Legislature(2023 - 2024)ADAMS 519
04/13/2023 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB66 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 66 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
April 13, 2023
1:33 p.m.
1:33:55 PM
CALL TO ORDER
Co-Chair Foster called the House Finance Committee meeting
to order at 1:33 p.m.
MEMBERS PRESENT
Representative Bryce Edgmon, Co-Chair
Representative Neal Foster, Co-Chair
Representative Julie Coulombe
Representative Mike Cronk
Representative Alyse Galvin
Representative Sara Hannan
Representative Andy Josephson
Representative Dan Ortiz
Representative Will Stapp
Representative Frank Tomaszewski
MEMBERS ABSENT
Representative DeLena Johnson, Co-Chair
ALSO PRESENT
John Skidmore, Deputy Attorney General, Criminal Division,
Department of Law; Kathe Tallmadge, Legal Intern, Criminal
Division, Department of Law; April Wilkerson, Deputy
Commissioner, Department of Corrections.
PRESENT VIA TELECONFERENCE
Sandy Snodgrass, CEO, Alaska Fentanyl Response Project;
Sidney Wood, Deputy Director of Institutions, Department of
Corrections.
SUMMARY
HB 66 CONTROLLED SUB.;HOMICIDE;GOOD TIME DEDUC.
HB 66 was HEARD and HELD in committee for further
consideration.
Co-Chair Foster reviewed the agenda for the meeting.
HOUSE BILL NO. 66
"An Act relating to homicide resulting from conduct
involving controlled substances; relating to the
computation of good time; and providing for an
effective date."
1:35:22 PM
JOHN SKIDMORE, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, introduced himself.
KATHE TALLMADGE, LEGAL INTERN, CRIMINAL DIVISION,
DEPARTMENT OF LAW, introduced herself.
Mr. Skidmore explained that he would be presenting on the
way in which Alaska should be responding to the substantial
increase in drug overdose deaths in the state. He reported
that prior to the increase, between 100 and 140 people died
per year due to drug overdoses, but the number had
increased to over 250 deaths per year. The number seemed to
be increasing every year. Overdose deaths were growing
across the country, but the deaths in Alaska had increased
by the highest percent in the nation. The deaths were being
driven by two substances: fentanyl and methamphetamine. He
referred to a report titled "2021 Drug Overdose Mortality
Update," which was released by the Alaska's Department of
Health on July 25, 2022 (copy on file) and detailed the
increase in overdoses deaths and the substances that were
causing the deaths.
Mr. Skidmore relayed that in 2006, the state legislature
passed a law which created a new subsection for
manslaughter. The subsection related to the knowing
manufacture and delivery of controlled substances where a
death occurred as the direct result of the ingestion of the
substance. He clarified that if a person provided a
substance to another person who then died as a result of
the substance, the person who provided the substance would
be held accountable and could receive a Class A felony. The
Department of Law (DOL) had used the law to prosecute
individuals, but it was used infrequently because the crime
was difficult to prove. Since January 1, 2018, the state
had charged the offense seven times. He would share some
examples of situations in which the law had been used and
the crime could be proven.
Mr. Skidmore continued that in 2019, there was one case in
which four individuals were charged. He would refer to the
involved persons as individuals A, B, C, and D. Individual
A sold drugs to individual B, who then sold drugs to C and
D. Individuals C and D used the drugs with a fifth person
who then died as a direct result of the ingestion of the
drugs. All four individuals were charged with manslaughter.
He relayed that individuals C and D entered into plea
negotiations with the state and agreed to testify against
individual B. Individuals C and D were ultimately convicted
of misconduct involving controlled substances in the second
degree. Individuals C and D received a sentence of four
years with one and a half years in prison and two and a
half years suspended and on probation. The cooperation of
individuals C and D allowed DOL to prosecute individual B;
however, individual B would not cooperate and identify
individual A; therefore individual B was ultimately
convicted of manslaughter. The department had to dismiss
the charge against individual A because it could not
convict individual A without testimony from the others. He
concluded that there was not sufficient evidence in order
to make a conviction.
1:40:25 PM
Mr. Skidmore explained that HB 66 proposed to move the
classification of manslaughter to murder in the second
degree. The change would allow the department to impose
harsher penalties on the person who was ultimately
convicted of the crime.
Mr. Skidmore offered another example of an incident that
also occurred in 2019 and was unrelated to the previous
case. He relayed that an individual had provided drugs to
another individual who ultimately died as a result of
ingesting the drugs. The defendant who had provided the
drugs remained with the person who died until the
paramedics arrived; however, the defendant had several
opportunities to call for help earlier and failed to do so.
Instead of calling the authorities, the defendant opted to
make risky and distasteful choices in response to the
individual who was overdosing. He provided examples of the
choices the defendant made, such as to place the overdosing
individual in an ice bath in an attempt to reverse the
overdose. In addition, the defendant also gave the victim's
car and wallet to the individuals that originally provided
the drugs in order to prevent the authorities from finding
the individuals who had distributed the drugs. The
defendant refused to provide any information about other
individuals involved in distributing the drugs and the
defendant was therefore convicted. The defendant received a
sentence of nine years: six years served in prison and
three years of probation.
Mr. Skidmore reiterated that the example was illustrative
of the types of cases in which the manslaughter charge was
used. He thought that the convicted individuals in both
examples were deserving of a more severe punishment and the
bill would allow for courts to have greater discretion.
Mr. Skidmore reported that methamphetamine and fentanyl
were the main culprits of overdose deaths. Between 2017 and
2021, there was a 417 percent increase in overdose deaths
related to fentanyl. The vast majority of the deaths were
not occurring due to the ingestion of a single drug, but
due to a combination of drugs. It was important to be able
to address all of the drugs involved when a drug overdose
occurred.
Mr. Skidmore indicated that an additional provision of the
bill was to examine the use of "good time." He explained
that good time referred to a situation in which a person
had been convicted and was eligible for parole. There were
two types of parole: discretionary parole and mandatory
parole. He explained that discretionary parole involved an
inmate repeatedly going before the parole board and
requesting permission to be released from jail.
Discretionary parole was unrelated to good time. Mandatory
parole was when an inmate was automatically released from
jail when a portion of the sentence still needed to be
served. It was an effort to integrate an inmate back into
the community to begin rehabilitation efforts while
supervised by a probation officer or parole officer.
Mr. Skidmore elaborated that eligibility for mandatory
parole and good time was based upon an inmate's behavior
while incarcerated. If an inmate exhibited poor behavior
while incarcerated, good time would be reduced and the
likelihood for an individual to receive mandatory parole
would also be reduced.
1:45:57 PM
Mr. Skidmore continued that if an individual violated
particular statutes, the individual would be ineligible for
mandatory parole. The bill proposed to add the distribution
or the dealing of drugs to the list of crimes that made an
individual ineligible for mandatory parole.
Mr. Skidmore explained that in drug distributions, there
was typically a supply side and a demand side. An
additional provision of the bill addressed the
circumstances in which a person was not seeking drugs, but
someone else administered or delivered the drug to them
without consent. For example, the provision would apply if
an individual covertly put a controlled substance into
another person's drink at a bar. He questioned whether an
individual supplying drugs to a person seeking the drugs
should be treated the same as an individual supplying drugs
to a person who was not seeking drugs. The provision
considered whether a person was incapable, incapacitated,
or unaware that the drugs were being delivered to them.
Similar concepts and definitions were found in Alaska's
sexual assault statutes. If an individual was incapable,
incapacitated, or unaware that they were taking drugs, the
crime would be considered a more severe offense than if the
individual was seeking the drugs. It would elevate the
crime to a classified felony and the offender could receive
a 5-year to 99-year sentence.
Mr. Skidmore continued that the next provision in the bill
referred to "special circumstances." There were a variety
of felony types in the state; for example, Class A felonies
were usually assigned to first-time offenders and involved
a presumptive sentence of four to seven years and a maximum
of 20 years. He explained that special circumstances
referred to a situation in which there was an additional
element to a felony that elevated the first-time
presumptive sentence. When special circumstances were
established, the penalty increased from four to seven years
to seven to eleven years. The bill proposed to add the
distribution of Schedule I drugs as a special circumstance
in order to elevate the penalty.
Mr. Skidmore highlighted the controlled substance statutes
reference chart (copy on file). He explained that page 1
the chart showed the statutes that regulated controlled
substances, the class and range of the substance, and the
types of conduct that would be considered criminal under
the statutes. The chart was not intended to be an
exhaustive explanation of the statutes but was simply meant
to offer some quick guidance on relevant subsections. He
noted that page 2 of the chart provided the schedules,
which included a list of the drugs that the state had
determined were illegal to provide to individuals unless
prescribed by a licensed medical practitioner. The document
listed samples of the types of drugs that were found within
the schedules. He emphasized that it was not a complete
listing, but it was intended to offer some context that
could be useful to legislators when making policy calls.
Co-Chair Foster suggested that the presentation conclude
with a sectional analysis.
1:52:10 PM
Ms. Tallmade read through the sectional analysis of the
bill (copy on file):
Section 1. This section reclassifies a homicide
resulting from conduct involving controlled substances
from manslaughter to murder in the second degree. A
person is guilty of murder in the second degree under
this theory where the person violates misconduct
involving a controlled substance in the first, second,
third, or fourth degree for a schedule IVA controlled
substance, and a person dies as a result of ingesting
the drugs.
Section 2. This section amends misconduct involving a
controlled substance in the first degree (unclassified
felony) if a person delivers a schedule IA, IIA, IIIA,
or IVA controlled substance to a person who is
mentally incapable, incapacitated, or unaware that a
controlled substance is being delivered.
Section 3. This section adds definitions for
"incapacitated" and "mentally incapable" to misconduct
involving a controlled substance in the first degree.
This change is related to the change made in section
2.
Section 4. This section creates an enhanced sentencing
range of seven 11 years for persons who are
convicted of class A felony level manufacturing or
delivering a schedule IA controlled substance.
Section 5. This section amends computation of good
time to preclude individuals convicted of misconduct
involving a controlled substance in the first, second,
third, and fourth degree from receiving a good time
deduction from their sentence where the conduct
involves manufacturing or delivering or possessing
with the intent to manufacture or deliver a controlled
substance.
Section 6. This section is the repealer section.
Section 7. This section is the applicability section.
This bill will apply to offenses occurring on or after
the effective date.
Section 8. This section establishes the effective date
as July 1, 2023
Co-Chair Foster recommended that that the committee hear
invited testimony before taking questions.
1:54:11 PM
SANDY SNODGRASS, CEO, ALASKA FENTANYL RESPONSE PROJECT (via
teleconference), thanked the committee for hearing her
testimony in support of the bill. She shared that her son,
Robert Snodgrass, was poisoned to death by fentanyl on
October 26, 2021, at the age of 22. She had been advocating
for fentanyl awareness, education, and prevention as well
as for investigation and conviction since her son's death.
Ms. Snodgrass thought that her son's death was a poisoning
rather than an accidental overdose and should be considered
a drug-induced homicide. The distributors and manufacturers
of fentanyl should be punished to the fullest extent of the
law, which would be the effect of the bill. The legislation
would also allow prosecutors to negotiate with lower
profile drug dealers and incentivize the lower profile
dealers to provide information about the higher profile
dealers to the authorities. She thought that in the first
example given by Mr. Skidmore, individual B would have been
more likely to provide information on individual A if the
bill was enacted at the time.
Ms. Snodgrass recounted some recent overdose cases that had
occurred in Alaska. In the last two weeks, five people had
died in the Mat-Su Valley due to fentanyl poisoning and 20
others had presented to emergency rooms. Fortunately, the
latter 20 overdoses had been successfully reversed with
Naloxone. In March of 2022, nine people in Mat-Su died of
an overdose and 25 people survived after overdosing due to
the administration of Naloxone. In Anchorage in the last
two weeks, eight high school students had overdosed on
fentanyl and the overdoses were successfully reversed. In
Juneau, 3,000 pills had recently been confiscated. In
addition, 2,000 pills were found on a flight going to
Togiak, a rural community near Dillingham. Drug
distributors were targeting Alaska due to the high price
for which the drugs could be sold in the state.
Additionally, the distributors were aware of the state laws
and were willing to take the risk because the penalties
were less strict than penalties in other states.
Ms. Snodgrass urged the committee to pass the bill prior to
July of 2023. The bill was a tool that the government could
use to prevent further deaths because implementing the
highest penalties available would deter drug traffickers
from targeting the state.
Co-Chair Foster thought that the simplest way to summarize
the bill was that it would increase criminal consequences
for drug dealers. He wanted to clarify the meaning of the
bill for the public. He asked if his understanding was
correct.
Mr. Skidmore responded in the affirmative.
2:00:41 PM
Representative Josephson understood that if an individual
were to shoot a firearm at another individual but miss the
target, the shooter would be eligible for good time because
the other person was not injured or killed. Comparatively,
an individual who delivered a drug to another individual
would not be eligible for good time if the bill were to
pass, even if no one died. In his example, the drug dealer
would receive a harsher punishment than the shooter. He
asked if his understanding was correct.
Mr. Skidmore responded that section 5 of the bill listed
the statutes that specified the good time restrictions. He
referred to page 5 of the bill, lines 1 through 7, which
detailed the crimes that triggered good time restrictions,
such as murder and sex offenses. He agreed that in
Representative Josephson's example, the shooter would not
be restricted from receiving good time, although the
situation would be different if it were to be determined an
attempted murder. The vast majority of crimes in the state
were currently subject to good time. The bill would add all
levels of drug distribution in AS 11.71.040 through AS
11.71.110 to the restrictions.
Representative Josephson highlighted the fact that the
shooter could receive good time but the drug distributor
could not. He asked if it could be interpreted that the
state was less concerned with an individual shooting and
missing than the distribution of drugs that did not cause a
death.
Mr. Skidmore responded that it was a policy call. He
thought Representative Josephson's characterization was
fair but that it was the legislature's responsibility to
determine the severity of the punishment.
Representative Josephson understood that the decision to
increase the penalty for distributors of a wider range of
drugs was that of the House Judiciary Committee and was not
driven by the administration. He understood that the
original intent of the bill was not to increase the
presumptive penalty for the bad behavior of a legal
prescription holder, such as in his example with the opiate
prescription.
Mr. Skidmore responded that the way that the bill was
originally introduced simply included the provision to
change manslaughter and the provision restricting good
time. He noted that Representative Josephson was correct in
that the provision for the special circumstance for the
distribution of Schedule I drugs was added in the judiciary
committee.
Representative Josephson understood that in the example he
offered regarding the opiate prescription, the crime would
currently result in a sentence of likely no more than four
years if the defendant had no prior history. If the bill
were to pass in its current state, the same behavior would
result in a sentence of seven years. He asked if he was
correct.
Mr. Skidmore responded that Representative Josephson was
correct regarding the penalties that could be imposed. He
took issue with the presumption that the person who
provided the pill to the friend would be sentenced. He
emphasized the importance of prosecutorial discretion. He
thought there was good reason to prohibit a citizen from
providing drugs to another citizen, even if the drug
benefitted an ailment. The bill would make the behavior
subject to a sentence of seven years, but it was unlikely
that prosecutorial discretion would be exercised in a way
that would result in a strict sentence in the scenario
provided by Representative Josephson.
2:07:52 PM
Representative Josephson thought it would be appropriate to
offer assurance to Alaskans that there would be clear laws
surrounding prosecution. He suggested that not all
prosecutors exercised the same quality of prosecutorial
discretion as Mr. Skidmore. He asked for Mr. Skidmore's
opinion on the matter.
Mr. Skidmore responded that the provision addressing the
special circumstances was an attempt to examine the cause
of the significant increase in overdose deaths in the
state, particularly regarding fentanyl. One of the policy
calls that could be made to target fentanyl in particular
was to associate greater penalties with any situation
involving fentanyl. The question before the committee was
whether the effort to target fentanyl was appropriate. He
understood that Representative Josephson was presenting a
counterpoint as to why it might not be appropriate to
target fentanyl. He emphasized that the decision was under
the purview of the legislature.
Representative Hannan understood that Alaska led the nation
in overdose deaths and wondered which state had the
smallest increase in overdose deaths. She asked what the
drug penalties were in the states with smaller increases in
overdose deaths. She wondered how the penalties for crimes
related to fentanyl compared to Alaska's penalties.
Mr. Skidmore responded that the Center for Disease Control
(CDC) provided information about overdose deaths by state
and the CDC used the State Unintentional Drug Overdose
Reporting System (SUDORS) to collect the statistics. He
noted there was a report published on December 8, 2022,
that provided the death overdose rate by state and the
overdose class. The state with the lowest rate was Nebraska
at 9.4 percent. The average was 34.3 percent and Alaska was
over the national average at 37.9 percent. The most
significant increases were in Washington D.C. and West
Virginia. He shared that Nebraska was one of the states
that had a drug and homicide provision similar to the
provision proposed in HB 66 [Mr. Skidmore corrected his
statement later in the meeting noting that Nebraska did not
have a drug homicide provision]. He could not conclude that
the provision was expressly linked to the smaller increase.
Representative Hannan commented that no one on the
committee was pro-fentanyl and that everyone was opposed to
overdosing on recreational drugs. She was concerned that
the strategy to deal with overdose deaths was to prosecute
responsible parties after the deaths had occurred. The
strategy would not prevent deaths unless it prevented
fentanyl distribution from occurring. She recalled Mr.
Skidmore's earlier examples of cases in which fentanyl
overdoses had occurred and the individuals involved made
risky and distasteful choices. She thought the choices
implied that the individuals were thinking irrationally and
it was difficult for her to grasp that that the person's
behavior would have been different if there was a more
severe punishment. She did not think the bill would have
solved the problem in the examples provided by Mr.
Skidmore. She asked if Mr. Skidmore thought that overdoses
would be reduced if punishments were more severe.
Mr. Skidmore responded in the affirmative and added that he
saw the connection to decreased deaths in a few different
ways. By increasing the penalties, it would deter
individuals importing drugs into the state and result in
fewer drugs being introduced into the state. Secondly, the
individuals in his earlier examples did not feel that a
manslaughter conviction was severe enough to incentivize
them to provide information on the other drug distributors
involved. He argued that individuals would be more likely
to offer information on the people who provided the drugs
if the sentence was increased. It would also allow the
department to target the larger drug distributors, which
would decrease the amount of drugs in circulation and
therefore decrease overdose deaths.
2:15:20 PM
Representative Coulombe asked for a description of the
purpose of good time.
Mr. Skidmore responded that the purpose of good time was to
empower the Department of Corrections (DOC) to incentivize
good behavior.
Representative Coulombe asked how revoking eligibility for
good time for certain individuals would be beneficial,
other than by making other individuals feel better because
the offenders would be in jail for a longer period of time.
She noted that Alaska had the highest recidivism rate in
the nation. She was not certain how good time helped the
overdose situation. Although it might keep the offenders
away from the public for a couple more years, the
individuals would eventually be released back into the
community. She emphasized that she wanted to address the
fentanyl crisis and wanted to ensure that the bill actually
addressed the issue.
Mr. Skidmore responded that he agreed with the premise that
the offenders would eventually be released into the
community again. He thought that restricting good time and
keeping the convicted individuals off the streets for a
longer period of time would be beneficial. He added that
mandatory parole would not restrict discretionary parole or
probation. It was a difficult policy determination that
needed to be made by the legislature and the administration
was open to a collaborative conversation on the matter. For
example, an option would be to limit the restriction of
good time to repeat offenders or to Schedule I drugs if the
goal was to target fentanyl. He was confident that the
legislature could determine the best policy call.
Representative Coulombe commented that she thought the bill
was targeting fentanyl but she did not see the word
fentanyl in the bill. She was not certain which drug class
fentanyl fell under or why the bill included a broad
variety of drugs.
Mr. Skidmore responded that the bill's main focus was
fentanyl, but it was not exclusively focused on fentanyl.
The drug was a Schedule I controlled substance in the state
and the special circumstances provision in the bill would
therefore be targeting fentanyl. Each of the provisions
within the bill targeted fentanyl. He explained that the
bill was inclusive of other drugs because although fentanyl
created problems currently, it was possible that
derivatives of fentanyl could be created in the future. If
the bill targeted a specific type of drug and a slightly
different drug was created, the bill would not apply to the
new drug. The state experienced a similar challenge when it
was dealing with bath salts. By the time the drug was
criminalized, the individuals creating the bath salts
changed the formula just enough to no longer be addressed
by the new statutes.
Mr. Skidmore drew attention to a graph on page 5 of the
2021 Drug Overdose Mortality Update report (copy on file)
showing the increase in drug overdose deaths. The top line
of the graph showed the deaths from synthetic opioids,
which included fentanyl, and the second line showed the
overdoses from methamphetamine. He noted that the second
line was closely trailing the first. The report stated that
methamphetamine was also responsible for a significant
spike in deaths and needed to be addressed by legislation.
The bill looked at the entire picture and therefore was not
restricted to fentanyl.
2:22:28 PM
Representative Coulombe was concerned that the scope was
too broad because there were many drugs listed under the
Schedule I category. She would like the bill to target
specific overdose situations and did not think that every
situation would be covered. She was concerned that there
would be unintended consequences if the scope was too
broad.
Representative Ortiz asked if good time was an objective
determination or a subjective determination.
Mr. Skidmore responded that managing good time was
generally done by time accountants at DOC. He deferred the
question to a representative from DOC.
2:25:02 PM
SIDNEY WOOD, DEPUTY DIRECTOR OF INSTITUTIONS, DEPARTMENT OF
CORRECTIONS (via teleconference), responded that good time
was not subjective and was based on statutes. Throughout
incarceration, a person could lose good time if they
committed an infraction but would have an opportunity to
earn good time again.
Representative Ortiz asked how many convictions were
achieved by the state over the last ten years under the
original statute classifying the crime as manslaughter.
Mr. Skidmore responded that the statute was enacted in
2006. He did not have the statistics for the past ten
years, but the particular offense had been charged seven
times in the past five years with two convictions, one
dismissal, two whose charges were pled down, and two others
whose charges were still pending. The simple answer was two
individuals were convicted in the last five years.
Representative Ortiz asked if there was any evidence that
the number of convictions would increase if the bill were
to be passed.
Mr. Skidmore responded that the administration had never
taken the position that the bill would increase the number
of convictions. The bill would increase the penalties,
isolate the individuals engaged in the behavior, and give
the department better tools to charge individuals "higher
on the food chain." He thought that the more severe the
conviction, the more likely it would be for an individual
to provide information on other distributors. If the larger
distributors were taken out, the supply would be disrupted
and the impact would be significant. He could not provide
precise evidence but relayed that it was a logical
analysis.
Representative Ortiz directed attention to page 2, line 24
of the bill. He thought Mr. Skidmore had referred to
fentanyl as a schedule IA drug, however the bill referred
to it as schedule IVA. He asked what the difference was
between the two classifications.
Mr. Skidmore responded that including both classifications
intended to cover the knowing distribution of a controlled
substance under AS 11.71.110 through AS 11.71.030 or under
AS 11.71.04(a) for schedule IVA substances. Fentanyl was
found under Schedule I, which was criminalized under AS
11.71.020. The reason IVA was called out explicitly because
was because there were multiple subsections within the
statutes which included the criminalization of both IVA and
VA drugs; however, the penalty for homicide would only
apply to IVA drugs and not VA drugs. The reason for that
was because the IVA drugs were more lethal than VA. He
explained that it was currently written the same in
manslaughter laws and the bill did not make any changes to
the current laws.
Representative Ortiz understood that the reference to
Schedule I was found in "(a)(1)".
Mr. Skidmore responded in the negative and noted that it
was a "string site." He explained that AS 11.71.010
referred to misconduct involving controlled substances in
the first degree. He added that AS 11.71.021, which fell
between AS 11.71.010 and AS 11.71.030, dealt with the
distribution of fentanyl.
2:31:07 PM
Representative Galvin understood that fentanyl was much
more lethal than other drugs and when fentanyl was mixed
with other substances, it could become even more lethal.
She thought the most concerning overdose deaths were
related to fentanyl. She asked if the intention of the bill
was to address deaths related to fentanyl.
Mr. Skidmore responded that the aforementioned drug
mortality report stated that deaths from opioids and heroin
had also increased significantly. The blue line on the
graph on page 5 of the report represented total overdose
deaths.
Representative Galvin understood that deaths from other
drugs were also a concern. She found the report informative
and she was disturbed by the problem. She referred to page
8, which described evidence-based strategies to reduce drug
overdose deaths. There were five strategic categories:
prevention, harm reduction, treatment, recovery, and data
collection. She understood that the actions of the bill
would not fall into any of the five evidence-based
categories but that the bill would create general
deterrence and would help incentivize behavioral changes.
She had found information on deterrence online and read
from a report she found from the U.S. Department of Justice
(DOJ):
Increasing the severity of punishment does little to
deter crime. Laws and policies designated to deter
crime by focusing mainly on the severity of punishment
are ineffective partly because criminals know little
about the sanctions for specific crimes.
Police deter crime by increasing the perception that
criminals would be caught and punished.
Representative Galvin asked Mr. Skidmore to address the
information. She thought the strategies were conflicting.
2:37:27 PM
Mr. Skidmore responded that there were two different
components: the content of the report and the conclusions
made by DOJ. He emphasized that the evidence-based
strategies to reduce drug overdose deaths on pages 8 and 9
of the drug mortality report he provided to the committee
were all focused on the victims. He relayed that DOL
thought that focusing on victims and reducing demand was
appropriate. There were other efforts that the
administration was undertaking to reduce deaths; however,
it was not the goal of HB 66. He relayed that a reduction
in demand was already occurring and the intent was to focus
on the victims rather than the distributors of the drugs.
The goal was to prevent the drugs from entering the state
and stopping the people who were supplying the drugs. He
noted that stopping the supply was also a method to reduce
overdose deaths.
Representative Galvin noted that the drug mortality report
did not discuss how to deal with victims, but only how to
reduce deaths. She understood that reducing deaths was the
overall goal.
Mr. Skidmore agreed that it was the overall goal. However,
there were other strategies involved in prevention, such as
educational campaigns, prescription drug monitoring
programs, opioid prescribing guidelines, regulating
promotion and marketing of opioids, and better mental
health care. The aforementioned strategies were not
designed to target the supply side but were designed to
address the demand side.
Representative Galvin understood that the supply had
already been slightly disrupted. She recalled that Mr.
Skidmore reported that around 3,000 pills had been recently
seized in the state. She asked why Mr. Skidmore decided to
move in the direction of targeting the demand side rather
than making investments in disrupting the supply chain,
such as employing more investigators to find large
quantities of drugs.
Mr. Skidmore responded that the department had also
invested in the strategies Representative Galvin mentioned.
The state was a recipient of federal dollars under a
program called the High Intensity Drug Trafficking Areas
(HIDTA) which increased the number of available officers
and actions that could be taken to attack interdiction.
There were many things that the administration was doing to
address the issue and HB 66 was simply one strategy. The
article from the U.S. DOJ that Representative Galvin read
was about how to deter crime in a general sense. He did not
think the article addressed strategies to target
individuals who were engaged in drug distribution for
monetary gain. The distributors were thinking rationally
and logically and there were ways to deter these
individuals. He did not think DOJ would disagree with him.
Representative Galvin asked if Mr. Skidmore could supply
some data about the effectiveness of deterrence. She
clarified that she did not want to make life easier for
individuals who committed atrocious crimes. She wanted to
make a policy call that would help the state achieve its
goal of fewer overdose deaths. She referred to the fiscal
notes and highlighted there was little information about
the monetary impacts of the bill. Although she had heard
there were open beds in the state's prisons, an open bed
would not necessarily mean that other expenses associated
with longer sentences would be covered. She wanted to
ensure that the costs were accurate and the state was
financially prepared.
2:45:03 PM
Co-Chair Foster noted that there were individuals available
online to answer questions.
Mr. Skidmore deferred Representative Galvin's question
about the fiscal notes to a representative from DOC.
Representative Galvin asked for more information about the
term "prosecutorial discretion." She presumed that laws
should be written in explicit terms rather than allowing
for discretion.
Mr. Skidmore responded that discretion was integral to the
criminal justice system and it was exercised at many
levels. For example, prosecutors exercised discretion as
far as the charges they decide to bring forth, the
strategies they employ to resolve a case, and sentences
they choose to seek at the end of a case. He added that the
courts, investigators, parole officers, and other officers
all exercised discretion as part of their essential job
duties. Discretion was a fundamental building block in the
operation of the criminal justice system.
Mr. Skidmore agreed that it was important for the
legislature to avoid passing laws that were too broad;
however, the legislature could not write laws that would
cover every possible case. He relayed that civil law was
notoriously complicated due to the number of laws involved
in the system. Criminal law was much more straightforward
and the laws were fewer. The most impactful complications
within criminal law related to the "fact patterns." He
explained that fact patterns were infinite and it was not
possible to legislate every fact pattern in existence. If
there was a bill introduced for every possible fact
pattern, nothing else would be completed because there were
too many circumstances to cover. He reiterated that
discretion was baked into the criminal justice system at
all levels.
Co-Chair Foster noted that more detailed information on the
fiscal notes would be provided in a later meeting.
2:49:14 PM
APRIL WILKERSON, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, explained that the fiscal note by DOC [with
OMB component 1381 and control code hvsgo] was a zero
fiscal note. The department was built based on operating
the 13 institutions in the state at 100 percent capacity,
but the current inmate population was at 85 percent
capacity. She indicated that the legislation would not
cause inmate numbers to exceed the capacity of the
institutions. If the bill were to pass, the department
would exceed its capacity sooner than its current
projections for the outyears indicated; however, that was
not expected to occur for another five years. The
department thought it could absorb the cost of the
additional population based on its current capacity.
Representative Stapp relayed that he was struggling to
understand how it was possible for there to be a zero
fiscal note. The bill would cause inmates to be
incarcerated for a longer period of time and would
therefore cost the state more money.
Ms. Wilkerson responded that Representative Stapp was
correct; however, the legislation would increase the prison
population by less than 100 per day and she was confident
that the increase could be absorbed.
Representative Stapp asked for the difference between
delivered and distributed.
Mr. Skidmore responded that the definitions were found in
AS 11.71.900. He read from the statute [AS 11.73.900(7) and
AS 11.73.900(9)]:
(7) "deliver" or "delivery" means the actual,
constructive, or attempted transfer from one person to
another of an imitation controlled substance, whether
or not there is an agency relationship;
(9) "distribute" means to deliver other than by
administering or dispensing a controlled substance,
whether or not there is any money or other item of
value exchanged; it includes sale, gift, or exchange;
"distributor" means a person who distributes;
Mr. Skidmore added that distribution referred to drug
administration on a larger scale. The activities of
pharmaceutical companies were considered distribution due
to the scale.
Representative Stapp understood that there were various
levels to an organization. The intent of the bill was to
target the people who were distributing the fentanyl
throughout the state. He was concerned about the changes
made in the House Judiciary Committee which would broaden
the scope of the bill to include Schedule I drugs through
Schedule IV drugs. He asked whether good time would be
revoked for individuals charged with misconduct relating to
Schedule IV drugs as well. He wondered how the process
would work if an individual had both fentanyl and Xanax in
their system.
2:55:19 PM
Mr. Skidmore responded that the provision about good time
was not added by the judiciary committee. He asked
Representative Stapp to rephrase the question.
Representative Stapp understood that the broadening of the
drug types was added by judiciary committee. He referred to
page 3, line 7 of the bill which was amended to be more
inclusive of other drugs. He asked whether an individual
who distributed Xanax to another individual without knowing
it was a controlled substance would be eligible for good
time if charged.
Mr. Skidmore responded that the language that discussed
good time was found on page 5, Section 5 of the bill and
used a "string site" to refer to the various crimes that
would be impacted. The judiciary committee changed page 3,
Section 2 of the bill involving the delivery of drugs to a
person who was mentally incapable, incapacitated, or
unaware. He asked to which section Representative Stapp was
referring.
Representative Stapp relayed that the good time provision
in the bill amended AS 11.71.010. He understood that the
amendment in judiciary revised the same statute. The change
would add Schedule I through Schedule IV controlled
substances to the provision of the bill prohibiting good
time for individuals charged with the delivery of drugs to
an individual who was mentally incapable, incapacitated, or
unaware.
Mr. Skidmore responded that the amendment [made by the
House Judiciary Committee] appeared on page 3, lines 7
through 11 and would add Schedule II controlled substances
through Schedule IV to the provision relating to situations
in which a person provided drugs to another person who was
not requesting the drugs. He emphasized that it was
completely unrelated to good time. He explained that the
limitation on good time was found in page 5, Section 5 of
the bill, lines 8 through 10. He thought the policy
discussions for the two topics were vastly different.
Representative Stapp asked about deterrence. He noted that
Mr. Skidmore shared that Nebraska had a drug homicide
provision which resulted in the lowest number of fentanyl
deaths in the nation. He asked if his understanding was
correct.
Mr. Skidmore replied that he had mentioned Nebraska in
response to a question from Representative Hannan about the
state with the lowest rate of overdose deaths. He corrected
himself and noted that Nebraska did not have a drug
homicide provision.
Representative Stapp thought that deterrence was a good
strategy and that high penalties deterred drug trafficking
activity. He understood that the countries with the
harshest drug trafficking laws did not have a fentanyl
problem.
3:01:34 PM
Representative Josephson asked Mr. Wood if receiving
treatment for drug addiction while in custody was ever a
condition of good time.
Mr. Wood responded that a person would be eligible for good
time regardless of their adherence to a requirement from
the court to participate in drug treatment. However, if a
person failed to participate in treatment, the individual
could be subject to an anticipatory parole or probation
revocation, which would have the same impact as losing good
time. Refusal to participate in treatment could impact good
time in an indirect way, but it would not trigger
ineligibility for good time.
Representative Josephson commented that a divisive issue in
the judiciary committee was whether to increase the
sentence under a special circumstance for an individual who
gave an oxycodone pill or something similar to a friend,
family member, or acquaintance. He asked if the impact of
the bill would be a "double whammy" in that prison time
would be increased and good time eligibility would be
revoked.
Mr. Skidmore responded in the affirmative. The penalty for
distribution of Schedule I drugs would be increased and
good time would be revoked.
Representative Josephson shared that years ago, he had a
colleague on the committee whose son distributed drugs to
an individual who died as a result of ingesting the drugs.
He added that it was a federal case and the son went to
prison on a federal homicide related to drugs. He asked
where the federal jurisdiction began and ended.
Mr. Skidmore responded that he was not intimately familiar
with the federal law but generally, the federal law applied
to conduct that involved interstate activity. When an
individual was killed in relation to interstate activity,
the federal government would have jurisdiction. If the
individual was killed in Alaska, there could be a scenario
where the federal government had federal jurisdiction and
the state government had state jurisdiction and both
entities could prosecute the same individual for the same
crime. He noted that the scenario was an example where
discretion would be exercised. The state government and
federal government typically collaborated to ensure that
resources and effort were not being duplicated. There were
sometimes extenuating circumstances and nuances that caused
both entities to prosecute for the same crime.
Representative Josephson recalled a bill sponsored by
former Alaska Representative Lance Pruitt that said that if
an individual delivered a drug to a friend who began to
overdose and the deliverer of the drug called the
paramedics, the act of pursuing help was a "get out of jail
free" card.
3:07:18 PM
Mr. Skidmore recalled that the bill included a safe harbor
provision which prevented the individual from being
charged. He would have to read the statute to be sure.
Representative Josephson explained the reason he was asking
was to provide more context. He remembered that the body
was receptive to the bill.
Mr. Skidmore shared that the relevant statute was AS
11.71.311 which was a restriction on prosecution. He noted
that the statute did not involve misconduct involving
controlled substances in the first degree, second degree,
or third degree. The statute would provide a barrier to
prosecution for substances in the fourth degree, fifth
degree, or sixth degree.
Representative Hannan understood that the judiciary
committee amended the bill by adding Schedule II through
Schedule IV controlled substances. An example of a relevant
situation would be the conviction of a person giving a
Valium pill to another person who was incapacitated. She
understood that the convicted individual would no longer be
eligible for good time under the bill.
Mr. Skidmore responded that Section 2 of the bill was
amended, which addressed AS 11.71.010 relating to
misconduct involving a controlled substance in the first
degree. If the question was whether a person convicted of
misconduct involving a controlled substance in the first
degree would also become ineligible for good time under
section 5, the answer was "yes."
Representative Hannan commented that the original intent of
the bill was to address overdose deaths but it had been
expanded to include other categories of drug-related
crimes. She understood that a person could be ineligible
for good time for providing Xanax to a friend.
Mr. Skidmore responded that Section 5 involved distribution
of controlled substances in the first degree through fourth
degree. He emphasized that the delivery of controlled
substances was already illegal and the bill did not change
it. The change in Section 2 on page 3 would simply elevate
already illegal misconduct to a higher offense in
combination with another factor, such as delivering drugs
to a person who was not requesting them. The scenario would
still fall under the provision that revoked good time. He
reiterated that the good time provision would not be
expanded, but certain conduct would be elevated to a more
serious offense.
3:12:23 PM
Representative Coulombe understood that the division
between manslaughter and murder in the second degree was
intention. It was unlikely that an individual distributing
drugs intended to kill another person by causing a drug
overdose. She asked how the jump could be made from
manslaughter to murder when there was no intent.
Mr. Skidmore responded that not all murder statutes
required intention. He explained that murder in the first
degree involved intentional conduct, which was the most
serious conviction. Murder in the second degree was found
in AS 11.41.110 and included within it several other
subsections. An individual could commit homicide in the
second degree by knowingly engaging in conduct that
resulted in the death of another person under circumstances
manifesting extreme indifference to the value of human
life. An example would be a person with a firearm shooting
into an occupied tent. The shooter may not have a conscious
objective to kill the people inside the tent, but the act
involved extreme indifference to the value of human life.
Another subsection of the statute addressed felony murder,
which occurred when a person committed a felony and in the
course of the act, another person was killed. He explained
that there were many other subsections of murder in the
second degree that did not necessitate intent. He thought
murder in the second degree was an appropriate designation
for overdose deaths because it did not require intent.
Representative Coulombe referred to the drug
classifications on line 22 of page 2 of the bill, which
stated that fentanyl was a Schedule IVA controlled
substance. She understood that fentanyl was a Schedule VA
controlled substance.
Mr. Skidmore directed attention to page 2 of the controlled
substance statutes reference chart handout. He responded
that fentanyl was a Schedule IA drug. Examples of Schedule
2A controlled substances included psychedelics and
hallucinogens, stimulants, barbiturates, and cocaine. He
relayed that Schedule IIIA included stimulants,
depressants, and certain anesthetics. Schedule IVA included
benzodiazepines and ketamine. He reiterated that fentanyl
was a Schedule IA controlled substance.
Representative Coulombe asked about line 23 of page 2,
which referred to fentanyl as a Schedule IVA controlled
substance.
Mr. Skidmore responded that the particular statute
beginning with AS 11.71.010, which was the crime of
misconduct involving controlled substance in the first
degree, through AS 11.71.030, which was the crime of
misconduct involving controlled substance in the third
degree covered three different crimes: the crime of
misconduct involving controlled substance in the first
degree, second degree, and third degree. Conversely, it
could also include AS 11.71.040(a)(1), which was the crime
of misconduct involving controlled substance in the fourth
degree. He explained that the statute had multiple
subsections but the distribution of Schedule IVA and VA
controlled substances were criminalized in the same
subsection. The intent of the language was to say that if
an individual ingested a Schedule IVA drug and died, the
person who provided the substance to them could be held
accountable for the death. Due to the exclusion of Schedule
VA drugs in the language, if an individual ingested a VA
drug and died, the person who provided the drug to them
could not be held accountable. The reason behind the
exclusion was because VA drugs were not typically
associated with overdose deaths. He explained that the
policy call to exclude Schedule VA drugs was made in 2006
when the statute was first enacted.
3:18:56 PM
Representative Coulombe wanted there to be awareness that
if the bill passed, an individual could be charged with
murder if they provided Valium to another individual. She
thought it was a severe sentence but she understood the
intent of the administration. She wanted to ensure that
there was clarity on the impact of the bill.
Mr. Skidmore commented that the key element of the bill was
not the distribution of the drug, but whether the
individual died as a result of ingesting the drug.
Representative Cronk commented that drugs were rampant in
his district. He reported that all of the constituents he
had spoken to relayed that they wanted the drug dealers to
be stopped. He did not think that the bill was not doing
enough.
Co-Chair Foster indicated that the committee would return
to the bill at a later date.
Mr. Skidmore concluded that the bill was designed to
address the supply of drugs being transported into the
state that were most responsible for overdose deaths. He
noted that overdose deaths were disproportionately
impacting Alaska Natives in rural communities. He
appreciated the comments from Representative Cronk and the
overdose death report corroborated the comments.
Co-Chair Foster reviewed the agenda for the following day's
meeting.
HB 66 was HEARD and HELD in committee for further
consideration.
ADJOURNMENT
3:22:54 PM
The meeting was adjourned at 3:22 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB066 Additional Documents-Dept of Law Controlled Substances Reference Chart 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Additional Documents-Dept of Law Highlights 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Additional Documents-July 2022 Dept. of Health 2021 Drug Overdose Mortality Update 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Sectional Analysis ver B 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Summary of Changes 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Transmittal Letter 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |
| HB066 Written Testimony Rec'd by 3.29.23.pdf |
HFIN 4/13/2023 1:30:00 PM |
HB 66 |