charged  with a  series of murders  after his  DNA was                                                               
obtained through  company like  23andMe.   He clarified  that the                                                               
man  in  Maine  was  identified  as  a  suspect  because  of  DNA                                                               
submitted by  a relative of  his.   He said this  raises multiple                                                               
issues related to this part of HB 49.                                                                                           
                                                                                                                                
REPRESENTATIVE WOOL  noted that  DNA tests and  fingerprint tests                                                               
"are not 100 percent sure.                                                                                                      
                                                                                                                                
2:26:16 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed section 27,  which he said would create a                                                               
new  generalized  threat  statute  to cover  situations  when  an                                                               
individual  threatens to  commit a  serious act  of violence  and                                                               
places another person  in reasonable fear of serious  injury.  He                                                               
explained that, under  current law, the threat of harm  must be a                                                               
false threat  to qualify  as terroristic  threatening.   He noted                                                               
that this  revision is unrelated to  changes made in 2016  and is                                                               
instead a  reaction to a  gap in the law  identified by DOL.   He                                                               
said this  revision would allow  law enforcement to  intervene in                                                               
situations  before the  harm actually  occurs.   He said  this is                                                               
because law enforcement  "would not need to  determine whether or                                                               
not the threat was real or false."                                                                                              
                                                                                                                                
2:27:40 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  said the  legislature  made  some changes  to  the                                                               
terroristic threatening statute  in 2002.  He  asked what changes                                                               
were made.   He asked as  well about changes made  to the statute                                                               
in 2013.                                                                                                                        
                                                                                                                                
MR.  HENDERSON said  terroristic  threatening, as  is defined  in                                                               
Alaska law, was  designed to criminalize or  create an aggravated                                                               
form of making a false report.                                                                                                  
                                                                                                                                
CHAIR  CLAMAN said  one of  the early  iterations of  the statute                                                               
required  repeated   threats  before   an  individual   could  be                                                               
criminally charged  with terroristic  threatening.  He  said that                                                               
is not  part of the  current statute for  terroristic threatening                                                               
in  the first  degree or  terroristic threatening  in the  second                                                               
degree.  He said this implies  a number of changes to the statute                                                               
over the years from the original  status of the offense.  He said                                                               
he would be  interested in hearing more about the  history of the                                                               
statute and  how this revision  relates to the current  and prior                                                               
statutes.                                                                                                                       
                                                                                                                                
MR.  HENDERSON  noted  that the  provision  related  to  repeated                                                               
threats  to cause  death  or  physical injury  was  moved to  the                                                               
statute covering  assault in third  degree.   He said he  did not                                                               
remember the  year that occurred.   He identified the  statute it                                                               
was moved to  as AS 11.41.220(a)(2).  He said  he could provide a                                                               
more descriptive  history of the terroristic  threatening statute                                                               
to the committee at a later time.                                                                                               
                                                                                                                                
2:30:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN addressed  the phrase  reckless disregard                                                                
in  section  27.   He  asked  if  that  includes someone  who  is                                                               
intentionally trying to hurt another  person.  He said the normal                                                               
understanding  of that  phrase is  that it  implies unintentional                                                               
conduct.                                                                                                                        
                                                                                                                                
MR. HENDERSON  clarified that  a person  who acts  recklessly, as                                                               
described in  law, is a  person who  is aware of  and consciously                                                               
disregards substantial  risk.   He noted that  a person  who acts                                                               
recklessly also acts  knowingly and intentionally.   He said that                                                               
a  person who  acts  intentionally  to cause  harm  and create  a                                                               
threat would also, by definition, be acting recklessly.                                                                         
                                                                                                                                
REPRESENTATIVE  EASTMAN  addressed  the phrase  "communicating  a                                                               
threat that a  circumstance exists" in section 27.   He asked how                                                               
communicating   a   threat   that  a   circumstance   exists   is                                                               
distinguished  from communicating  a  threat for  the purpose  of                                                               
saving from  injury, such as  a security guard informing  a crowd                                                               
about a bomb.                                                                                                                   
                                                                                                                                
MR.  HENDERSON   said  those   circumstances  are   described  in                                                               
subsections (a)(1)  and (a)(2) under  section 27.  He  pointed to                                                               
language in lines 5  through 9 on page 14 that  is specific to an                                                               
oil or gas  pipeline and intended to cover  that scenario, either                                                               
a false or a real threat.                                                                                                       
                                                                                                                                
2:33:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EASTMAN  clarified his concern.   He asked  if the                                                               
statute would  protect a Good  Samaritan who communicates  a real                                                               
or perceived threat.                                                                                                            
                                                                                                                                
MR. HENDERSON said  DOL would never levy charges  for a situation                                                               
such as that.  He said  if the legislature wishes to clarify that                                                               
point, it  could do so by  copying language in the  false reports                                                               
statute and inserting it into subsection (a)(2).                                                                                
                                                                                                                                
2:34:21 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  asked why subsection (a)(2)  is limited to                                                               
"the proper or safe functioning of  an oil or gas pipeline."  She                                                               
asked why that does not include,  for example, the proper or safe                                                               
functioning of an airplane.                                                                                                     
                                                                                                                                
MR. HENDERSON said his memory of  that statute is that it relates                                                               
to the  concern of a  bomb threat called  into a gas  or pipeline                                                               
facilities that has the potential  to shut down that pipeline and                                                               
lead to various downstream consequences.                                                                                        
                                                                                                                                
REPRESENTATIVE LEDOUX  said she understands the  concern about an                                                               
oil pipeline but  wants to know why that provision  does not also                                                               
include a communicated threat to a school, for instance.                                                                        
                                                                                                                                
MR. HENDERSON  pointed her attention  to subsection  (a)(1)(B) on                                                               
page 13  starting at line  31, which he  said covers any  type of                                                               
threat  that causes  evacuation of  a building,  public place  or                                                               
area, business  premises, or mode  of public transportation.   He                                                               
said  if someone  were to  call in  a threat,  real or  not, that                                                               
causes the evacuation of a school, it would be covered.                                                                         
                                                                                                                                
2:36:37 PM                                                                                                                    
                                                                                                                                
MR HENDERSON  said he would  skip section 28 because  it revisits                                                               
the aforementioned changes to the overall sentencing scheme.                                                                    
                                                                                                                                
MR.  HENDRSON addressed  sections 29  through 36,  which he  said                                                               
would  return drug  laws to  what they  were prior  to 2016.   He                                                               
specified  that the  language in  sections 29  through 36  is the                                                               
exact same that  was in statute before 2006.   He said section 29                                                               
reenacts a provision that was  removed in 2016 called "misconduct                                                               
involving a controlled  substance in the second  degree," a class                                                               
A  felony  offense  for  the  distribution of  any  amount  of  a                                                               
Schedule IA  controlled substance.   He clarified this  means the                                                               
distribution of any  amount of heroin, fentanyl,  or other opioid                                                               
derivatives.  He said section  29 also returns the manufacture of                                                               
methamphetamine to a  class A felony offense.  He  noted that, in                                                               
2016,  the manufacture  of methamphetamine  was  downgraded to  a                                                               
class B felony.   He referenced the dangerous  "one-pot meth lab"                                                               
epidemic in the early 2000s.                                                                                                    
                                                                                                                                
2:39:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked if  anything  in  section 29  would                                                               
affect the marijuana industry.                                                                                                  
                                                                                                                                
MR.  HENDERSON  said nothing  in  sections  29 through  36  would                                                               
affect  or change  the regulated  marijuana industry.   He  noted                                                               
that DOL,  in response to  concerns from the Senate,  has created                                                               
clarifying language  that would crystalize  that point.   He said                                                               
the legislature  is welcome  to add  that clarifying  language to                                                               
the bill if it deems it appropriate.                                                                                            
                                                                                                                                
REPRESENTATIVE LEDOUX  suggested that the clarifying  language is                                                               
necessary  to   avoid  unwanted  consequences   regarding  future                                                               
interpretation of the statute's legislative history.                                                                            
                                                                                                                                
CHAIR CLAMAN  asked Mr.  Henderson to  send along  the clarifying                                                               
language.                                                                                                                       
                                                                                                                                
2:41:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL pointed  to language  in line  5 of  page 20                                                               
that  explicitly references  cannabis plants.   He  asked for  an                                                               
explanation and whether clarifying language is needed for that.                                                                 
                                                                                                                                
MR.  HENDERSON said  this language  refers to  marijuana that  is                                                               
outside the regulated marijuana industry.                                                                                       
                                                                                                                                
CHAIR CLAMAN  asked for confirmation  that the only  Schedule VIA                                                               
controlled substance is marijuana.                                                                                              
                                                                                                                                
MR. HENDERSON confirmed  that marijuana is the  only Schedule VIA                                                               
controlled  substance.   To  Representative  Wool's question,  he                                                               
pointed to AS  17.38.020, the personal use  of marijuana statute.                                                               
He said that  statute allows for the possession of  less than one                                                               
ounce of  marijuana or  not more  than 12  marijuana plants.   He                                                               
said the  "25 or  more plants"  referenced in line  5 of  page 20                                                               
refers to conduct outside of the legalized marijuana industry.                                                                  
                                                                                                                                
2:43:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN  asked  what  falls  under  the  category                                                               
"nonregulated marijuana" and  inquired as to the  broad impact of                                                               
section 29 on marijuana that  is "not kosher" according to Alaska                                                               
regulations.                                                                                                                    
                                                                                                                                
MR. HENDERSON  said the  intention is  to ensure  law enforcement                                                               
has the tools necessary to  stop the distribution of marijuana in                                                               
those  circumstances  that  the  person  distributing  is  not  a                                                               
regulated marijuana  seller or he/she  falls outside  [AS 17.38].                                                               
He said the intention is not  to interfere with marijuana that is                                                               
lawfully regulated.                                                                                                             
                                                                                                                                
2:45:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   LEDOUX  asked   whether   the  distribution   of                                                               
bootlegged  or unregulated  liquor  is treated  similarly to  the                                                               
distribution of unregulated marijuana.                                                                                          
                                                                                                                                
MR.  HENDERSON  said  that  depends  on  where  the  distribution                                                               
occurs.  He  said, under AS 04, there is  a scheme which dictates                                                               
the  penalty provision  for either  brewing  homebrew or  selling                                                               
alcohol.    He  said  a  person who  sells  alcohol  in  a  "dry"                                                               
community could be guilty of a felony.                                                                                          
                                                                                                                                
REPRESENTATIVE LEDOUX  asked what  would happen to  an individual                                                               
who sells alcohol in Anchorage without the appropriate license.                                                                 
                                                                                                                                
CHAIR CLAMAN  asked, in the  interest of time, for  Mr. Henderson                                                               
to  provide  a written  response  to  this question  rather  than                                                               
attempt to research the answer on the fly.                                                                                      
                                                                                                                                
2:47:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL  asked  for  clarification  of  language  in                                                               
subsection (a)(4) on page 20.   He paraphrased lines 6 through 8,                                                               
which would  criminalize possession  of a schedule  VIA substance                                                               
 on or  within 500  feet of  school grounds.    He asked  if that                                                               
would be a felony.                                                                                                              
                                                                                                                                
MR. HENDERSON clarified that section  32, to which Representative                                                               
Wool  is referring,  would  create the  new  crime of  misconduct                                                               
involving  a  controlled substance  in  the  fourth degree.    He                                                               
confirmed that  if a  person possesses  a schedule  VIA substance                                                               
with reckless disregard on or  within 500 feet of school grounds,                                                               
he/she would be guilty of a felony offense.                                                                                     
                                                                                                                                
CHAIR  CLAMAN  asked  again  for  verification  that  this  means                                                               
marijuana, as it is the only schedule VIA drug.                                                                                 
                                                                                                                                
MR. HENDERSON verified that.                                                                                                    
                                                                                                                                
REPRESENTATIVE   WOOL  established   a  scenario   in  which   an                                                               
individual goes to  a marijuana store, purchases a  legal gram of                                                               
marijuana, and  walks home.   The person,  in order to  get home,                                                               
has  to walk  within 500  feet of  a school.   As  the person  is                                                               
walking by the school, the  marijuana falls out of his/her pocket                                                               
and someone  sees it.   He asked if  the person would  be charged                                                               
with a first-time felony offense.                                                                                               
                                                                                                                                
MR.  HENDERSON  said   he  would  have  to   research  the  exact                                                               
definition of the phrase "within 500 feet of school grounds."                                                                   
                                                                                                                                
REPRESENTATIVE WOOL rephrased  his question.  He  said the person                                                               
is picking up  his/her child from school and  the legal marijuana                                                               
is in the car.  He asked if that is a felony offense.                                                                           
                                                                                                                                
MR.  HENDERSON  said taking  marijuana  on  school grounds  is  a                                                               
violation.                                                                                                                      
                                                                                                                                
2:50:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EASTMAN said  it  is his  understanding there  is                                                               
currently a  similar distance limitation  on churches.   He asked                                                               
why that does not appear "in this part of the statute."                                                                         
                                                                                                                                
MR. HENDERSON  said he would  have to  look up the  definition of                                                               
"recreation    or   youth    center"    [found   in    subsection                                                               
(a)(4)(A)(ii)].  He said it depends  on whether or not the church                                                               
would  be defined  that way.   To  Representative Wool's  earlier                                                               
question, Mr.  Henderson noted that  there is an  exception under                                                               
existing  law  that permits  an  individual  to possess  "in  the                                                               
privacy  of  their  own  residence" within  500  feet  of  school                                                               
grounds.   He  said there  are ways  to carve  out exceptions  in                                                               
these sorts of circumstances.                                                                                                   
                                                                                                                                
2:51:26 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed  section 30, which he  said would reenact                                                               
the  distribution  of  any  amount  of a  schedule  IIA  or  IIIA                                                               
substance,  such as  cocaine  or methamphetamine,  to  a class  B                                                               
felony.   He  said this  is another  example of  a repeal  of the                                                               
tiered approach to sentencing.                                                                                                  
                                                                                                                                
MR. HENDERSON  readdressed section  32, which he  explained would                                                               
return  possession  of  any  amount   of  a  schedule  I  or  IIA                                                               
controlled substance to a class C felony.                                                                                       
                                                                                                                                
2:52:20 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed  section 31, which he  said would reenact                                                               
the  pre-2016  law  regarding  the  availability  and  length  of                                                               
probation.   He said section 37  would allow the court  to impose                                                               
up  to 25  years of  felony probation  for a  felony sex  offense                                                               
conviction and 10 years for all other offenses.                                                                                 
                                                                                                                                
MR. HENDERSON  addressed sections  38 through  43, which  he said                                                               
relate to the  reversion back to the  pre-2016 general sentencing                                                               
scheme.  He  said sections 38 through 40  address the presumptive                                                               
sentencing ranges for felonies.   He said section 41 would return                                                               
the 0 to  365 day sentencing range for class  A misdemeanors.  He                                                               
said section  43 would return  sentencing discretion for  class B                                                               
misdemeanors from 0 to 10 days to 0 to 90 days.                                                                                 
                                                                                                                                
MR.  HENDERSON addressed  section 28,  which he  skipped earlier,                                                               
and explained  that it  addresses disorderly  conduct.   He said,                                                               
under current law, the maximum  imposed sentence for a disorderly                                                               
conduct  conviction  is  up  to   24  hours  incarceration.    He                                                               
explained that section  28 would return the sentence  to the pre-                                                               
2016 level of  "up to 10 days."   He said section  28, along with                                                               
sections  38 through  43, return  Alaska's  sentencing scheme  to                                                               
where it was before 2016.                                                                                                       
                                                                                                                                
2:55:05 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed  sections 45 and 46, which  he said would                                                               
eliminate  the  mandatory  aspect of  electronic  monitoring  for                                                               
those  convicted   of  first-time  DUI  and   instead  require  a                                                               
mandatory  minimum  3-day  sentence  in a  DOC  facility,  unless                                                               
otherwise determined by DOC.   He reiterated that sections 45 and                                                               
46  would  return  discretion  to   DOC  to  determine  the  most                                                               
appropriate place for someone convicted of DUI.                                                                                 
                                                                                                                                
2:55:45 PM                                                                                                                    
                                                                                                                                
MR. HENDERSON addressed section 49,  which he said is not related                                                               
to changes in  2016.  He said section 49  addresses an identified                                                               
gap in the  law regarding data sharing.  He  said it would ensure                                                               
the  court system  transmits information  regarding involuntarily                                                               
commitments to DPS for years prior  to 2014.  He said that, under                                                               
current law,  DPS must be  informed if a person  is involuntarily                                                               
committed under AS 47.  He  explained that the current law, which                                                               
was  enacted  in  2014, was  written  prospectively  rather  than                                                               
retroactively.  He  said section 49 would allow  the court system                                                               
to  share  otherwise-confidential   information  with  DPS,  when                                                               
appropriate.                                                                                                                    
                                                                                                                                
2:57:00 PM                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN  noted  that  section 49  would  affect  access  to                                                               
firearms and  inquiries on  background checks  for firearms.   He                                                               
asked  if the  retroactive focus  of section  49 would  make some                                                               
people ineligible to purchase firearms.                                                                                         
                                                                                                                                
MR.  HENDERSON  said  this  is  correct  with  one  caveat.    He                                                               
explained  that  this  provision  would not  change  one's  legal                                                               
status and  that a person  who has been  involuntarily committed,                                                               
even before 2014,  is prohibited from possessing  a firearm under                                                               
federal law.  He said section  49 would allow the court system to                                                               
share that  information with DPS  so that DPS can  identify those                                                               
individuals  who are  prohibited from  possessing firearms  under                                                               
federal law.                                                                                                                    
                                                                                                                                
CHAIR  CLAMAN asked  if  the information  made  available to  DPS                                                               
would in  due course  be released to  the federal  government for                                                               
purposes of its laws and regulations.                                                                                           
                                                                                                                                
MR. HENDERSON said that is correct.   He explained that DPS would                                                               
submit that information to the  national database associated with                                                               
background checks.                                                                                                              
                                                                                                                                
2:58:29 PM                                                                                                                    
                                                                                                                                
MR.  HENDERSON  addressed  section  50,   which  he  said  is  an                                                               
amendment to  the uncodified  law of the  State of  Alaska (SOA),                                                               
specifically  Rule 6(r)  - the  "hearsay  rule" -  of the  Alaska                                                               
Rules of Criminal  Procedure.  He noted that this  is not related                                                               
to changes  made in  2016, but rather  another gap  identified by                                                               
DOL.   He said  the purpose  of the  change is  to create  a more                                                               
efficient system for the grand jury  process.  He said section 50                                                               
would allow  a person's criminal  history, or "rap sheet,"  to be                                                               
introduced to  prove the  existence of  a predicate  offense when                                                               
that is an element of the offense.   As an example, he said that,                                                               
under current law, to be guilty  of felony DUI an individual must                                                               
have previously  been convicted of  two prior DUIs.   But because                                                               
it is  a felony, it is  required that the individual  be indicted                                                               
by the grand  jury.  At grand jury, he  explained, SOA is allowed                                                               
under  a  special  exception  to   Rule  6(r)  to  introduce  the                                                               
individual's  "rap sheet"  or  Alaska  Public Safety  Information                                                               
Network  (APSIN)   report  to  prove   the  existence   of  prior                                                               
convictions,  as  opposed  to  introducing  the  prior  certified                                                               
copies of  those convictions.   He said  section 50  expands that                                                               
exception to include offenses that  also have a predicate offense                                                               
as  an  element of  the  offense.    He  said examples  of  those                                                               
situations include someone who is  a felon in possession, someone                                                               
who  is  being  charged  with   felony  theft  because  of  prior                                                               
misdemeanor thefts, or  someone who is being  charged with felony                                                               
assault because  of prior misdemeanor  assaults.  Section  50, he                                                               
said, would  allow the prosecution  to rely on the  person's "rap                                                               
sheet" or APSIN report to  prove the existence of those offenses.                                                               
He added  that, if the case  were to proceed to  trial, the state                                                               
would be required to introduce the certified copy of that                                                                       
judgement.  He clarified that the exception proposed in section                                                                 
50 would only apply in the grand jury setting.                                                                                  
                                                                                                                                
3:01:14 PM                                                                                                                    
                                                                                                                                
CHAIR CLAMAN said HB 49 would be held for further review.                                                                       

Document Name Date/Time Subjects
HB049 ver A 3.22.19.PDF HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Transmittal Letter 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Sectional Analysis ver A 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Bill Highlights 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Additional Document-Senate Bill 91 GOA Bills Matrix 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Supporting Document-Alaska Association of Chiefs of Police Letter 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Fiscal Note DHSS-PS 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Fiscal Note DPS-CJISP 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HB 49
HB049 Fiscal Note DOA-OPA 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HB 49
HB049 Fiscal Note DOA-PDA 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HB 49
HB049 Fiscal Note DOC-IDO 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Fiscal Note LAW-CRIM 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HJUD 4/27/2019 1:00:00 PM
HB 49
HB049 Fiscal Note JUD-ACS 3.22.19.pdf HJUD 3/22/2019 1:30:00 PM
HJUD 3/25/2019 1:00:00 PM
HB 49