Legislature(2019 - 2020)GRUENBERG 120
04/11/2019 03:00 PM STATE AFFAIRS
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|Confirmations(s) Hearing|| Commissioner, Department of Public Safety|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.