Legislature(2017 - 2018)SENATE FINANCE 532
04/25/2018 01:30 PM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB142 | |
| HB316 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 142 | TELECONFERENCED | |
| + | HB 316 | TELECONFERENCED | |
| + | TELECONFERENCED |
CS FOR HOUSE BILL NO. 316(FIN) am
"An Act relating to the release of certain records of
convictions; and providing for an effective date."
2:12:10 PM
REPRESENTATIVE HARRIET DRUMMOND, SPONSOR, introduced the
legislation. She explained that HB 316 was intended to
clear the court and permanent records of Alaskans with
simple possession convictions of marijuana from pre-
legalization in November 2015. The lifelong burden of
criminal records for a crime that was now legal kept
Alaskans from achieving their full potential. The
conviction created a barrier that had the potential to keep
people from attaining a higher quality of life. She
characterized the bill as a jobs bill. The bill did not
grant a clean slate to serious offenders. The bill intended
to eliminate obstacles relating to gaining employment, loan
eligibility, qualifying for educational opportunities, or
advancing in certifications and careers due to a simple
possession charge for a crime that was legalized. The
recreational use of marijuana was legal for over 3 years,
which benefitted the state and created prosperous small
businesses. She voiced that many citizens benefitted from
legalization and the bill offered a chance to extend the
benefit to more citizens by removing barriers to societal
advancement.
2:14:22 PM
PATRICK FITZGERALD, STAFF, REPRESENTATIVE HARRIET DRUMMOND,
discussed the Sectional Analysis (copy on file):
Sec. 1 AS 12.62.160
Stating that an agency may not release records of a
criminal case to the public if the defendant was
charged with possession of a controlled substance
schedule VIA.
Schedule VIA definition: AS 11.71.190
(a) a substance shall be placed in schedule VIA
if it is found under AS 11.71.120 to have the
lowest degree of danger or probable danger to the
person or public.
(b) marijuana is a schedule VIA controlled
substance.
Person had to have been 21 years or older at time
of offense.
Sec. 2 AS 22.35(040)
Is amended by adding: AS 22.35.040 Confidential court
records. A court record of a criminal case is will be
made confidential if defendant was convicted of VIA
possession through state or local ordinance as a
stand-alone charge.
Sec. 3 AS 40.25.120
Every person has a right to inspect a public record in
the state, including public records in recorders
offices except: (18) Records of a schedule VIA
possession for less than once ounce if it was a stand-
alone charge. Defines that a person must have been 21
or older for the confidentiality to apply.
Sec. 4 *
Alters indirect court rule amendment "Alaska Rules of
Administration" by limiting public access to certain
case records.
Sec. 5* States that because of section four of this
act must receive 2/3 majority vote in each house
because of Article IV Sec. 15 of the Alaska State
Constitution.
Sec. 6*
Provides effective date for 120 after bill signing.
2:16:36 PM
Senator von Imhof relayed that the committee had hearings
on various crime bills. She asked whether Representative
Drummond was aware of other legislation that would change
past criminal records resulting from SB 91 or SB 54, as
crimes were recategorized. She asked whether criminal
records were being changed for other reclassified crimes.
Representative Drummond was not aware of any other
legislation. She offered that as marijuana was legalized in
other states other governments were expunging records in a
similar manner. She exemplified that in Vermont the
governor expunged the records of 192 individuals and in San
Francisco the city prosecutor had recently dismissed
approximately 3000 misdemeanor cases. She offered that the
ballot initiative supporters considered including a feature
like the provisions in HB 316 but determined that the
initiative was less likely to pass if it was viewed as a
crime forgiveness initiative. Other states had included the
measure in their original legalization bill. She believed
that the provisions should apply in Alaska as the
legalization currently allowed possession and use of the
same amount of marijuana that previously created
misdemeanants. Currently, individuals were profiting from
the sale of marijuana while others were experiencing
limitations and barriers due to their marijuana conviction.
2:19:35 PM
Senator von Imhof related that the possession charge would
have to be a non-violent, standalone offense with
possession of a schedule VIA (Six-A) controlled substance.
She understood the reasoning behind crime forgiveness
versus economic opportunity and why other states were
sealing records. However, she wondered whether a potential
employer had the right to know that an individual had been
convicted of possession and use of a substance that was
illegal at the time. She asked whether Representative
Drummond thought that the information was material in a
potential employment scenario. Representative Drummond felt
that a discussion was appropriate in the employment
scenario. She indicated that the bill did not remove the
charges it merely deleted the conviction from court view.
The record would still exist, and an applicant would need
to report the charges or conviction, if asked by a
potential employer.
Senator Micciche cited page 1, lines 5 and 6 of the bill
and referred to the language, "the department may not
release records of a criminal case if the defendant?"
Representative Drummond answered that the section related
to the Department of Public Safety (DPS) and was handled
differently than Court View.
Mr. Fitzgerald added that DPS used a database called the
Alaska Public Safety Information Network (APSIN) and used
the data from the network for record requests from
companies and industries. The information was sold for a
fee. He detailed that individuals would apply to DPS via an
application process to prohibit the sale of their record
for the standalone conviction of simple possession of
marijuana. If other charges or convictions existed, they
would be released; only the simple possession charge would
be withheld.
2:23:39 PM
Senator Stevens asked what constituted the charge of simple
possession of marijuana. Representative Drummond replied
that simple possession applied to one ounce or less of
marijuana. Senator Stevens related that times had changed
since he was in the army many years ago when the penalty
for possession was much more severe.
Co-Chair MacKinnon asked whether the bill applied
retroactively in perpetuity. Mr. Fitzgerald answered that
Court View records would be removed from the entire
database. The DPS records would be removed via application
and would depend on all the applicants that applied to have
their records held.
2:25:39 PM
Co-Chair MacKinnon stated that the answer was yes or no and
wanted more clarity. Representative Drummond thought that
the answer was no. She referenced a Legislative Research
Services report (copy on file)[Conviction Data for
Marijuana Possession in Alaska, 2007-2017]and relayed that
"the Court System was able to provide, for the years 2007
through 2017, a count of cases in which defendants had one
or more convictions only under the relevant statute." The
count totaled approximately 700 individuals. She stated
that convictions prior to 2007 were not contained in Court
View. She deferred to the Court System for the answer. She
added that 2012 was the first year that all courts in the
state were entering case information on CourtView; more
cases in other courts around the state were likely. Co-
Chair MacKinnon asked what year the state legalized
marijuana. Representative Drummond replied legalization
occurred in February 2015. Co-Chair MacKinnon asked whether
the records prior to the date would be removed.
Representative Drummond responded in the affirmative. She
stated that there were hundreds of cases prior to 2015 but
tapered down to two cases in 2017.
2:28:15 PM
Senator Stevens inquired whether the provision included
more than one arrest. Representative Drummond replied in
the affirmative. She restated that the bill only removed a
simple marijuana conviction that was not part of multiple
other charges.
2:29:55 PM
Co-Chair MacKinnon OPENED public testimony.
2:30:36 PM
CASEY REYNOLDS, COMMUNICATIONS DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION OF ALASKA, ANCHORAGE (via teleconference),
spoke in support of the bill. He stated that the American
Civil Liberties Union (ACLU) had two primary concerns. He
explained that racial disparity in marijuana convictions,
both nationally and in the state were prevalent. A
significant disparity existed between the enforcement of
marijuana laws on racial lines even though marijuana use
was the same among whites and minority groups. He detailed
that when comparing census data to arrest data, 7 percent
of African Americans were arrested, representing 3.3
percent of the state population, and Alaska Natives
comprised 14.8 percent of the population and represented
23.5 percent of the arrests. Legalization greatly
diminished some of the disparity in the Alaska criminal
justice system. He viewed HB 316 as a way to fully close
the disparity gap.
Mr. Reynolds communicated that the second ACLU concern was
related to privacy issues. He indicated that the state had
a privacy provision and the ACLU believed that Alaska
should not be collecting or distributing information about
its citizens except for a compelling public purpose.
Initially, the activity was criminal, and a compelling
public purpose existed, but the compelling purpose was
negated when the state legalized and taxed marijuana. The
ACLU did not feel that any compelling public purpose
existed for the government to report on its citizens about
activity that was currently legal.
Co-Chair MacKinnon CLOSED public testimony.
2:33:40 PM
Co-Chair MacKinnon recalled a previous bill related to
state compliance on sexual assault reporting and how it
impacted non-residents and CourtView. She asked for
comments from the Court System representative.
2:34:38 PM
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, informed
the committee that she last dealt with the issue one year
ago and attempted to remember the details. She relayed that
the bill related to domestic violence protective orders.
The Court System did publish petitions for domestic
violence protective orders unless they were immediately
denied by a judge. The bill proposed halting publishing
domestic violence protective orders because the federal
Violence Against Women Act (VAWA) prohibited publishing
protective orders from another state. The court interpreted
VAWA literally and the Court System did not publish out-of-
state protective orders but continued to publish Alaska
protective orders on CourtView. Co-Chair MacKinnon
remembered that the state decision was not entirely
consistent with the federal law. She elaborated that
protective orders were sometimes used to advantage the
party requesting the order. She had seen protective orders
being used against one parent in a child custody battle.
The bill passed without addressing the issue and she
wondered how the Court System currently established
"equity" when issuing protective orders since evidence of
the threat was not considered. Ms. Meade surmised that Co-
Chair MacKinnon's concern was that because every protective
order that was not immediately denied was published on
CourtView there were some individuals named that did not
commit an act of domestic violence. The Court System
determined that if the protective order petition was
granted at the first hearing, the order was published on
CourtView and remained listed. She mentioned that the
legislature could enact a statute to alter the Courts
behavior in the matter.
2:38:43 PM
Co-Chair MacKinnon asked for the Courts comments or
clarifications on HB 316. Ms. Meade indicated that Section
1 dealt with DPS and she deferred to the department to
address that section of the bill. She noted that Section 2
related to CourtView. She clarified that CourtView was not
the state's official criminal database. She interpreted
that Section 2 mandated the Court to remove all prior
convictions for possession of less than one ounce of
marijuana that were not dismissed as part of a plea
agreement in another criminal case. With passage of the
bill, the Court System would remove all roughly 700 cases.
The Court System had public records going back further than
2007 that would also be removed, which amounted to
approximately 200 more cases. She noted that the bill did
not have a fiscal impact on the Court System. Co-Chair
MacKinnon referred to Senator Steven's question regarding
multiple convictions for simple possession and asked for
clarification. Ms. Meade confirmed that the bill would
remove multiple simple possession charges from CourtView.
She relayed that the sponsor had indicated that the bill
did not remove the simple possession charge that included
conviction of other charges. She clarified that if other
criminal charges conjoined with the simple possession
charge were acquitted and only the simple possession
conviction remained, the case would be removed from
CourtView.
2:43:10 PM
Senator Stevens understood that the only conviction that
would be removed in a case with multiple charges was the
simple possession charge. Ms. Meade reiterated that in a
case with multiple charges that ended with a lone
conviction of simple possession of marijuana, the case
would be removed from CourtView.
Co-Chair MacKinnon referred to the criminal justice reform
debate and noted that one of the reforms that was changed
was a provision on small petty theft or shop lifting that
included multiple infractions. She explained that some
shoplifters were committing serial small thefts on multiple
businesses. The scenario had not been considered in the
reform discussions and had a significant impact on
businesses. She offered that some legislators were
reluctant to support a "one-time and done" backtracking
over time due to the petty theft scenario. She wondered
whether multiple convictions should be considered. She
stated that Alaska had previously legalized marijuana
before the current initiative passed. The initiative
related to commercialization and taxation of marijuana and
not legalization. Ms. Meade answered that if the committee
wanted to change the provision to exclude multiple charges
the Court System would comply. She felt the issue was a
policy call.
2:45:39 PM
Senator Micciche stated that possession of marijuana of up
to four ounces was not legal outside of a person's home
prior to the initiative. He added that under the initiative
public consumption was still illegal. He asked for
confirmation whether public consumption was still illegal.
Ms. Meade answered in the affirmative but added that it was
reduced from a crime to a violation; the offender received
a citation. Senator Micciche referred to his previous
question related to page 1, lines 5 and 6 of the bill and
surmised that DPS could no longer release the records of a
potential employee with single possession convictions. Ms.
Meade clarified that Section 2 only eliminated the record
from Court View and a person could request records from the
courthouse. She observed that Section 1 related to the
actual criminal background check from DPS and they would be
prohibited from releasing the records if the individual
applied for removal, which was considered an "opt-in"
system. The Court System would automatically remove the
records from CourtView. Senator Micciche questioned whether
an employer could gain access to the marijuana records
either through DPS or submitting a request at a courthouse.
Ms. Meade responded that a person could gain access to the
records at a court house through a special kiosk. She
furthered that the convictions would be removed from APSIN
but only if the individual opted-in and applied to have
their record removed.
2:49:46 PM
Vice-Chair Bishop hypothesized a scenario of an individual
who was convicted in 2008 of simple possession had no
further convictions and wanted to become a state trooper.
He asked whether the individual could sign a document to
allow the potential employer to see the conviction record
in ASPIN.
2:51:24 PM
ALLISON HANZAWA, SPECIAL ASSISTANT TO THE COMMISSIONER,
DEPARTMENT OF PUBLIC SAFETY, answered that making the
record available after an individual opted-in depended on
the circumstances. She explained that the bill was not
expunging the criminal record and it would still be
available for criminal justice activities and any law
enforcement employers or licensing organizations listed
under AS 12.62.400. The bill only applied to a narrow
section of AS 12.62.160 for the "any person" or general
employment background check.
Co-Chair MacKinnon asked whether a federal inquiry would
have access to the record of a person who opted-in. Ms.
Hanzawa stated that the record would remain in the federal
system and the bill only applied to the state. Co-Chair
MacKinnon declared that she did not vote for the initiative
and felt it contributed to crime in the Anchorage area. She
asked how the provision was "the right thing to do for
public safety." Ms. Hanzawa replied that DPS was not taking
a position on the public policy aspect of the legislation.
The department's concern was over how to implement the law
and maintain the integrity of criminal justice records. Co-
Chair MacKinnon asked if an individual was carrying under
one ounce of marijuana was it likely the person was also
driving impaired or using the substance in public. Ms.
Hanzawa responded that she did not possess any statistical
data to answer the question. She felt that if another
charge such as driving under the influence happened at the
time of the simple possession charge that the bill was not
applicable.
2:55:12 PM
Senator Micciche remarked that one simple possession charge
that happened years ago should not be a barrier to
employment. He used receiving speeding tickets before a
speeding limit was increased as example of a fair
comparison. Ms. Hanzawa restated that the department did
not take a position on the bill.
Vice-Chair Bishop stated that speeding tickets were
automatically removed within 10 years if a clean driving
record was maintained since the ticket. He asked whether he
was correct. Ms. Hanzawa was unable to answer the question.
Co-Chair MacKinnon stated that regardless of how she felt
about the initiative it was the law and expressed that she
had an issue with retroactively erasing records for a
conviction that was illegal at the time. She believed that
her concern was consistent with Senator Micciche's
comparison with speeding tickets.
2:58:23 PM
Vice-Chair Bishop discussed the fiscal notes. He reported
that the zero Judiciary fiscal note FN1 (JUD) was allocated
to Trial Courts and read the following from page 2 of the
analysis:
The court system can remove these cases from the
public version of CourtView, and can disallow public
access to the paper files, without fiscal impact.
Doing so will require some staff time for
administrators to revise the CourtView parameters and
electronically designate the files as confidential,
but we are able to absorb that task in the normal
course of business. The court system therefore submits
this zero fiscal note.
Vice-Chair Bishop moved to the fiscal impact note from DPS
DPS3 (DPS) and indicated that $28 thousand was allocated to
the Criminal Justice Information Systems Program in FY
2019. He read the following analysis on page 2:
There are 1,939 records in APSIN for stand-alone
convictions applicable under this bill. Should the
bill pass, DPS staff would research and redact the
applicable records upon request. DPS does not
anticipate this to result in a significant increase in
workload for CJIS Program staff. However, to ensure
that redacted records are not inadvertently released,
APSIN would need an additional element of programming
to block the identified criminal history records. This
would require 200 hours of programmer time at $140 per
hour, resulting in a one-time cost of $28,000.
Co-Chair MacKinnon asked Ms. Hanzawa to check with the
Department of Corrections to ensure that the bill would not
apply to anyone currently incarcerated. She did not believe
so but wanted confirmation. Ms. Hanzawa agreed with the
request.
Co-Chair MacKinnon invited Mr. Fitzgerald to address any
concerns that were expressed by the committee or make
closing comments. Mr. Fitzgerald offered to provide any
additional information to members in response to concerns.
Co-Chair MacKinnon reiterated her issue with the bill. Mr.
Fitzgerald offered to provide an answer in writing.
Co-Chair MacKinnon announced that amendments or concerns
were due the following day by 5pm.
3:03:55 PM
Co-Chair MacKinnon asked whether the bill affected anyone
currently incarcerated. DAN LOWDEN, CAPTAIN, ALASKA STATE
TROOPERS, DEPARTMENT OF PUBLIC SAFETY (via teleconference),
responded that he had to review APSIN to provide an answer.
Co-Chair MacKinnon restated her question regarding the
department's position on the bill. Mr. Lowden answered that
DPS was taking a neutral position. He alluded to hearing
much discussion pertaining to both sides of the issue.
Senator Micciche voiced that the conviction remained on the
record and was not expunged. He described the issue as
whether the charge was "easily" visible to the public. Co-
Chair MacKinnon agreed with his statement and noted that
the hearing had established that detail. She offered that
landlords and insurance companies would not be able to
access the records. She pointed out that the bill
considered barriers to employment and housing and the issue
"cut both ways."
CSHB 316(FIN) was HEARD and HELD in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 316 Supporting Doc ACLU.pdf |
SFIN 4/25/2018 1:30:00 PM |
HB 316 |
| HB316 Sponsor Statement.pdf |
SFIN 4/25/2018 1:30:00 PM |
HB 316 |
| HB 316 Supporting Doc Legislative Research- Convicstions for Marijuana Possession 07-17.pdf |
SFIN 4/25/2018 1:30:00 PM |
HB 316 |
| SB 142 Capital Work Draft version O.pdf |
SFIN 4/25/2018 1:30:00 PM |
SB 142 |
| HB 316 - Response to Sen. MacKinnon question_.pdf |
SFIN 4/25/2018 1:30:00 PM |
HB 316 |