Legislature(2019 - 2020)GRUENBERG 120
04/11/2019 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmations(s) Hearing|| Commissioner, Department of Public Safety | |
| HB10 | |
| HB118 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 110 | TELECONFERENCED | |
| += | HB 82 | TELECONFERENCED | |
| *+ | HB 33 | TELECONFERENCED | |
| *+ | HB 51 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 10 | TELECONFERENCED | |
| += | HB 118 | TELECONFERENCED | |
HB 10-CONTROLLED SUBSTANCE POSSESSION; SENTENCE
3:59:48 PM
CO-CHAIR KREISS-TOMKINS announced that the next order of
business would be HOUSE BILL NO. 10, "An Act relating to
misconduct involving a controlled substance; providing for
substitution of judgment; and relating to sentencing."
4:00:31 PM
REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, relayed
that the intent of HB 10 is to address a growing opioid crisis;
the state has struggled with the enforcement, behavioral health,
and mental health aspects of the issue. The question is, How
does the state use its resources and the law to arrive at a
better result, which is to reduce addiction and dependency and
increase public safety.
REPRESENTATIVE KOPP cited the Department of Health and Social
Services (DHSS) publication, [entitled "2018-2022 Statewide
Opioid Action Plan," document not provided], which read:
During 20102017, with 623 identified opioid overdose
deaths, the opioid overdose death rate increased 77%
(from 7.7 per 100,000 persons in 2010 to 13.6 in
2017). Synthetic opioids, excluding methadone, caused
37 deaths 37% of all 2017 opioid overdose deaths,
with fentanyl contributing to 76% (28 of 37) of those
deaths.
REPRESENTATIVE KOPP stated that a few years ago the law stated
that possession of any amount of a Schedule IA or IIA substance
- which includes heroin, cocaine, opioids, and methamphetamines
- was a Class C felony. From a law enforcement point of view,
it was easy to prosecute. Subsequently, Alaska had a huge
public policy debate about whether the real problem - the
addiction rate - was being reduced. At that time, the penalty
for simple possession was reduced to misdemeanor; that resulted
in people being charged with innumerable misdemeanors with no
incentive to enter a treatment program.
REPRESENTATIVE KOPP referred to a document, included in the
committee packet, entitled "HB 10 Background Information," to
point out the schedule of drugs and the penalties. Schedule IA
and IIA drugs are listed in the document, which read [original
punctuation provided]:
Schedule IA
Illegal because they have high abuse potential and
severe safety concerns: for example, heroin, opium,
hydrocodone, oxycodone, fentanyl, (pain patch) - can
be used to treat severe pain. Can cause life-
threatening respiratory distress when taken in high
doses or when combined with other substances. Also,
has a high risk of dependency. Also, GHB, date-rape
drugs.
Schedule IIA
Hallucinogenic substances and substances that suppress
or stimulate the central nervous system that have a
high potential for abuse and dependence and the
potential for severe addiction. These drugs include
methamphetamines including meth, LSD, the barbiturates
and cocaine.
REPRESENTATIVE KOPP paraphrased from the sponsor statement,
included in the committee packet, which read:
As Alaska looks to end the opioid and drug abuse
epidemic, it needs innovative solutions to help those
struggling with addiction recover and return to
leading productive lives.
House Bill 10 seeks to be a piece of the puzzle by
creating an incentive for drug offenders to seek
rehabilitation instead of continued criminal behavior.
House Bill 10 first converts the repeat possession of
IA and IIA controlled substances from misdemeanor to
felony charges.
A judge may then propose to vacate an offender's
felony possession conviction, resulting instead in a
misdemeanor charge, upon the completion of a treatment
program.
This option for a felony-to-misdemeanor conversion is
known as a "substitution of judgement". If the
offender does not successfully complete their court-
approved rehabilitation, their felony conviction would
stand.
This path for a substitution of judgment does not
apply to offenders charged with other crimes at the
time of their possession conviction, including gun-
related crimes, nor is it an option available to
offenders more than once.
Those involved in law enforcement and criminal justice
recognize the need for offenders who are consistently
culpable of drug possession to get treatment for their
underlying addiction.
However, Alaskans struggling with addiction often need
a push to enter a program and turn their lives around.
House Bill 10 aims to provide an accountable,
responsible mechanism to help treat addiction in our
state, and provide for increased public safety and
productivity.
REPRESENTATIVE KOPP added that all the data points - from the
Alaska Criminal Justice Commission (ACJC), therapeutic courts,
and Alaska behavioral health agencies - indicate that court-
appointed treatment programs work. They have the highest rates
of success. He maintained that HB 10 would encourage offenders
into these programs in lieu of a felony conviction. Once a
person has a felony conviction, professional [employment]
opportunities become extremely limited and the offender and
his/her dependents are likely to rely public assistance
indefinitely.
4:07:37 PM
CO-CHAIR FIELDS stated that he has heard anecdotally from law
enforcement that about 90 percent of crimes - such as burglaries
- are rooted in addiction. He asked whether that perception is
consistent with Representative Kopp's experience and, therefore,
the proposed legislation could have a positive impact for
reducing property crime in his own community.
REPRESENTATIVE KOPP responded that substance abuse plays a very
important role. He estimates that about 70 percent of all
crimes are tied directly to substance abuse; it directly
precipitates crime.
CO-CHAIR FIELDS expressed his belief that HB 10 would address
one of the root causes of the crime that is making his
constituents feel unsafe.
REPRESENTATIVE LEDOUX suggested that deferred prosecution is
different than suspended imposition of sentence; under suspended
imposition of sentence one must answer "yes" to the question of
having been convicted of a felony, but not under a deferred
prosecution.
REPRESENTATIVE KOPP agreed. To be in the program [under HB 10]
the offender must have made a plea; however, the felony
conviction would be held in abeyance until the offender
demonstrated that he/she was not willing to materially
participate in his/her own rehabilitation.
REPRESENTATIVE LEDOUX commented that the proposed legislation
would give the offender one more chance to "straighten out."
REPRESENTATIVE KOPP agreed.
REPRESENTATIVE STORY asked whether Alaska has the treatment
programs and the resources to provide the treatment programs.
REPRESENTATIVE KOPP replied that Alaska has treatment programs
but could use more. The House just passed the mental health
operating budget [4/11/19], which includes significant treatment
resources. Every year the state has become more and more
focused on funding treatment programs, because, ultimately, they
show a very high rate of success in breaking the cycle of
addiction and reducing incarceration and public assistance
costs. Investing in treatment in the front end saves money
later.
REPRESENTATIVE STORY asked to be provided with more information
on the treatment programs and options within Alaska's prison
system.
4:11:49 PM
REPRESENTATIVE WOOL referred to the provision under HB 10 -
changing a mandatory felony to a misdemeanor for a simple
possession - and suggested that the impetus for the proposed
legislation is to avoid the negative path that a felony would
hold for the offender and to provide a disincentive for the
offender to have repeat felony convictions and continue to use
drugs.
REPRESENTATIVE KOPP answered, yes, it can be viewed in the
positive in that the offender is allowed misdemeanor drug
possession charges - relapse is a part of recovery - but not
indefinitely. He said that HB 10 would put a provision in the
law for the court to order the offender into treatment. He
offered that someone with a third conviction most likely has a
drug problem. If the offender successfully completes the
program, the felony conviction would be held in abeyance, and
the charge would be entered as a misdemeanor. He reminded the
committee that a misdemeanor is not inconsequential.
REPRESENTATIVE KOPP reiterated the history of Alaska's drug
possession laws and offered that because all Class C felonies
are not equitable, the legislature decided to review sentencing.
He said that HB 10 recognizes that a felony is a serious charge,
but one should earn it and show that he/she is not willing to
meaningfully participate in his/her own rehabilitation. Alaska
would be balancing the need to help addicts recover with
accountability.
REPRESENTATIVE WOOL expressed that the drugs are very addictive,
and it is very hard for addicts to quit. He asked whether
someone with a second-time possession conviction, who opts to
enter treatment, would be paying for the treatment.
REPRESENTATIVE KOPP clarified that it would be the third
conviction; the offender would have to be convicted two or more
times before the provision under HB 10 would apply. He
explained that the proposed legislation recognizes that relapses
occur. He answered that court-ordered treatment is based on the
defendant's ability to pay. Sometimes the state pays and
sometimes the defendant pays.
4:17:07 PM
CO-CHAIR KREISS-TOMKINS asked how frequently the courts elect to
use this sentencing tool in other states or jurisdictions that
have this provision.
REPRESENTATIVE KOPP answered that he does not have that data.
He stated that generally either states charge the drug offenses
as felonies and do not have this tool, or states charge them as
misdemeanor possession and do not have this tool. He maintained
that the approach under HB 10 is innovative because it holds the
"hammer" of the law in abeyance and the focus on is getting the
offender into treatment. He reiterated that therapeutic courts
have remarkably high success rates, because they have methods of
keeping close accountability and contact. The felony hammer is
a valuable tool to incentivize people to enter treatment.
CO-CHAIR KREISS-TOMKINS commented that a state attorney
described for him the therapeutic court system; there are
remarkable parallels between that system and the proposal under
HB 10. The attorney expressed to Representative Kreiss-Tomkins
how profoundly successful the therapeutic courts have been for
people who are often very deeply troubled. He expressed his
enthusiasm for the premise of HB 10.
REPRESENTATIVE VANCE expressed her belief that HB 10 presents a
needed and helpful tool. She stated that in Alaska, the
availability of treatment is a big challenge; her concern is
that the Alaska Court System would be creating a false sense of
hope that treatment options are available in all communities,
because it is not. She offered that [Homer] is trying to
implement a treatment program, because clients in the lower
Kenai Peninsula must travel to Kenai, Anchorage, or Soldotna,
which are at least 70 miles away. The clients often don't have
the money for a tank of gas, or can't make the trip, therefore,
reoffend. She has heard testimony that some people will
reoffend in order to return to jail and get help. She asked for
information on the treatment available outside the prison
system. She expressed the need for implementing a phased plan
for the legislature: coming up with a cost, building the
resources necessary, moving in the right direction, and starting
to reduce opioid addiction.
REPRESENTATIVE KOPP responded that the road system communities -
including Juneau - have resources; they make up about 70 percent
of the population of the state; therefore, HB 10 would have an
immediate impact on the majority of most of the state's
population. He acknowledged that in rural Alaska, more
resources are needed. He asserted that not having 100 percent
of the resources that are needed would not keep him from
advancing the legislation, knowing that it that could make
improvements to much of Alaska. He maintained that funding
treatment programs is almost ten-to-one better than
incarceration in cost, value served, and end results. He
offered that the Alaska Mental Health Trust Authority (AMHTA)
could better respond to the question of availability of
resources across the state. He suggested that ultimately HB 10
would save the state money.
4:23:15 PM
REPRESENTATIVE WOOL related previous committee testimony:
Department of Corrections (DOC) tries to return released inmates
to their home communities to be near their support systems;
however, many are under court-mandated treatment programs, which
require them to stay in Anchorage, resulting at times in poor
lifestyle choices. He expressed his concern that lack of
treatment programs in rural Alaska could create this same
predicament. He said he supports the encouragement for
treatment under HB 10. He asked whether the offender would be
charged with the felony if he/she tried to complete treatment
but does not.
REPRESENTATIVE KOPP answered, "That is correct, if they fail to
comply with the program." He said that successful completion of
the program means that the person was responsive to every
correction from the court; it does not mean that they never
relapsed, but only that they never committed a new violation
that rose to the level of reincarceration. He stated that the
intention is for offenders to stay with the treatment program
and complete it; they are the ones who have a high probability
of breaking the addiction cycle; and the treatment program does
it through intensive mentorship and accountability. He added
that the court has flexibility on the treatment schedule and
location of treatment.
4:26:59 PM
CO-CHAIR FIELDS moved to report HB 10 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HB 10 was reported from the House
State Affairs Standing Committee.