Legislature(2023 - 2024)ADAMS 519
05/01/2023 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB66 | |
| HB28 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 66 | TELECONFERENCED | |
| += | HB 28 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
May 1, 2023
1:36 p.m.
1:36:17 PM
CALL TO ORDER
Co-Chair Foster called the House Finance Committee meeting
to order at 1:36 p.m.
MEMBERS PRESENT
Representative Bryce Edgmon, Co-Chair
Representative Neal Foster, Co-Chair
Representative DeLena Johnson, 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
None
ALSO PRESENT
April Wilkerson, Deputy Commissioner, Department of
Corrections; Nancy Meade, General Counsel, Alaska Court
System; James Stinson, Director, Office of Public Advocacy,
Department of Administration; Lisa Purington, Acting
Legislative Liaison, Department of Public Safety;
Representative Stanley Wright, Sponsor; Allan Riordan-
Randall, Staff, Representative Wright; Nancy Meade, General
Counsel, Alaska Court System; Lisa Purington, Criminal
Records and Identification Bureau Chief, Department of
Public Safety.
PRESENT VIA TELECONFERENCE
John Skidmore, Deputy Attorney General, Criminal Division,
Department of Law; Sidney Wood, Deputy Director of
Institutions and Chief Time Accounting Officer, Department
of Corrections; Samantha Cherot, Public Defender, Public
Defender Agency, Department of Administration; David
Flaten, Social Services Program Officer, Division of
Juvenile Justice, Department of Family and Community
Services; Stacy Eisert, Self, Anchorage; Nicole Cleary,
Self and Son, Eagle River; Karen Malcolm-Smith, President
and Founder, David Dylan Foundation, Arizona; Dar Walden,
Self, Anchorage; Bobby Dorton, Fairbanks Reentry Coalition,
Fairbanks; Carl Kancir, Self, Anchorage; David Morgan,
Government Affairs Associate, Reason Foundation, Atlanta.
SUMMARY
HB 28 ACCESS TO MARIJUANA CONVICTION RECORDS
HB 28 was HEARD and HELD in committee for further
consideration.
HB 66 CONTROLLED SUB.;HOMICIDE;GOOD TIME DEDUC.
HB 66 was HEARD and HELD in committee for further
consideration.
Co-Chair Foster reviewed the meeting agenda.
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."
1:37:27 PM
Co-Chair Foster asked the department to provide a brief
recap of the bill.
JOHN SKIDMORE, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW (via teleconference), relayed that the
bill was a piece of the administration's package aimed at
combatting the increase of drug delivery and overdose
deaths in Alaska. The bill increased penalties related to
delivery or distribution of controlled substances in four
ways. First, the bill addressed when controlled substance
delivery resulted in an overdose death by increasing the
penalty from manslaughter to murder in the second degree.
Second, the bill increased the classification for delivery
of drugs when the person receiving the drugs was incapable,
incapacitated, or unaware. Third, the bill added the
delivery of schedule IA drugs [e.g., fentanyl] to conduct
referred in the criminal law as a special circumstance for
class A felonies, which increased the presumptive
sentencing range for a first offense from four to seven
years to seven to eleven years. Fourth, the bill addressed
"good time." He explained that good time was the way
sentenced individuals with good behavior could be released
on parole earlier. The bill would add the delivery of
controlled substances to the list of crimes (e.g., murder
and other class A or unclassified felonies in AS 11.41 or
crimes against persons) that were ineligible for good time.
Mr. Skidmore clarified that the bill was only one part of
the administration's approach to combatting problems
associated with drugs in the state. There were other bills
seeking to address addiction and provide more resources for
people. He highlighted that the bill did not criminalize
any conduct that was not already illegal. He explained that
the bill addressed conduct that was already illegal and
adjusted sentences resulting in higher penalties for the
delivery of the drugs.
1:41:23 PM
Representative Josephson referenced Mr. Skidmore's mention
of good time and the most heinous conduct involving
delivery. He asked for verification there was more benign
conduct that would also not receive good time under the
bill.
Mr. Skidmore responded affirmatively. He clarified that the
good time restrictions applied to delivery of any
controlled substance. The delivery that resulted in death
was not impacted by the provision of good time because
under the circumstances the crime would already be
manslaughter or murder. He explained that good time was
restricted for murder crimes already.
Co-Chair Foster asked Mr. Skidmore to review the
department's fiscal note.
Mr. Skidmore reviewed the department's zero fiscal note,
OMB Component Number 2202, control code wyEuj. He explained
that while the department believed there was the
possibility of some increased litigation because of
increased penalties, the increase was not significant
enough to warrant any additional positions or spending. He
reiterated his earlier testimony that the bill did not
criminalize any conduct that was not previously a crime;
therefore, there would not be more cases coming to the
Department of Law (DOL), it merely meant the consequences
or penalties for some conduct may be increased.
1:43:51 PM
Co-Chair Foster asked Mr. Skidmore if he had any additional
remarks on the bill.
Mr. Skidmore thanked the committee. He recognized that some
of the provisions had more widespread impacts. The
administration was interested in the conversation with the
legislature on determining the right policy calls. He was
available for questions.
Co-Chair Foster asked to hear from the Department of
Corrections (DOC) about good time deductions and the fiscal
note.
APRIL WILKERSON, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, relayed that the good time aspect of the
legislation was the largest impact to the department's
offender population. She deferred to a colleague for any
detailed questions regarding good time impacts and
calculations.
SIDNEY WOOD, DEPUTY DIRECTOR OF INSTITUTIONS AND CHIEF TIME
ACCOUNTING OFFICER, DEPARTMENT OF CORRECTIONS (via
teleconference), introduced himself.
Representative Galvin noted that the bill would result in
an increased number of individuals being incarcerated for a
longer period of time. She understood there were available
beds and enough employees. She wondered if additional food,
laundry, and electricity could accelerate costs.
Ms. Wilkerson replied that Representative Galvin was
correct. She explained that based on current capacity, DOC
had the ability to house another 650 inmates before adding
capacity. She relayed that the existing budget was
sufficient for its current capacity. She elaborated that
some of the drivers that would exceed the budget were
increasing economic costs. She relayed that the bill would
result in getting to the crossroads sooner than projected;
however, the department did not see the result of exceeding
capacity within the next six to ten years.
Representative Galvin remarked that historically there had
been other bills that had resulted in more Alaskans in
prison and sometimes properly so. She was not suggesting
the law should not be passed. She wanted to take care to
ensure the legislature did not set DOC up for a situation
where its staff was feeling unsupported and the state
incurred costs. She believed Ms. Wilkerson was suggesting
it was okay to add additional inmates and there would
likely be costs but it was not something DOC could
currently calculate or determine. She wondered if the
department could look at previous budgets to see when its
budget experienced a sudden increase. She stated the
increase [in inmates] impacted food, clothing, water, and
sewer. She wanted to be mindful of the issue in order to be
able to budget for the cost in the future.
1:49:13 PM
Ms. Wilkerson stated the point was taken clearly. She
stated that when compounded, the various pieces of
legislation had a greater impact than each piece of
legislation individually.
Representative Stapp asked how many drug felons were
awarded good time on an annual basis.
Ms. Wilkerson answered that DOC anticipated that the
legislation would impact just under 100 individuals on a
daily basis. She deferred to Mr. Wood for additional
details.
Mr. Wood responded that he did not have the information on
hand. He stated that unless there was something else
impacting the sentence (e.g., other charges), generally
individuals incarcerated on drug charges were eligible for
good time.
Representative Stapp asked for the current number of
inmates.
Ms. Wilkerson replied there were currently 4,450 inmates.
She highlighted that the bulk of the population
incarcerated for a drug charge fell under misconduct in the
fifth degree. She explained that the legislation pertained
to individuals convicted of charges in the first to fourth
degree; therefore, the bulk of the individuals would
continue to earn good time.
Representative Stapp asked for the number.
Ms. Wilkerson responded that she did not have the number on
hand.
Representative Stapp asked how many drug convictions there
were annually in Alaska.
Ms. Wilkerson replied that she would follow up with the
information.
Co-Chair Foster requested a review of the DOC fiscal note,
OMB component 1381.
Ms. Wilkerson replied that the fiscal note primarily looked
at individuals within the DOC institutions. She relayed
that the current population was running at about 83 to 85
percent capacity, which left room for growth of about 650
general capacity beds and just over 800 of the maximum
capacity beds. She noted it excluded beds currently offline
due to construction. The department anticipated the
legislation would impact the department's daily population
beginning in year three and would result in 97 individuals
being held longer on a daily basis.
Representative Cronk reasoned that the legislation was not
adding more cost to the department because it was funded
for a higher number of inmates and was not currently at
capacity.
Ms. Wilkerson replied affirmatively. She explained that
COVID-19 and some of the other changes that occurred over
the past three years had slowed the growth of the offender
population, which would allow DOC to absorb the population
associated with the legislation.
1:53:53 PM
Representative Hannan stated that Ms. Wilkerson had
frequently talked about cost drivers at DOC largely being
health conditions amongst the very sick population. She
noted that the department's data and testimony at various
points had specified that 80 percent of incarcerated
individuals had a substance use disorder. She asked how
many individuals were able to get programming for the
disorder during incarceration and the associated expense.
She stated that the bill would likely result in a
percentage of individuals remaining in prison for a longer
period who were likely to have a substance use disorder.
She wondered if the state would be able to accommodate the
individuals with treatment. She stated it was her
impression that the state already could not provide
substance use treatment for the majority of incarcerated
individuals.
Ms. Wilkerson answered that she could follow up with the
numbers and associated costs. The department currently
offered programming during incarceration. She relayed
contractors providing the service for DOC were facing
workforce challenges. The department was currently looking
at technology (e.g., telehealth) to try to expand the
ability for programming.
Representative Hannan asked if programs were prioritized
for individuals getting closer to release because they were
limited by budget and contractor availability. She referred
to individuals who under the legislation would no longer
have good time release and no sentence motivation to
participate earlier. She wondered whether program
availability could be expanded to reach individuals facing
addiction who had just entered jail (as opposed to the
individual sitting in jail for 10 years and possibly
receiving a year of treatment).
Ms. Wilkerson answered that the department prioritized
treatment for individuals closer to release; however, the
department would meet the needs of others as space was
available and the desire for programming was requested.
Representative Josephson referenced Ms. Wilkerson's
statement that the majority of offenders in AS 11.71 (drug
cases) were in the mixed 5 category. He highlighted that
the first type in that category was marijuana related. He
thought there was less and less in that specific category
than ever before because there was no particular point to
be criminal about it. He noted there was one category on
record keeping. Additionally, he highlighted language
reading, "possession of all other schedules." He surmised
that most people in custody who were guilty of an AS 11.71
offense were convicted of possession rather than delivering
or manufacturing. He considered that it may have been part
of a plea bargain and the easy compromise to reach.
1:58:06 PM
Ms. Wilkerson responded that she did not have that level of
detail. She offered to follow up with the conviction charge
citation numbers.
Representative Josephson considered that perhaps Mr.
Skidmore knew more about the specific issue. He expressed
surprise that people were in custody for possession.
Mr. Skidmore considered AS 11.71 crimes including
possession with intent to deliver. He would have to see the
statistics related to the individuals Ms. Wilkerson was
referring to. He stated it was necessary to be cautious
when looking at conduct to distinguish between possession
and possession with intent to deliver. The mixed 5 category
was typically possession and not possession with the intent
to deliver. He relayed that in the mixed 3 and 4 categories
it was not out of the realm of possibility that many of the
individuals that possess with intent to deliver ended up
resolving their charges with a simple possession charge.
Representative Coulombe stated her understanding that good
time was an incentive to get people on track earlier and
out earlier. She asked if that was the department's
position on good time.
Ms. Wilkerson agreed; however, it was one of several tools
utilized by the department. She relayed that the department
would continue to have community placement as an option if
good time was removed from the individuals.
2:00:45 PM
Representative Coulombe asked if Ms. Wilkerson was
referring to community placement after an individual was
released from incarceration. She asked for more
information.
Ms. Wilkerson answered that DOC could better utilize its
halfway house beds and electronic monitoring if the
individuals were no longer eligible for good time.
Representative Coulombe asked what active treatment
programs were currently offered.
Ms. Wilkerson inquired if Representative Coulombe was
asking about the providers or the process.
Representative Coulombe provided a scenario of an
individual with a drug problem incarcerated for possession
with an intent to sell. She asked what was happening in
correctional facilities to help people get off of drugs.
Ms. Wilkerson replied that she would have to follow up with
details. She elaborated that when an offender was booked
into a facility a risk assessment would identify the
individual's programmatic needs. The department offered
various programs to assist individuals including reentry
support to assist with addiction.
Representative Coulombe thought it sounded like the
treatment was something that happened when individuals were
released. She asked if there were 12-step groups or
treatment within the correctional facilities for drug use
problems. She remarked that the bill would result in longer
prison terms. She believed that if there was no treatment
in the facility it was pushing the problem down the road
and not helping anything other than keeping an individual
off the street. She remarked that in some cases that may be
valid, but she was trying to understand what programs were
being used in the facilities while individuals were
incarcerated.
Ms. Wilkerson answered that she would provide a detailed
list of programs offered by facility. She relayed that DOC
offered assessments and volunteers came to DOC facilities
to provide NA [narcotics anonymous] and AA [alcoholics
anonymous] services as needed. Additionally, there were
providers offering residential and short-term outpatient
substance abuse treatment.
2:03:41 PM
Representative Tomaszewski had visited Lemon Creek
Correctional Center the previous week and had spoken with
several of the inmates. He stated that inmates were very
aware of good time parole. He looked at page 4, Section 5
of the bill and stated his understanding good time was one-
third of an individual's sentence for good behavior. He
asked if there were other degrees of good time such as one-
half or one-quarter of a sentence.
Ms. Wilkerson answered in the negative. She explained that
good time was a flat one-third of an individual's sentence.
She relayed it was automatic, but an individual could lose
their good time. She deferred to Mr. Wood for additional
information.
Mr. Wood confirmed that good time was one-third [of a
sentence] by statute. There were limiting factors that
could reduce the number but nothing that could increase it.
Representative Tomaszewski looked at page 4, Section 4 that
changed the sentencing range to 7 to 11 years for the first
offense. He looked at the next line in the bill and
remarked that the second offense was 10 to 14 years, and a
third offense was 15 to 20 years. He asked if it would be
possible for an individual to receive a longer sentence for
a first offense than a second.
Ms. Wilkerson deferred the question to Mr. Skidmore.
Mr. Skidmore responded that the 7 to 11 years was a
presumptive range for a first time offense. The presumptive
range for a second felony was 10 to 14 years. He stated
that theoretically a person could receive 10 years for a
second offense and 11 years for a first offense; however,
the likelihood was very slim. He explained that during
sentencing the courts would consider previous offenses,
sentences, and conduct.
2:07:22 PM
Co-Chair Foster asked to hear a review of the fiscal note
from the Alaska Court System.
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, relayed
that the court had no position on the bill. She noted that
the decisions about classifications of offenses and
penalties resided with the legislature. She detailed that
the department had submitted a zero fiscal note. She
elaborated that sometimes when penalties increased it may
lead to more trials instead of plea bargains, but the
courts did not anticipate much of an impact from the bill.
She relayed that the provision that moved the [charge from]
manslaughter to second degree murder was rarely used over
the years.
2:08:39 PM
Co-Chair Foster asked to hear from the Public Defender
Agency.
SAMANTHA CHEROT, PUBLIC DEFENDER, PUBLIC DEFENDER AGENCY,
DEPARTMENT OF ADMINISTRATION (via teleconference),
discussed that the bill would enhance penalties for certain
drug offenses, eliminate good time for felony level
distribution of drugs, and establish a new murder charge
where a person manufactured or delivered controlled
substances and a person died as a result. She reported that
the agency would see an increase in workload. She expounded
that cases charged as high level felonies and with more
significant penalties often resulted in increased
litigation and pretrial preparation, which could include
contested sentencing and post-conviction litigation,
increasing the workload and cost for the Public Defender
Agency. She stated that such increased litigation at the
pretrial level may cause further delays. She highlighted
that individuals in pretrial status charged with drug
offenses would not have access to treatment programs while
in custody until convicted and sentenced. She elaborated
that upon release they would not have access to treatment
and reentry services as they would have when released for
good time and supervised by a probation officer while on
mandatory parole. She relayed that most often, the charged
individuals served by the agency and who would be impacted
by the bill needed treatment and reentry services to
address their addiction while in custody and once they were
out of custody and returning to their communities.
Co-Chair Foster requested a review of the agency's fiscal
note, OMB Component Number 1631.
Ms. Cherot relayed that the fiscal note primarily consisted
of personal services cost for two trial attorney positions
to be located in the agency's Anchorage and Palmer offices
due to the volume of cases in the areas, particularly
related to charged drug offenses.
Co-Chair Foster observed that the Department of Law had a
zero fiscal note, and the Public Defender Agency had a
$449,000 note.
Representative Stapp asked Ms. Cherot to repeat her
comments pertaining to reentry services and good time.
Ms. Cherot relayed that reentry services would not be
available as individuals would not be on mandatory parole
or supervised by a probation officer. She explained that
many times probation officers linked individuals to
treatment programs and other reentry services.
Representative Stapp asked if Ms. Cherot was saying that
taking away good time would mean the individuals would not
have reentry and treatment services.
Ms. Cherot confirmed that without the structure and support
systems the individuals could access the services but they
would have to do it on their own.
Representative Josephson provided a scenario where a person
was serving three years and got out in two years with good
time. He stated his understanding that DOC provided reentry
and treatment programs during the year they had been
released on good time. He asked if Ms. Cherot was saying
the individuals did not get the programs if they did not
get the one-third off from their sentence [via good time].
Ms. Cherot replied that there were two aspects involved.
She relayed that in her experience clients did not have
access to treatment programs in custody until sentenced. In
situations with enhanced penalties and cases that were less
likely to resolve, individuals were in pretrial status
longer and did not have access to services. She added that
based on earlier testimony she understood the individuals
did not have access to the services until the end of their
sentence. The individuals would then not be released on
mandatory parole because they had lost their good time,
meaning they would not have access to the supervision and
services for reentry and treatment programs. She noted the
individuals would have to access the services on their own.
Representative Josephson noted that under his example where
the individual had one year [of their sentence] suspended
[via good time] they would be on paper and would have some
connection to DOC's probation officers.
2:14:23 PM
Ms. Cherot agreed. She noted a distinction between
probation and parole. She believed one consequence of
"this" was that the individual could be less likely to opt
for a reduced sentence of active jail time with suspended
jail time that would involve probation. She explained that
the individual may be more likely to opt for a flat time
sentence because they were not going to be monitored on
parole; therefore, they may not opt to be monitored on
probation.
Representative Josephson asked if someone could get
discretionary parole, which was one-third off a sentence,
but not get mandatory parole. He found it admittedly
counterintuitive.
Ms. Cherot answered the bill would not impact discretionary
parole.
2:15:34 PM
Co-Chair Foster asked to hear from the Office of Public
Advocacy (OPA).
JAMES STINSON, DIRECTOR, OFFICE OF PUBLIC ADVOCACY,
DEPARTMENT OF ADMINISTRATION, stated that Ms. Cherot had
covered the defense perspective. He spoke to the fiscal
impact note control code RWssd, OMB Component Number 43
from OPA. The fiscal note requested one attorney IV in
Anchorage for similar reasons [to those discussed by the
Public Defender Agency]. He believed the one position would
be sufficient for the agency to meet the impact of the
legislation.
Co-Chair Johnson asked how long it took to hire an OPA
attorney position.
Mr. Stinson responded that it depended. The agency had been
fairly lucky in the latest hiring cycle. He stated that
sometimes it could be seasonal and depended on whether the
agency was hiring newly graduated law students, which was
coming up in the summer months. He elaborated that
sometimes it was possible to hire someone for an existing
position and advance them into an attorney IV slot.
Co-Chair Johnson asked about the range difference between
an attorney I and attorney IV position. She saw $181,000 in
for the position in OPA and the trial attorneys.
Mr. Stinson responded that the positions were typically
staffed as flex PCNs based on attorneys II through IV. He
explained it was an average range set. He detailed that all
of the PCNs that were not attorney Vs were flexibly
staffed. There was only one attorney I position, which was
not where attorneys started out. The attorney I position
was a bail attorney where someone did not yet need to pass
the bar exam.
2:19:33 PM
Co-Chair Johnson asked what the attorney II salary and
benefits cost. He noted that the fiscal note showed an
attorney IV position with a cost of $181,000 including
benefits.
Mr. Stinson answered that he did not have the information
on hand.
Representative Galvin considered different pieces that
helped explain the evidence based strategies to reduce drug
overdose deaths. She referenced information provided by the
Department of Health reviewing other strategies. She
appreciated that the committee had heard there were other
things that would happen aimed at reducing deaths caused by
fentanyl, which she believed was part of the governor's
goal. She stated they were looking at "this one
methodology" of working to address the drug problem in
Alaska. She wondered if a longer term incarceration
sentence would be a deterrent. She had read U.S. Department
of Justice information specifying that deterrence worked in
four ways and one of the primary ways was ensuring that
individuals who would be impacted were aware of a change
being made. She was uncertain that taking away good time
would reduce the behavior. Additionally, she wondered how
Alaskans would know that good time was no longer available
for particular offenses so that potentially deterrence
could work.
Mr. Stinson replied that he did not envy the legislature's
duty to consider overarching policy decisions. His primary
concern was ensuring that OPA was adequately resourced in
order to absorb the impact of the legislation. He was not
overly comfortable expounding further.
Ms. Cherot responded that she was not aware of any
evidence-based research demonstrating that increased
sentences would increase deterrence.
2:23:43 PM
Co-Chair Foster requested a review of the fiscal note from
the Department of Public Safety (DPS).
LISA PURINGTON, ACTING LEGISLATIVE LIAISON, DEPARTMENT OF
PUBLIC SAFETY, relayed that the DPS fiscal note was zero
(OMB component 2744).
Co-Chair Foster asked for a review of the Department of
Family and Community Services fiscal note.
DAVID FLATEN, SOCIAL SERVICES PROGRAM OFFICER, DIVISION OF
JUVENILE JUSTICE, DEPARTMENT OF FAMILY AND COMMUNITY
SERVICES (via teleconference), reviewed the department's
zero fiscal note, OMB component number 2134.
Co-Chair Foster asked Mr. Flaten to provide additional
information about the note.
Mr. Flaten replied that the crime reclassified by the
legislation was exceptionally rare as far as referrals to
the Division of Juvenile Justice and the department did not
anticipate any fiscal impact on the division.
Representative Hannan relayed that when Mr. Skidmore had
first described the bill he had detailed that there were
only five to seven cases in the past ten years that could
have fallen under the category addressed by the
legislation. She asked if any of the individuals had been
juveniles and whether Mr. Flaten had encountered many
juvenile cases where the crime involved one juvenile
delivering a drug to another.
Mr. Flaten answered the cases were exceptionally rare. The
vast majority of the drug-related crimes seen by the
division were related to cannabis use.
2:27:56 PM
Co-Chair Foster OPENED public testimony.
STACY EISERT, SELF, ANCHORAGE (via teleconference), spoke
in support of the bill. She relayed that she was testifying
on behalf of herself and her deceased son Jason. She shared
that her son had died from chemical homicide from fentanyl
poisoning at the age of 41, two years earlier. He had a
master's degree in English literature and was a high school
English teacher. She provided additional details about her
son's life. She shared that three of Jason's close friends
had died and he had struggled with the loss. He had gotten
married in 2016 and had two sons who were the apple of his
eye. His marriage had fallen apart, and he had started
self-medicating. She relayed that in March of 2021, Jason
had ingested some lethal drugs containing a deadly dose of
fentanyl. She shared the story about her son's death. She
and her husband had lost their son and Jason's children
would never know their father.
Ms. Eisert relayed that Jason had been adamant about being
and organ donor, but due to the lethal way he died, the
hospital had been unable to use his organs to save someone
else's life. She reiterated her support for the
legislation. She stated that her son's death was an act of
homicide by those persons who knowingly manufactured or
delivered the controlled substance. She shared that there
was not a prison sentence that could compare to the prison
sentence she and her husband endured daily. She underscored
the incredible pain she felt. She stated that unfortunately
their story was just one of thousands. She stressed there
must be consequences for actions so more lives would not be
lost, and families destroyed. She thanked the committee for
its time.
2:32:47 PM
NICOLE CLEARY, SELF AND SON, EAGLE RIVER (via
teleconference), testified in support of the bill. Her son
had died in October 2021 from acute fentanyl poisoning. She
shared that there had been three types of fentanyl in his
system including a nonlethal dose of pharmaceutical
fentanyl and two lethal doses of two other types. She
shared that her son had started with marijuana at a younger
age and had moved to harder drugs. He had been in and out
of jail until the two years before his death. She explained
that he had done a 90-day inpatient treatment program in
jail and was then released. Subsequent to his release he
completed a 90-day outpatient treatment program. She
provided details on her son's story. She did not have any
clue that her son had been using again. She stated that his
friend had supplied him with lethal doses of fentanyl and
had murdered him. She shared that her family had been
ripped apart. She supported the bill completely because it
would hopefully save someone from her experience in the
future. She hoped a stronger sentence would deter people
from selling fentanyl in the future. She thanked the
committee for hearing her testimony.
2:36:59 PM
KAREN MALCOLM-SMITH, PRESIDENT AND FOUNDER, DAVID DYLAN
FOUNDATION, ARIZONA (via teleconference), noted she was
also a member of the Alaska Mental Health Board, but her
testimony was personal and did not reflect the opinion of
the board. She shared that it was her son's birthday, he
had been her only child and he would have been 31 years
old. She relayed she had a stack of 2022 DEA and border
patrol interdictions, which included information about 51
million fake fentanyl pills and 13,000 pounds of true
powder enough to kill the entire U.S. and more. She
stressed it was a national and state nightmare. She
provided detail about her son's life. She stated that he
had never passed up an opportunity to help the underdog.
She shared that in 2017 her son had died from drug
poisoning. He had just returned from treatment. She
provided details leading up to her son's death. She did not
know what happened to her son. She reported that there had
been no consequences for involved individuals for the fatal
weekend that ended her son's life. She stated that as a
Christian, forgiveness was central to her values. However,
she asked how a person would be prosecuted who opened fire
at a school. She asked if they would get manslaughter and
good time. She implored the committee to vote in favor of
the legislation.
2:42:14 PM
DAR WALDEN, SELF, ANCHORAGE (via teleconference), shared
that she is the founder of the Christopher Walden House of
Hope. She relayed that her son Christopher had died of a
heroin overdose in 2019; the drug had been laced with 3.5
times the lethal dose of another substance. Her son had
been clean for five years and they would never know what
sent him into relapse. She provided details about her son's
life. She elaborated that her son had been compassionate.
He had spent many years struggling with addiction and had
been caught in the OxyContin war. She shared her son would
be 37 today. There were numerous peers who had passed away
due to oxycodone. She elaborated that when oxycodone became
too expensive, users turned to heroin. She explained that
heroin was currently deadly laced with fentanyl. She
believed six out of ten pills coming off the street at
present were laced with fentanyl. She stated that the sad
part of their situation was knowing who sold the drugs but
there was nothing they could do about it. She underscored
the need for stronger consequences. The drug dealer was now
selling drugs to others. She stressed they needed to stop
kids from dying. She supported the legislation. She stated
that if it was not stopped, the state would be facing one
of the biggest disasters of all time. She thanked the
committee.
2:46:07 PM
BOBBY DORTON, FAIRBANKS REENTRY COALITION, FAIRBANKS (via
teleconference), expressed that he was grieving with the
mothers who had shared their stories. He stated it was
impactful knowing the impact he had caused in his prior
lifestyle of selling drugs. He had served eight years in
prison and after his release he had gotten his GED and was
working as a substance abuse counselor. His current work
was on the development of substance abuse programs for
behavioral health. He would still be in prison if it were
not for good time. He shared that because of good time he
had been released early with an ankle monitor for three
years. He believed people can change if given incentives.
He was now part of the opioid taskforce. He believed people
dying senseless deaths from fentanyl poisoning was rampant
and was a problem. However, he thought Section 2 of the
bill that removed good time for people with certain felony
convictions should be removed. He would not be where he is
today if that section was in law. He is an advocate and
made a difference. He stated it was because of the
legislature's belief that people could change that he had
the opportunity to work his differences out and do good for
the community. He believed the good time incentives were
very valuable. He shared his love for the mothers who had
spoken.
2:49:40 PM
CARL KANCIR, SELF, ANCHORAGE (via teleconference), shared
that his heart went out to the women and their families who
lost their loved ones. He stated there were many problems
in Anchorage including a homelessness problem. He thought
many homeless people were too lazy to work. He supported
building a facility on Fire Island to separate the drug
users from suppliers to break addiction. He suggested
making the individuals do their own cooking, laundry, and
other instead of having the municipality and state pay for
the cost. He supported an Alaskan Alcatraz where a prison
was located out in the Aleutian chain. He elaborated on the
proposal and thought the consequences may result in people
choosing a different occupation. He stated it sounded
cruel, but he had grandchildren and great grandchildren in
Alaska and did not want to see their lives wasted because
of people selling drugs. He believed it was necessary to
get cruel with drug dealers because they were killing
people just as if they shot someone with a gun.
Co-Chair Foster CLOSED public testimony.
Co-Chair Foster relayed amendments to the bill were due by
Wednesday, May 3 at 5:00 p.m.
HB 66 was HEARD and HELD in committee for further
consideration.
HOUSE BILL NO. 28
"An Act restricting the release of certain records of
convictions; and providing for an effective date."
2:54:18 PM
Co-Chair Foster asked for a brief recap of the bill.
REPRESENTATIVE STANLEY WRIGHT, SPONSOR, introduced himself.
ALLAN RIORDAN-RANDALL, STAFF, REPRESENTATIVE WRIGHT,
briefly described the bill. The legislation aimed to reduce
barriers for individuals with low level marijuana
possession charges in two parts. First, the bill would
remove the information from any Department of Public Safety
(DPS) background checks. Second, the bill would prevent the
court system from adding any information regarding such
charges onto its public website. He relayed that the court
system had already removed any of the charges that fell
under the category and the specific section of the bill had
been removed.
Co-Chair Foster asked the court system to review its fiscal
note.
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, relayed
that the court system already did exactly what the bill
called for in Section 4. The section was not necessary
because the court had taken the action of amending its own
rules about what went on the public version of CourtView.
She had just received the message that the cases under the
specific category had been removed earlier in the day. The
court system's fiscal note was zero because the bill did
not require it to do anything that had not already been
done. She stated it was the court's position that since the
court had already done on its own volition what Section 4
sought to accomplish, the section was unnecessary.
Representative Tomaszewski asked for clarity on Ms. Mead's
statements about the related actions taken by the court.
Ms. Mead replied that the court passed a rule amendment
that it had signed about two months back to accomplish
exactly what the bill called for. The court had a rule
about what did and did not appear on the public version of
CourtView and had many categories. She elaborated that in
February the court system had amended the rule to take more
and more cases off of the public version of CourtView and
had signed an order with an effective date of May 1 to
remove all of the old marijuana possession cases for people
over 21 with no other convictions in the case.
2:58:44 PM
Representative Tomaszewski asked if there was anything
stopping the court system from changing the rules back.
Ms. Mead noted that she believed the supreme court order
that accomplished the rule change was included in members'
bill packets (supreme court order (SCO) 2001). She answered
that the court could theoretically reverse itself, but it
had never happened. She stated there was a zero percent
chance of a reversal taking place, especially because the
trend was to remove cases from CourtView and never to add
cases to CourtView in recognition of some of the public
concerns about what appeared there. The category addressed
by the legislation pertained to cases that by definition
were resolved prior to legalization in 2015 (or the offense
occurred prior to legalization). She reiterated there was a
zero percent chance that the court would want to
republicize what happened in the old cases. She relayed
that the court considered the action it had taken as a
cleanup.
Representative Tomaszewski asked if the court had an
objection to the bill.
Ms. Mead answered that the action could be done via
statute; however, the court believed it was unnecessary.
She elaborated that the court maintained items on CourtView
according to what it thought was appropriate. She explained
that CourtView was the court system's own website and case
management system. There was a recognition that the public
used the website for things other than managing cases. For
example, people used the website to find out information
about people's past convictions. The court preferred to
make its own rules about what appeared on its website under
a general separation of powers doctrine. However, in the
past, the legislature had told the court via statute to
remove a category or two of cases from CourtView. The court
system had done so and there had been no objection. She
relayed that the court system was not opposing the bill.
3:01:36 PM
Representative Josephson thought Ms. Mead had stated there
were more than 12 or so infractions, charges, or
convictions that already did not show up on CourtView. He
asked if his understanding was correct.
Ms. Mead agreed. She elaborated that the topic addressed by
the bill was the 15th subsection and category of cases
removed from CourtView under the court's Administrative
Rule 40A.
Representative Josephson asked if the court system could
get rid of CourtView altogether if it chose to do so.
Ms. Mead replied affirmatively.
Representative Josephson asked what Ms. Mead would have
said if he had asked her five years ago whether she
anticipated all of the legislative hearings on CourtView.
Ms. Mead replied that she did not know what she would have
said, but she did not anticipate that CourtView would
become such a topic in the building.
Representative Josephson stated that he was likely to
support the bill. He asked for verification that if someone
possessed marijuana and had significant criminal charges
that were dismissed, there would be no way for the public
to see the information in CourtView. He stated his
understanding that charges were not sufficient and a
conviction would be necessary for the conviction
information to remain on CourtView.
3:03:40 PM
Ms. Mead clarified that the bill and the court system's
rule, which were exactly the same, removed marijuana
possession convictions. They were not looking at what was
originally charged or at other charges. She explained that
cases that were fully dismissed were a category that the
legislature had told the court system to remove from
CourtView. She elaborated that any criminal case whether it
was murder, drugs, or assault, that ended with a full
dismissal and/or acquittal, came off of CourtView because
of a statute.
Representative Josephson explained that he had not been
talking about marijuana convictions. He clarified that he
was talking about second, third, and fourth charges. He
stated his understanding that cases resulting in an
acquittal or dismissal were already gone from CourtView. He
asked for verification that the bill would not remove or
delete more charges in that respect.
Ms. Mead agreed. She confirmed that a case that ended in
full dismissal, full acquittal, at a plea bargain was
already removed from CourtView under the legislature's
statute. She stated that the bill removed convictions.
Representative Hannan remarked that the court undertook the
removal of convictions once state law had changed and the
crimes were no longer crimes under state law. She clarified
she was speaking about low level cannabis possession
convictions by people over the age of 21 that were no
longer crimes as of 2015. She surmised that the court
system did not merely arbitrarily look at categories of
crimes and remove them from CourtView.
Ms. Mead confirmed that the court recognized the conduct
was legal and along with the passage of time that the value
of having the information on CourtView was no longer as
strong as the possible consequences of having the cases on
CourtView. She stated that perhaps in 2016 or 2017 it was
not as true because the conduct was more recent, but by
2023, eight years after legalization, it was the supreme
court's conclusion that having the cases on CourtView was
no longer a strong enough public benefit in comparison to
the possible consequences. She clarified that the other
categories of things that did not appear on CourtView the
statute said dismissed cases were cases where the value
of having the public know about them was generally
outweighed by the detriment to the person whose name was on
the website. One of the biggest categories was domestic
violence protective orders that someone filed. She
explained that they would go on CourtView, but if the court
denied a short-term or long-term order and there was no
probable cause, the item would not go on CourtView. She
summarized that all of the other categories were ones where
it could be harmful to a person and having their name on
the website was not beneficial.
3:07:45 PM
Representative Josephson stated there were about 2,500
attorneys in Alaska and his last practice had been family
law about nine years back and related to things like
restraining orders. He added that he had been in court
constantly. He explained that people would pay a good
amount of money to represent them zealously. One of the
things that he had done was to find out nearly everything
about the other party. The beauty of CourtView was the
ability to find easily accessible, free information that
did not require deposing someone. He had been able to go to
the courthouse and pull 10 to 20 files. He stated that
given the bill and previous reforms, if someone was trying
to zealously represent a client, it would get more and more
challenging for them to know they had the complete body of
evidence on an opposing party. He stated that an attorney
may want to go to the troopers to see if they had
additional information or get a court order.
Ms. Mead answered that under the supreme court order
directing the court system to remove the cases, the cases
were removed from the public version of CourtView. She
remarked that an attorney could go back to what existed
prior to CourtView and walk into a courthouse. She added
that the 15 categories under the court's administrative
rule were unpublished. She explained that the information
was not on the public version of CourtView, but it was not
confidential. She elaborated that a person could walk into
a courthouse and go to a public kiosk to view all of
CourtView with the exception of truly confidential cases.
She stated that if a person cared a lot they could walk
into a courthouse and use the kiosk to find out more about
individuals than they could from their living room.
3:10:38 PM
Co-Chair Foster asked for a review of the DPS fiscal note.
LISA PURINGTON, CRIMINAL RECORDS AND IDENTIFICATION BUREAU
CHIEF, DEPARTMENT OF PUBLIC SAFETY, reviewed the
department's fiscal impact note, OMB Component Number 3200.
She relayed that based on amendments made in the House
Judiciary Committee that added a fee of up to $150 for
individuals requesting that records be limited from
dissemination in certain background checks under AS
12.62.160(b)(8), the department revised its fiscal note to
reflect the costs that would ideally be covered by program
receipts generated by fees charged. She explained that
because it was unknown how many individuals would come
forward to request that the records be restricted from
dissemination, the department had only projected a cost out
for two years. The first year cost was $180,100 for
programming costs of $56,000. She elaborated that DPS
maintained the state's criminal history repository, which
was separate from the database managed by the court system.
She expounded that the database was on a mainframe system
and DPS would need to contract out the costs to have
programming put in place to prevent the records from being
disseminated when the department received background check
requests. The additional cost in year one would be for
temporary funding for one full-time criminal justice
technician to research the records.
Ms. Purington noted that the bill applied to up to one
ounce of marijuana for individuals who were over the age of
21 at the time the offense was committed. She stated that
unfortunately the state criminal history repository did not
always list the age of the individual, which would require
DPS to conduct research to ensure the age of offense was
within the scope of the legislation. Additionally, the
department would have to research the dispositions that did
not always have the underlying subsections, which would
clearly identify the conviction was for under one ounce of
marijuana. She explained that more recent convictions would
be fairly easy to do, but older convictions would take a
bit of time. The second-year cost was $114,700 for the
full-time position. The department anticipated the costs in
years one and two to be offset and funded through program
receipts generated by the individuals paying the $150 fee
for the requests.
Representative Stapp referenced the amendment [made to the
bill in the House Judiciary Committee] charging a fee of up
to $150 per request. He asked if it changed the way DPS
removed the convictions and meant the department would not
remove convictions until requested by individuals. He asked
if it would extend the payment timeframe to perpetuity
instead of removing all of the records at one time.
Ms. Purington responded that the change in the fee
structure would result in a fee being collected by the
department. She explained that the programming would have
to be done regardless to prevent the records from being
disseminated as requested and outlined in the bill. The
department would still need to hire a full-time position if
there were more than one or two requests coming in. She
reiterated her earlier testimony that some of the requests
would require research, while others would be easier.
Representative Stapp understood the software identification
costs were fixed and would not change. He thought that in
theory, once identified, the department should have the
ability to remove all of the convictions meeting the
criteria in a given amount of time. He believed the
department would be able to sunset the position after that
point. However, he reasoned that under a fee for service
model, the department would need to have the position on
payroll in perpetuity because the department did not know
the number of years in the future that people would make
the requests. He asked if his assessment was fair.
3:16:32 PM
Ms. Purington responded yes, but the department anticipated
the bulk of the requests to be in the first two years. She
agreed that subsequent years were unknown, and the
department had not been comfortable projecting farther out.
Representative Stapp stated he thought the position should
be a long-term non-permanent position that sunset after a
couple of years. He asked if the position would continue in
perpetuity.
Ms. Purington answered that ideally, if the position was
not addressing individuals' concerns full-time, their
remaining time could be spent researching the records. She
agreed that programmatically, the department could look at
the existing statutes that clearly identify the people
convicted of possession of under one ounce of marijuana
when over the age of 21 at the time of the offense. She
relayed that unfortunately some of the convictions in the
system only had a four-digit offense code identifying that
a conviction was for marijuana; therefore, it would need to
be researched. She explained that it was not possible to
universally clear out the database for all of the
qualifying convictions.
Representative Tomaszewski thought there was some confusion
about the fee. He pointed to language on page 3, lines 5
through 6 of the bill: "pays a fee established by the
agency in regulation in an amount that is not less than
$150." He observed that $150 was the minimum price and
there was no maximum. He asked if his understanding was
accurate.
Ms. Purington agreed. She relayed that the fiscal note
included a baseline of $150.
Representative Josephson asked if the department believed
it had fiscal receipt authority or that the funds would go
to the general fund.
Ms. Purington answered the department believed it had the
receipt authority based on its existing legislative
authority to take receipts for background checks in
general. The department thought the receipts that would be
generated under the bill fell under the same scope.
Representative Coulombe asked if there would be a $150
charge for the removal of each conviction or per person.
Ms. Purington answered that the department viewed the
language to mean per conviction. She elaborated that the
numbers added up as the department looked at convictions.
There were some individuals who would have multiple
convictions that fell within the scope of the bill.
Representative Coulombe stated her understanding that it
would be a minimum fee of $450 if someone had three
convictions they wanted to clear.
Ms. Purington answered that was the way the department
viewed the bill language. She relayed the department would
look at the numbers to see how many individuals fell
withing the scope of the bill and would then determine
whether it would do it on a per individual basis rather
than a per conviction basis. She agreed the fee seemed
excessive for individuals with multiple convictions.
Representative Coulombe stated there was a difference
between CourtView and what DPS did. She detailed that
CourtView was a public facing website whereas DPS would be
removing convictions that would show up on a background
check.
Ms. Purington agreed. She explained that CourtView was the
court system's records management system. The state's
criminal history repository [under DPS] was the state's
official record and was the central registry for all
criminal convictions. She elaborated that by statute
individuals often had to have a particular statutory
authority for a background check for certain positions or
requirements. She shared that it was called an "any person
report" meaning any person was entitled to the report. She
expounded that the background checks authorized under AS
12.62.160(b)(8) were already somewhat limited because they
did not display non-conviction information. She noted that
if a person had their charges dismissed or they were found
not guilty, the information would not display on the
record. Additionally, arrests that were over 12 months old
without a disposition were also not displayed on the
record. She remarked that it was different than the
background checks authorized under other statutes. For
example, the information would not be redacted when dealing
with children and vulnerable adults.
Representative Hannan asked if there were any other crimes
or former crimes that did not show up in a person's
criminal background check after paying a fee.
Ms. Purington replied in the negative.
Representative Hannan provided a scenario where twin
brothers were convicted of the same crime on the same day
and both needed background checks. She elaborated that one
of the brothers paid a fee to have and appeared to have not
been convicted, while the other brother did not pay the fee
and his background check showed the conviction, meaning he
was ineligible to apply for the State Trooper Academy.
Under the scenario, one brother was eligible to enter the
academy, while the other brother was not. She asked if it
seemed incongruent with the systems Ms. Purington generally
worked with.
Ms. Purington answered that it would be different than most
of the background checks processes followed by the
department.
3:24:29 PM
Co-Chair Foster OPENED public testimony.
DAVID MORGAN, GOVERNMENT AFFAIRS ASSOCIATE, REASON
FOUNDATION, ATLANTA (via teleconference), stated that eight
years after legalization, many Alaskans still had criminal
records for low level marijuana possession. He stated that
a one size fits all approach of lifelong criminal records
did not make sense, especially considering that marijuana
possession was no longer considered a crime in Alaska. He
elaborated that nearly 90 percent of employers nationwide
conducted background checks on job applicants and research
suggested that applicants with criminal convictions were 50
percent less likely to receive a callback. He stated that
to the extent that low level marijuana possession
conviction records acted as a barrier to employment and
made it harder for people to stay on the right side of the
law, the relief provided under the bill would promote
public safety while saving taxpayer dollars. He thanked the
committee for its time and consideration.
Co-Chair Foster CLOSED public testimony.
Co-Chair Foster relayed amendments to the bill were due by
Wednesday at 5:00 p.m.
HB 28 was HEARD and HELD in committee for further
consideration.
Co-Chair Foster reviewed the schedule for the following
morning.
ADJOURNMENT
3:27:52 PM
The meeting was adjourned at 3:27 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 28 Supporting Document JUD 050123.pdf |
HFIN 5/1/2023 1:30:00 PM |
HB 28 |