Legislature(2019 - 2020)GRUENBERG 120
03/25/2019 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB49 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 49 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 25, 2019
1:04 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Gabrielle LeDoux, Vice Chair
Representative Chuck Kopp
Representative Louise Stutes
Representative Adam Wool
Representative Laddie Shaw
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 49
"An Act relating to criminal law and procedure; relating to
controlled substances; relating to probation; relating to
sentencing; relating to reports of involuntary commitment;
amending Rule 6, Alaska Rules of Criminal Procedure; and
providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 49
SHORT TITLE: CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/20/19 (H) READ THE FIRST TIME - REFERRALS
02/20/19 (H) JUD, FIN
03/22/19 (H) JUD AT 1:30 PM GRUENBERG 120
03/22/19 (H) Heard & Held
03/22/19 (H) MINUTE(JUD)
03/25/19 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
ROB HENDERSON, Deputy Attorney General
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Introduced HB 49 on behalf of Governor
Dunleavy, the prime sponsor.
ACTION NARRATIVE
1:04:16 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:04 p.m. Representatives Eastman, Stutes,
Shaw, Kopp, Wool, LeDoux, and Claman were present at the call to
order.
HB 49-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
1:04:56 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 49 "An Act relating to criminal law and
procedure; relating to controlled substances; relating to
probation; relating to sentencing; relating to reports of
involuntary commitment; amending Rule 6, Alaska Rules of
Criminal Procedure; and providing for an effective date."
1:05:28 PM
ROB HENDERSON, Deputy Attorney General, Criminal Division,
Department of Law (DOL) said the overarching theme of HB 49 is
the restoration of discretionary options to law enforcement,
prosecutors, and judges for the purpose of addressing criminal
behavior. He stressed that no two offenders are the same, no
two circumstances are the same, and no two crimes are the same.
He said judges and prosecutors need options to address each case
individually and to fashion a sentence that is unique to the
offender.
MR. HENDERSON said HB 49 would return drug crime sentencing laws
to what they were before 2016. In 2016, he explained, a tiered
system was enacted that effectively lowered most drug
trafficking penalties, including the amount of incarceration
that can be imposed for drug trafficking. He said these changes
hampered efforts to combat drug trafficking in Alaska.
MR. HENDERSON offered an example to illustrate this point. He
said that, before 2016, a person trafficking 5 grams of heroin
about 50 individual doses was guilty of a class A felony
offense subject to a sentencing range of 5 to 8 years, assuming
no prior criminal history. Now, he said, that same person would
be guilty of a class B felony offense subject to a sentencing
range of 0 to 2 years.
1:08:50 PM
MR. HENDERSON said that, prior to 2016, the amount of drugs
someone was dealing was just one factor used to determine the
severity of the offense. Now, he explained, the tiered system
makes the amount of drugs the central focus. He listed other
factors used prior to 2016: the manner of trafficking, the
commercial value of the drug, and the availability of the drug
in the community. He clarified that 5 grams of heroin in
Kotzebue is very different from 5 grams of heroin in Anchorage.
He said that, prior to 2016, the court would consider all these
factors when imposing an appropriate sentence. Now, he said,
the amount of drugs a person has when he/she is arrested for
trafficking is the primary factor for determining whether the
crime is a class B or class C felony.
MR. HENDERSON said if a person today is arrested for trafficking
under 1 gram of heroin or under 2.5 grams of a Schedule II or
IIIA controlled substance, like methamphetamine or cocaine, that
person is guilty of a class C felony offense. If the amount of
heroin is over 1 gram or the amount of the Schedule II or IIIA
controlled substance is over 2.5 grams, that person is guilty of
a class B felony. He said HB 49 would return drug
classification and sentencing schemes to pre-2016 levels.
1:11:20 PM
MR. HENDERSON said HB 49 would also revert possession of the
most serious drugs like heroin, cocaine, fentanyl, carfentanil,
and methamphetamine to a class C felony offense. He explained
that changes made in 2016 rendered possession of most drugs a
misdemeanor offense. Those changes, he noted, also prohibit
active jail time until the third offense. He said this means a
person convicted of possessing heroin for the first time now
faces a maximum sentence of 90 days with 90 days suspended, so
no active incarceration. He said a second offense nets a 180-
day sentence with 180 days suspended. It is not until the third
offense, he said, that active incarceration is permitted.
MR. HENDERSON stated that the 2016 sentencing changes had two
impacts. The first, he said, was a deprioritizing of
enforcement and prosecution for drug trafficking and drug
possession. He noted that law enforcement and prosecutors
always prioritize felonies over misdemeanors and violent cases
over nonviolent cases. He said that when drug possession was
reclassified to a misdemeanor offense, it became less of a
prosecutorial priority. As a result, he said, felony drug
possession dropped approximately 70 percent from 2015 to 2017.
He said the Department of Public Safety (DPS) describes this
phenomenon as institutional inertia He said returning to the
pre-2016 drug classification and sentencing scheme would restore
priority, which he described as "important given the drug
epidemic we're seeing across the state."
1:15:03 PM
REPRESENTATIVE WOOL asked for Mr. Henderson to repeat what
dropped between 2015 and 2017.
MR. HENDERSON answered that felony drug prosecutions dropped
approximately 70% between 2015 and 2017.
REPRESENTATIVE WOOL noted that the pre-2016 laws were in effect
when the drop began in 2015. He posited that the decrease in
felony prosecutions is not attributable to changes in
sentencing.
MR. HENDERSON said he does attribute the decrease to statutory
changes. He said that DOL prosecuted approximately 900 felony
drug cases in 2016 but only about 320 in 2017.
REPRESENTATIVE WOOL suggested that it is reasonable to expect
felony drug prosecutions to decrease when crimes that were
previously felonies get reclassified.
MR. HENDERSON said that is correct. He reported that
misdemeanor drug prosecutions have not increased, but rather
decreased. He said DOL prosecuted 750 misdemeanor drug cases in
2015, approximately 180 in 2016, and then approximately 500 in
2007. He stressed that the priorities of law enforcement and
prosecution have been refocused on offenses outside of drug
trafficking and drug possession.
1:18:12 PM
REPRESENTATIVE LEDOUX asked why it is deemed necessary to return
to pre-2016 laws rather than simply instructing DOL to prosecute
more drug cases.
MR. HENDERSON said DOL only prosecutes the cases that are
referred to it. Thus, he said, if law enforcement has
deprioritized those investigations, that impacts referrals which
in turn decreases prosecutions.
REPRESENTATIVE LEDOUX asked why the Office of the Attorney
General cannot work with law enforcement to prioritize drug
crimes, even if they are just misdemeanors.
MR. HENDERSON said the attorney general could do that. He
stressed that DOL prioritizes cases because its resources are
limited. He said if the legislature reclassifies a crime as a
misdemeanor, it sends a message that the crime is not as
important as a felony. He said felonies should take priority as
they are more serious crimes.
REPRESENTATIVE LEDOUX asked if DOL, since it is working with
limited resources, would have to deprioritize prosecuting
violent crimes to allow for more drug possession prosecutions.
MR. HENDERSON referred to the attached fiscal note. He said it
anticipates an increased number of drug cases referred to DOL.
REPRESENTATIVE LEDOUX hypothesized that, with the same fiscal
note and same money, DOL could just add three to five new
prosecutors to handle drug possession cases without the
sentencing law having to be changed.
MR. HENDERSON answered "hypothetically ... yes," assuming law
enforcement reprioritized drug cases and the number of referrals
to DOL returns to pre-2016 levels.
CHAIR CLAMAN mentioned that the House Law Finance Subcommittee
supported the addition of five prosecutors.
1:23:04 PM
REPRESENTATIVE WOOL asked for the justification - except to
increase conviction numbers - for making simple drug possession
a felony?
MR. HENDERSON said there are two reasons. The first, he
explained, is that the current sentencing scheme does not
incentivize offenders to engage in treatment. He stressed the
importance of treatment and rehabilitation. He said the pre-
2016 sentencing scheme allowed DOL to offer a suspended
imposition of sentence in exchange for an offender engaging in
drug treatment. He noted that HB 49 would not do away with a
tool created in 2016 that allows DOL to offer suspended entry of
judgment, which means that an offender who completes his/her
terms of probation has his/her case dismissed. He said DOL
wants to encourage individuals to engage in treatment and
incentivize them against continuing their drug-related behavior.
He stressed that, regardless of whether the amount of drugs is
small, the impact that those drugs have on Alaska's communities
is real and significant.
MR. HENDERSON said the second justification is the criminal
activity associated with drug possession. He spoke to data
linking drug use to other crimes. He said if DOL can intervene
with a drug possessor, it might prevent a second intervention
for another different criminal act.
1:26:52 PM
REPRESENTATIVE WOOL asked Mr. Henderson to clarify his claim
that 5 grams of heroin in Anchorage is different from 5 grams of
heroin in Kotzebue.
MR. HENDERSON pointed to the impact of those drugs on the
community. He said 5 grams of heroin affects more people in a
small community like Kotzebue than it does in a city like
Anchorage.
1:27:49 PM
REPRESENTATIVE EASTMAN asked if prosecutors have seen any change
in violent crimes since the passage of Senate Bill 91 [passed in
the Twenty-Ninth Alaska State Legislature]. He asked how that
change or lack thereof impacts proposed sentencing reforms.
MR. HENDERSON said he thinks everybody in the state has seen an
increase in violent acts. He referred to DPS data that
indicates the overall crime rate is up 25 percent over the last
five years. He said the violent crime rate is up approximately
34 percent and the property crime rate is up approximately 22
percent.
CHAIR CLAMAN asked him to clarify the time range for that data.
MR. HENDERSON said he believes the trend is from 2017 going back
five years.
CHAIR CLAMAN clarified that this means the dataset begins with
2012.
1:29:22 PM
REPRESENTATIVE EASTMAN addressed Mr. Henderson's point about DOL
prosecuting fewer drug crimes than before. He asked if
prosecutors have noticed any change in incidences of drug
crimes.
MR. HENDERSON answered, "The prosecution numbers generally track
the [Uniform Crime Reporting] (UCR) numbers." He said,
generally speaking, the largest increases across the state have
been in violent crimes. He said felony assault prosecutions and
robbery prosecutions are increasing, and that is consistent with
DPS crime data.
1:30:48 PM
REPRESENTATIVE EASTMAN remarked that law enforcement, when it
decides which crimes to investigate, must take into
consideration both the less severe penalties for drug crimes and
the increase in violent crimes. He asked if that is correct.
MR. HENDERSON said, "That is accurate. He restated that the
Criminal Division always prioritizes violent crimes over
nonviolent crimes.
1:32:17 PM
REPRESENTATIVE LEDOUX, asked Mr. Henderson to further clarify
his claim that 5 grams of heroin impacts more people in a place
like Utqiagvik than it does in a city like Anchorage. She asked
if he meant that the drugs impact a larger percentage of the
population rather than a higher number of people.
MR. HENDERSON responded that drugs impact "a higher percentage
per capita" in smaller communities. He recommended the
committee discuss with DPS the distribution and trafficking of
heroin in small communities.
1:34:03 PM
REPRESENTATIVE WOOL said the committee was previously presented
crime statistics that found no correlation or causation between
drug crime and other types of crime. He asked Mr. Henderson to
speak to that.
MR. HENDERSON answered that he believes there is a correlation
between the use of synthetic opioids and the overall crime rate.
1:35:35 PM
CHAIR CLAMAN asked Mr. Henderson to confirm that felony drug
prosecutions are down but overall felony prosecutions are up,
which means violent crimes make up a higher percentage of felony
prosecutions.
MR. HENDERSON answered that is correct.
1:36:02 PM
REPRESENTATIVE EASTMAN asked if the reasoning for imposing
higher sentences for drug crimes in smaller communities is
because those communities are not used to dealing with harder
drugs such as cocaine. He compared this to an alcohol crime
occurring in a dry community.
CHAIR CLAMAN asked Representative Eastman to revisit the
question later. He requested that Mr. Henderson continue his
presentation.
1:37:13 PM
MR. HENDERSON said Representative Eastman's comments provide a
segue to the overall sentencing scheme and how HB 49 would
return it to pre-2016 levels. He said the reason for this
reversion is because individual offenses and individual
offenders affect different communities differently. He said HB
49 would increase the discretion of prosecutors and judges to
account for various factors when imposing or fashioning a
sentence. He said these concepts include community
condemnation, reaffirmation of societal norms, seriousness of
the offense, and the rights of the victim. He said returning to
the pre-2016 sentencing scheme would allow for the imposition of
greater sentences, when appropriate, in a community like
Utqiagvik or Kotzebue. He noted that a judge who lives in and
is a part of a tight-knit community would know how the
circumstances of a particular offense impacts the community.
1:39:40 PM
MR. HENDERSON said that in 2016 the legislature lowered
sentences for most felony offenses. He referred the committee
to a document included in the committee packet titled "HB 49
Classification and Sentencing Highlights." He pointed to a
table on page 1 of that document displaying the changes in
felony sentences that would occur should HB 49 become law. He
said the presumptive range of most felony sentences would be
elevated by approximately one to two years depending on the
classification and the offender's criminal history. He
explained that Alaska law sets forth a sentencing range for
felony offenses that takes into account whether the felony is a
class A, B, or C felony, as well as the offender's criminal
record. He said HB 49 would return the presumptive ranges to
pre-2016 levels.
MR. HENDERSON said HB 49 would return the presumptive sentencing
range for class A misdemeanors to 0 to 365 days, giving
discretion to the judge for fashioning the sentence. He noted
that the current presumed sentence for a class A misdemeanor is
30 days. For class B misdemeanors, he said, HB 49 would
increase the current presumptive range of 0 to 10 to 0 to 90
days.
1:42:57 PM
MR. HENDERSON addressed aspects of HB 49 that are unrelated to
changes made in 2016. He said HB 49 would create a generalized
terroristic threatening statute to address circumstances when a
person makes a real threat as opposed to a false threat. He
explained that, under current law, the terroristic threatening
statute requires the threat be false before it is a criminal
offense.
MR. HENDERSON said HB 49 would also expand the use of the Alaska
Public Safety Information Network (APSIN), which he said can be
thought of as a "rap sheet," for use in a grand jury setting
when it is necessary to prove the existence of a prior
conviction as an element of the offense.
1:45:00 PM
MR. HENDERSON addressed sections 3 through 18 of HB 49. He said
these sections would repeal the automatic inflation adjustment
provision for Alaska's theft statutes. He explained that, under
current law, the amount stolen is an element of the offense. He
said a person is guilty of second-degree theft if he/she steals
more than $750 of property. In 2016, he explained, the
legislature created a system that automatically increases that
amount every five years as calculated by the rate of inflation.
He said this system goes into effect in 2020 and that the
authority to calculate the inflation adjustment was delegated to
the Alaska Judicial Council (AJC).
MR. HENDERSON said the first reason these provisions should be
repealed is because DOL feels the delegation to AJC was an
improper delegation from the legislature to the judicial branch,
of which AJC is a part. He said the legislature is entitled to
delegate certain authority to the executive branch, but there
is a concern that by delegating to the judicial branch, that
delegation would be ineffective. He said the second reason for
the repeal is based on the public debate of Senate Bill 54
(passed in the Thirtieth Alaska State Legislature) in the fall
of 2017. He said that during that process, the legislature and
governor experienced significant debate from the public as to
what the threshold amount should be. He said Senate Bill 54
lowered the felony threshold from $1,000 to $750. He said that
process, informed by public input, was important. He stated
that the automatic inflation adjustment removes public debate
from the process.
CHAIR CLAMAN asked for confirmation that Senate Bill 91
increased the felony theft threshold from $500 to $1,000 and
added the inflation adjustment, and that Senate Bill 54 moved
that amount from $1,000 to $750 and kept the inflation
adjustment in place.
MR. HENDERSON answered correct.
1:49:06 PM
MR. HENDERSON addressed sections 19 and 20, which he said would
change the crimes of escape in the second degree and escape in
the third degree. He said these changes would increase the use
of electronic monitoring by the courts and the Department of
Corrections (DOC). He said that, under current law, if an
offender is put on electronic monitoring by DOC for a felony
offense and that device is tampered with, it is a class B
felony. He said HB 49 would fix an identified gap by including
the [Division of Juvenile Justice] in the law. He said these
sections would also make it a class C felony for someone on
release for a misdemeanor to tamper with an electronic
monitoring device. He said that, under current law, that same
offense is a misdemeanor. He said HB 49 would also add
tampering with an electronic monitoring device while on release
on bail to the list of criminal conduct. He said there is
currently no provision in the escape statutes that addresses
that conduct. He clarified that it would be a violation of
conditions of release (VCOR) but would not fall under the escape
provision.
1:51:28 PM
CHAIR CLAMAN noted that many parts of the criminal code feature
some degree of proportionality. He explained that VCOR is a
misdemeanor offense when released on a misdemeanor and can be a
felony offense when released on a felony. He said there are
other parts of the criminal code for which the category of a new
crime is dependent on the category of the crime for which the
offender was under release. He asked why DOL perceives it
necessary to make it a felony to tamper with an electronic
monitoring device when on release for a misdemeanor.
MR. HENDERSON said DOL's goals are to create a system in which
DOC feels confident in using electronic monitoring in
appropriate circumstances and to create a significant
disincentive for an offender who would tamper with or disable a
monitoring device. He said elevating the offense to a class C
felony would pair the benefit of being released on electronic
monitoring with a significant deterrent for manipulating or
tampering with the monitoring device.
1:53:08 PM
REPRESENTATIVE KOPP recalled his past experience arresting drunk
drivers and the occasions during which a handcuffed driver would
struggle and escape. He said those drivers were under arrest
for a class A misdemeanor - driving under the influence (DUI)
and upon recapture would also be charged with escape, a class C
felony. He asked if this is still the case and whether HB 49
would change that.
MR. HENDERSON said Representative Kopp is correct. He referred
to an Alaska Court of Appeals opinion that describes that
dynamic. He conceded that he does not remember the exact
details but offered to get that information to the committee.
REPRESENTATIVE KOPP noted that he just wanted to verify that the
current law stipulates that someone who escapes while under
detention for a misdemeanor can be charged with a class C
felony.
MR. HENDERSON said that is how he remembers it. He restated
that he could follow up with the committee.
1:55:20 PM
MR. HENDERSON highlighted sections 21 and 22, which he said
relate to the crime of failure to appear. He explained that,
under current law, a person who fails to appear for a hearing is
guilty of a violation punishable by a $1,000 fine unless the
person absconds for more than 30 days. He added that a person
is only guilty of failure to appear if he/she fails to make
contact with the court after 30 days, or he/she avoids the
hearing with the intent to avoid prosecution. He said HB 49
would eliminate the 30-day "grace period" and return to the pre-
2016 law. That means, he said, a person would be guilty of a
felony if he/she, on release for a felony, fails to appear after
ordered to by the court. Likewise, he explained, a person on
release for a misdemeanor who fails to appear would be guilty of
a misdemeanor.
MR. HENDERSON said HB 49 would maintain the "affirmative defense
of unforeseen circumstances exception," which he explained is a
pre-2016 provision that remains law. He explained that this
means a person is not held criminally liable for failing to
appear at a hearing if unforeseen circumstances prevented
him/her from appearing and he/she contacted the court
immediately about said circumstances. He said, pre-2016, the
offender had to prove that he/she took steps to notify the court
about the unforeseen circumstances. He noted that it is
currently DOL's burden to prove beyond a reasonable doubt that a
person did not make contact, which he said is very difficult as
it is "essentially proving a negative." He noted that this has
resulted in a substantial decrease in prosecutions for failure
to appear.
1:58:15 PM
MR. HENDERSON addressed section 23, which he said would return
the crime of VCOR to how it was pre-2016. He explained that
this means VCOR when released on a felony would be a class A
misdemeanor and VCOR when released on a misdemeanor would be a
class B misdemeanor. He said, under current law, the punishment
for VCOR is limited to five days incarceration. He said the
changes proposed in section 23 combined with the proposed
changes to the overall sentencing scheme would return discretion
to the court by allowing it to fashion a sentence from a range
of 0 to 365 days in jail.
2:00:01 PM
MR. HENDERSON addressed sections 24 through 26, which he said
would create and clarify the crime of failing to provide a DNA
sample when arrested for a qualifying offense. He explained
that, under current law, if a person is arrested for a
qualifying offense - a crime against a person, a felony DUI, or
any felony under AS 11 - the person is required to submit a DNA
sample upon arrest. He said that DNA sample is then put into
the Combined DNA Index System (CODIS), which he described as an
investigative tool used by law enforcement. He said failing to
provide a DNA sample upon arrest is not currently a criminal
act. He noted that refusing to provide a DNA sample upon
conviction is a class C felony. He said HB 49 would create a
class A misdemeanor for situations in which a person arrested
for a qualifying offense refuses to provide a DNA sample upon
arrest.
2:01:50 PM
CHAIR CLAMAN asked about the constitutionality of requiring DNA
samples in a pre-sentence context from people who are presumed
innocent.
MR. HENDERSON said the Supreme Court of the United States
(SCOTUS) has addressed the issue and found that seizure of DNA
upon arrest after finding probable cause is constitutional under
the Fourth Amendment [of the United States Constitution] and is
permissible.
CHAIR CLAMAN asked whether the Alaska Supreme Court or the
Alaska Court of Appeals has addressed the issue in the context
of the Alaska Constitution, which he said may provide greater
protections than the United States Constitution.
MR. HENDERSON said, "They have addressed the former version of
this statute and have suggested that it would be
constitutional." He added, hey have not analyzed the current
language of the statute." He stated that, given the language
and analysis of SCOTUS, he believes the Alaska Supreme Court and
the Alaska Court of Appeals would "uphold this and not found it
a violation of someone's search and seizure constitutional
rights."
CHAIR CLAMAN asked for verification that the Alaska Court System
has determined that compulsory post-sentence DNA samples pass
constitutional muster, but whether compulsory pre-sentence DNA
samples do remains an open question.
MR. HENDERSON answered that is correct. He restated his belief
that compulsory pre-sentence DNA samples would be upheld as
constitutional.
2:04:20 PM
REPRESENTATIVE LEDOUX asked whether the DNA sample provision is
totally new or is a return to a previous standard.
MR. HENDERSON called it a new enforcement mechanism.
2:04:38 PM
REPRESENTATIVE WOOL asked what the rationale is for obtaining a
DNA sample from "someone with a DUI.
MR. HENDERSON said when an individual is charged with a felony
DUI, it means the person has had a minimum of two prior DUIs.
He said the level of risk that person presents to community
justifies the inclusion of his/her DNA in the DNA database.
REPRESENTATIVE WOOL said he understands the rationale for
obtaining the DNA of a violent criminal but argued that DUI is
not in that category. He referenced the scenario posed earlier
by Representative Kopp involving a person who is arrested for
DUI who then commits the crime of escape, a felony. He asked if
that offense would require a DNA sample under HB 49.
MR. HENDERSON said escape in third degree is an AS 11 offense so
it would. He said the offender's DNA would be used to determine
whether or not he/she was associated with other criminal acts.
REPRESENTATIVE WOOL mused that it sounds like a new
fingerprinting technique.
MR. HENDERSON confirmed Represented Wool's determination. He
said the reason that SCOTUS deemed DNA sampling permissible
under the Fourth Amendment is because it is no different from
taking someone's fingerprints, descriptors, or photograph. He
said DNA sampling and CODIS are an identification procedure and
an example of the law catching up with technology. He described
how CODIS works including quality standards, restrictions to
access, and its contributions to solving unsolved crimes.
2:09:13 PM
REPRESENTATIVE EASTMAN said he begs to differ with the assertion
that DNA samples represent little more than an updating of
technology. He noted that a fingerprint profile would not
disclose who his great-grandfather was. He asked when pre-trial
DNA collection first came into effect in Alaska.
MR. HENDERSON said DNA profiles from arrestees were first
uploaded to CODIS in approximately 2008. He noted that between
2008 and 2019, the Alaska State Crime Lab has had over 350
matches based on arrestee profiles. He clarified that this
means over 350 leads were created to investigate unsolved crimes
by matching arrestee DNA to DNA profiles in CODIS.
2:10:40 PM
REPRESENTATIVE EASTMAN referenced language in section 24 that
specifies the DNA sample being required "upon arrest." He asked
Mr. Henderson to clarify the difference between being arrested
and being charged with a crime. He asked if something in
statute would require a charge for a qualifying offense before
the DNA sample is required.
MR. HENDERSON said when a person is arrested for a qualifying
offense and DNA is submitted to CODIS, that DNA can be removed
if one of several things happens. He said those things include
the person's conviction being reversed, the person being
acquitted, charges not being filed by the prosecution, or
charges being dismissed. He said these safeguards are placed on
the system to ensure only those individuals who should be in the
system are in the system. He described additional CODIS
safeguards including the fact that it is a federal system
regulated by the federal government, that its information can
only be used for criminal investigation purposes, that there is
a penalty of $250,000 and up to one year in jail for
unauthorized disclosure of information, that misuse of
information could lead to federal charges, and that DNA is
treated as private, specific information.
2:13:58 PM
REPRESENTATIVE EASTMAN said an investigation of someone's DNA
could involve not that person but a relative of that person. He
also noted that Mr. Henderson said DNA samples may be removed
from the database. He asked if there is anything to ensure the
samples are actually removed in the event of, for example, a
person being acquitted. He asked if there are any penalties if
DNA samples are not removed in a timely manner.
MR. HENDERSON said that under Alaska law, the expungement
process is upon request, so the person whose DNA was collected
can request the sample be removed from the system, which would
generate the expungement.
2:15:31 PM
REPRESENTATIVE STUTES fixated on the phrases "could be removed
and unauthorized disclosure. She asked how someone who
requests his/her profile be removed from CODIS can be assured
the information has indeed been removed. She also noted that
penalties do not guarantee that unauthorized disclosures will
not occur, citing the example of big businesses that have been
negligent with customers' personal information. She said she
has security concerns relating to CODIS.
MR. HENDERSON deferred to DPS for more precise answers regarding
the manner and mechanisms used to secure private information.
He said, under AS 44.41.035, DPS is required to adopt reasonable
procedures for the precise issues described by Representative
Stutes. He said it is required to take steps to protect the DNA
identification registration system and to ensure there is no
accidental or deliberative unauthorized access.
REPRESENTATIVE STUTES said she understands nothing is 100
percent foolproof. She said she is satisfied with his response.
2:18:05 PM
REPRESENTATIVE LEDOUX said she is not satisfied. She said she
does not understand why an expungement cannot be automatic. She
asked why the onus is placed on a person who has been acquitted
or who may have been unjustly charged.
MR. HENDERSON said it might be possible for expungement to be
automatic, but he does not know how that would work practically
as it relates to information sharing. He said the Alaska State
Crime Lab might be able to offer a better answer. He said the
statute sets forth the steps a person needs to take to have
his/her information removed. He said the person in the best
position to know if charges were filed or dismissed is the
person who has had his/her DNA collected.
REPRESENTATIVE LEDOUX asked if he meant that a defendant would
be in a better position than DOL to know whether charges have
been dropped or dismissed. She remarked that DOL might have
some inkling" about the status of a charge.
MR. HENDERSON said that is not what he meant, noting that he was
referring to DPS, not DOL. He established a scenario wherein a
municipal law enforcement agency makes an arrest and a municipal
prosecutor files charges. He said the arrestee's DNA
information would go to DPS. Mr. Henderson said the arrestee
could inform DPS to remove that information.
REPRESENTATIVE LEDOUX asked if a DNA sample can be taken for a
misdemeanor.
MR. HENDERSON said it can be taken for all crimes against a
person, so a violent misdemeanor would qualify. He pointed to
domestic violence as an example.
2:21:28 PM
REPRESENTATIVE LEDOUX asked if "that" is something normally
prosecuted by the municipalities? She said she thought that was
normally prosecuted by [DOL].
MR. HENDERSON used Anchorage as an example and said the
Anchorage Municipal Prosecutor's Office handles the large
majority of misdemeanor prosecutions for the city including
domestic violence.
REPRESENTATIVE LEDOUX asked if, other than what relates to
municipalities, there is any reason why the State of Alaska,
when charges are dropped, cannot automatically remove DNA
samples.
MR. HENDERSON said it would just be a matter of data sharing.
REPRESENTATIVE LEDOUX asked, "Why would you be sharing the data
in order to get rid of the data?"
MR. HENDERSON said what he meant was DOL would need to transmit
information regarding the status of a charge to DPS so that DPS
can use that information to remove DNA profiles from CODIS.
REPRESENTATIVE LEDOUX remarked that this data would have to be
shared anyway via the defendant. She said if it is not all that
much of a hassle for the defendant to go to court to get
information expunged, it should not be that much of a hassle for
it to be expunged automatically.
2:24:15 PM
CHAIR CLAMAN drew a connection between this discussion and the
story of a man in Maine who was recently charged with a 1993
murder in Fairbanks. He said the DNA used to track him down was
submitted to a company like 23andMe that processes DNA
information. He referenced a different case in California where
a man was charged with a series of murders after his DNA was
obtained through company like 23andMe. He clarified that the
man in Maine was identified as a suspect because of DNA
submitted by a relative of his. He said this raises multiple
issues related to this part of HB 49.
REPRESENTATIVE WOOL noted that DNA tests and fingerprint tests
"are not 100 percent sure.
2:26:16 PM
MR. HENDERSON addressed section 27, which he said would create a
new generalized threat statute to cover situations when an
individual threatens to commit a serious act of violence and
places another person in reasonable fear of serious injury. He
explained that, under current law, the threat of harm must be a
false threat to qualify as terroristic threatening. He noted
that this revision is unrelated to changes made in 2016 and is
instead a reaction to a gap in the law identified by DOL. He
said this revision would allow law enforcement to intervene in
situations before the harm actually occurs. He said this is
because law enforcement "would not need to determine whether or
not the threat was real or false."
2:27:40 PM
CHAIR CLAMAN said the legislature made some changes to the
terroristic threatening statute in 2002. He asked what changes
were made. He asked as well about changes made to the statute
in 2013.
MR. HENDERSON said terroristic threatening, as is defined in
Alaska law, was designed to criminalize or create an aggravated
form of making a false report.
CHAIR CLAMAN said one of the early iterations of the statute
required repeated threats before an individual could be
criminally charged with terroristic threatening. He said that
is not part of the current statute for terroristic threatening
in the first degree or terroristic threatening in the second
degree. He said this implies a number of changes to the statute
over the years from the original status of the offense. He said
he would be interested in hearing more about the history of the
statute and how this revision relates to the current and prior
statutes.
MR. HENDERSON noted that the provision related to repeated
threats to cause death or physical injury was moved to the
statute covering assault in third degree. He said he did not
remember the year that occurred. He identified the statute it
was moved to as AS 11.41.220(a)(2). He said he could provide a
more descriptive history of the terroristic threatening statute
to the committee at a later time.
2:30:20 PM
REPRESENTATIVE EASTMAN addressed the phrase reckless disregard
in section 27. He asked if that includes someone who is
intentionally trying to hurt another person. He said the normal
understanding of that phrase is that it implies unintentional
conduct.
MR. HENDERSON clarified that a person who acts recklessly, as
described in law, is a person who is aware of and consciously
disregards substantial risk. He noted that a person who acts
recklessly also acts knowingly and intentionally. He said that
a person who acts intentionally to cause harm and create a
threat would also, by definition, be acting recklessly.
REPRESENTATIVE EASTMAN addressed the phrase "communicating a
threat that a circumstance exists" in section 27. He asked how
communicating a threat that a circumstance exists is
distinguished from communicating a threat for the purpose of
saving from injury, such as a security guard informing a crowd
about a bomb.
MR. HENDERSON said those circumstances are described in
subsections (a)(1) and (a)(2) under section 27. He pointed to
language in lines 5 through 9 on page 14 that is specific to an
oil or gas pipeline and intended to cover that scenario, either
a false or a real threat.
2:33:02 PM
REPRESENTATIVE EASTMAN clarified his concern. He asked if the
statute would protect a Good Samaritan who communicates a real
or perceived threat.
MR. HENDERSON said DOL would never levy charges for a situation
such as that. He said if the legislature wishes to clarify that
point, it could do so by copying language in the false reports
statute and inserting it into subsection (a)(2).
2:34:21 PM
REPRESENTATIVE LEDOUX asked why subsection (a)(2) is limited to
"the proper or safe functioning of an oil or gas pipeline." She
asked why that does not include, for example, the proper or safe
functioning of an airplane.
MR. HENDERSON said his memory of that statute is that it relates
to the concern of a bomb threat called into a gas or pipeline
facilities that has the potential to shut down that pipeline and
lead to various downstream consequences.
REPRESENTATIVE LEDOUX said she understands the concern about an
oil pipeline but wants to know why that provision does not also
include a communicated threat to a school, for instance.
MR. HENDERSON pointed her attention to subsection (a)(1)(B) on
page 13 starting at line 31, which he said covers any type of
threat that causes evacuation of a building, public place or
area, business premises, or mode of public transportation. He
said if someone were to call in a threat, real or not, that
causes the evacuation of a school, it would be covered.
2:36:37 PM
MR HENDERSON said he would skip section 28 because it revisits
the aforementioned changes to the overall sentencing scheme.
MR. HENDRSON addressed sections 29 through 36, which he said
would return drug laws to what they were prior to 2016. He
specified that the language in sections 29 through 36 is the
exact same that was in statute before 2006. He said section 29
reenacts a provision that was removed in 2016 called "misconduct
involving a controlled substance in the second degree," a class
A felony offense for the distribution of any amount of a
Schedule IA controlled substance. He clarified this means the
distribution of any amount of heroin, fentanyl, or other opioid
derivatives. He said section 29 also returns the manufacture of
methamphetamine to a class A felony offense. He noted that, in
2016, the manufacture of methamphetamine was downgraded to a
class B felony. He referenced the dangerous "one-pot meth lab"
epidemic in the early 2000s.
2:39:30 PM
REPRESENTATIVE LEDOUX asked if anything in section 29 would
affect the marijuana industry.
MR. HENDERSON said nothing in sections 29 through 36 would
affect or change the regulated marijuana industry. He noted
that DOL, in response to concerns from the Senate, has created
clarifying language that would crystalize that point. He said
the legislature is welcome to add that clarifying language to
the bill if it deems it appropriate.
REPRESENTATIVE LEDOUX suggested that the clarifying language is
necessary to avoid unwanted consequences regarding future
interpretation of the statute's legislative history.
CHAIR CLAMAN asked Mr. Henderson to send along the clarifying
language.
2:41:32 PM
REPRESENTATIVE WOOL pointed to language in line 5 of page 20
that explicitly references cannabis plants. He asked for an
explanation and whether clarifying language is needed for that.
MR. HENDERSON said this language refers to marijuana that is
outside the regulated marijuana industry.
CHAIR CLAMAN asked for confirmation that the only Schedule VIA
controlled substance is marijuana.
MR. HENDERSON confirmed that marijuana is the only Schedule VIA
controlled substance. To Representative Wool's question, he
pointed to AS 17.38.020, the personal use of marijuana statute.
He said that statute allows for the possession of less than one
ounce of marijuana or not more than 12 marijuana plants. He
said the "25 or more plants" referenced in line 5 of page 20
refers to conduct outside of the legalized marijuana industry.
2:43:27 PM
REPRESENTATIVE EASTMAN asked what falls under the category
"nonregulated marijuana" and inquired as to the broad impact of
section 29 on marijuana that is "not kosher" according to Alaska
regulations.
MR. HENDERSON said the intention is to ensure law enforcement
has the tools necessary to stop the distribution of marijuana in
those circumstances that the person distributing is not a
regulated marijuana seller or he/she falls outside [AS 17.38].
He said the intention is not to interfere with marijuana that is
lawfully regulated.
2:45:00 PM
REPRESENTATIVE LEDOUX asked whether the distribution of
bootlegged or unregulated liquor is treated similarly to the
distribution of unregulated marijuana.
MR. HENDERSON said that depends on where the distribution
occurs. He said, under AS 04, there is a scheme which dictates
the penalty provision for either brewing homebrew or selling
alcohol. He said a person who sells alcohol in a "dry"
community could be guilty of a felony.
REPRESENTATIVE LEDOUX asked what would happen to an individual
who sells alcohol in Anchorage without the appropriate license.
CHAIR CLAMAN asked, in the interest of time, for Mr. Henderson
to provide a written response to this question rather than
attempt to research the answer on the fly.
2:47:34 PM
REPRESENTATIVE WOOL asked for clarification of language in
subsection (a)(4) on page 20. He paraphrased lines 6 through 8,
which would criminalize possession of a schedule VIA substance
on or within 500 feet of school grounds. He asked if that
would be a felony.
MR. HENDERSON clarified that section 32, to which Representative
Wool is referring, would create the new crime of misconduct
involving a controlled substance in the fourth degree. He
confirmed that if a person possesses a schedule VIA substance
with reckless disregard on or within 500 feet of school grounds,
he/she would be guilty of a felony offense.
CHAIR CLAMAN asked again for verification that this means
marijuana, as it is the only schedule VIA drug.
MR. HENDERSON verified that.
REPRESENTATIVE WOOL established a scenario in which an
individual goes to a marijuana store, purchases a legal gram of
marijuana, and walks home. The person, in order to get home,
has to walk within 500 feet of a school. As the person is
walking by the school, the marijuana falls out of his/her pocket
and someone sees it. He asked if the person would be charged
with a first-time felony offense.
MR. HENDERSON said he would have to research the exact
definition of the phrase "within 500 feet of school grounds."
REPRESENTATIVE WOOL rephrased his question. He said the person
is picking up his/her child from school and the legal marijuana
is in the car. He asked if that is a felony offense.
MR. HENDERSON said taking marijuana on school grounds is a
violation.
2:50:04 PM
REPRESENTATIVE EASTMAN said it is his understanding there is
currently a similar distance limitation on churches. He asked
why that does not appear "in this part of the statute."
MR. HENDERSON said he would have to look up the definition of
"recreation or youth center" [found in subsection
(a)(4)(A)(ii)]. He said it depends on whether or not the church
would be defined that way. To Representative Wool's earlier
question, Mr. Henderson noted that there is an exception under
existing law that permits an individual to possess "in the
privacy of their own residence" within 500 feet of school
grounds. He said there are ways to carve out exceptions in
these sorts of circumstances.
2:51:26 PM
MR. HENDERSON addressed section 30, which he said would reenact
the distribution of any amount of a schedule IIA or IIIA
substance, such as cocaine or methamphetamine, to a class B
felony. He said this is another example of a repeal of the
tiered approach to sentencing.
MR. HENDERSON readdressed section 32, which he explained would
return possession of any amount of a schedule I or IIA
controlled substance to a class C felony.
2:52:20 PM
MR. HENDERSON addressed section 31, which he said would reenact
the pre-2016 law regarding the availability and length of
probation. He said section 37 would allow the court to impose
up to 25 years of felony probation for a felony sex offense
conviction and 10 years for all other offenses.
MR. HENDERSON addressed sections 38 through 43, which he said
relate to the reversion back to the pre-2016 general sentencing
scheme. He said sections 38 through 40 address the presumptive
sentencing ranges for felonies. He said section 41 would return
the 0 to 365 day sentencing range for class A misdemeanors. He
said section 43 would return sentencing discretion for class B
misdemeanors from 0 to 10 days to 0 to 90 days.
MR. HENDERSON addressed section 28, which he skipped earlier,
and explained that it addresses disorderly conduct. He said,
under current law, the maximum imposed sentence for a disorderly
conduct conviction is up to 24 hours incarceration. He
explained that section 28 would return the sentence to the pre-
2016 level of "up to 10 days." He said section 28, along with
sections 38 through 43, return Alaska's sentencing scheme to
where it was before 2016.
2:55:05 PM
MR. HENDERSON addressed sections 45 and 46, which he said would
eliminate the mandatory aspect of electronic monitoring for
those convicted of first-time DUI and instead require a
mandatory minimum 3-day sentence in a DOC facility, unless
otherwise determined by DOC. He reiterated that sections 45 and
46 would return discretion to DOC to determine the most
appropriate place for someone convicted of DUI.
2:55:45 PM
MR. HENDERSON addressed section 49, which he said is not related
to changes in 2016. He said section 49 addresses an identified
gap in the law regarding data sharing. He said it would ensure
the court system transmits information regarding involuntarily
commitments to DPS for years prior to 2014. He said that, under
current law, DPS must be informed if a person is involuntarily
committed under AS 47. He explained that the current law, which
was enacted in 2014, was written prospectively rather than
retroactively. He said section 49 would allow the court system
to share otherwise-confidential information with DPS, when
appropriate.
2:57:00 PM
CHAIR CLAMAN noted that section 49 would affect access to
firearms and inquiries on background checks for firearms. He
asked if the retroactive focus of section 49 would make some
people ineligible to purchase firearms.
MR. HENDERSON said this is correct with one caveat. He
explained that this provision would not change one's legal
status and that a person who has been involuntarily committed,
even before 2014, is prohibited from possessing a firearm under
federal law. He said section 49 would allow the court system to
share that information with DPS so that DPS can identify those
individuals who are prohibited from possessing firearms under
federal law.
CHAIR CLAMAN asked if the information made available to DPS
would in due course be released to the federal government for
purposes of its laws and regulations.
MR. HENDERSON said that is correct. He explained that DPS would
submit that information to the national database associated with
background checks.
2:58:29 PM
MR. HENDERSON addressed section 50, which he said is an
amendment to the uncodified law of the State of Alaska (SOA),
specifically Rule 6(r) - the "hearsay rule" - of the Alaska
Rules of Criminal Procedure. He noted that this is not related
to changes made in 2016, but rather another gap identified by
DOL. He said the purpose of the change is to create a more
efficient system for the grand jury process. He said section 50
would allow a person's criminal history, or "rap sheet," to be
introduced to prove the existence of a predicate offense when
that is an element of the offense. As an example, he said that,
under current law, to be guilty of felony DUI an individual must
have previously been convicted of two prior DUIs. But because
it is a felony, it is required that the individual be indicted
by the grand jury. At grand jury, he explained, SOA is allowed
under a special exception to Rule 6(r) to introduce the
individual's "rap sheet" or Alaska Public Safety Information
Network (APSIN) report to prove the existence of prior
convictions, as opposed to introducing the prior certified
copies of those convictions. He said section 50 expands that
exception to include offenses that also have a predicate offense
as an element of the offense. He said examples of those
situations include someone who is a felon in possession, someone
who is being charged with felony theft because of prior
misdemeanor thefts, or someone who is being charged with felony
assault because of prior misdemeanor assaults. Section 50, he
said, would allow the prosecution to rely on the person's "rap
sheet" or APSIN report to prove the existence of those offenses.
He added that, if the case were to proceed to trial, the state
would be required to introduce the certified copy of that
judgement. He clarified that the exception proposed in section
50 would only apply in the grand jury setting.
3:01:14 PM
CHAIR CLAMAN said HB 49 would be held for further review.
3:02:35 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:03 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB049 ver A 3.22.19.PDF |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Transmittal Letter 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Sectional Analysis ver A 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Bill Highlights 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Additional Document-Senate Bill 91 GOA Bills Matrix 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Supporting Document-Alaska Association of Chiefs of Police Letter 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note DHSS-PS 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note DPS-CJISP 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note DOA-OPA 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note DOA-PDA 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note DOC-IDO 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note LAW-CRIM 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM HJUD 4/27/2019 1:00:00 PM |
HB 49 |
| HB049 Fiscal Note JUD-ACS 3.22.19.pdf |
HJUD 3/22/2019 1:30:00 PM HJUD 3/25/2019 1:00:00 PM |
HB 49 |