Legislature(2013 - 2014)SENATE FINANCE 532
03/18/2013 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 56 | TELECONFERENCED | |
| + | SB 22 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE FINANCE COMMITTEE
March 18, 2013
9:13 a.m.
9:13:34 AM
CALL TO ORDER
Co-Chair Meyer called the Senate Finance Committee meeting
to order at 9:13 a.m.
MEMBERS PRESENT
Senator Pete Kelly, Co-Chair
Senator Kevin Meyer, Co-Chair
Senator Anna Fairclough, Vice-Chair
Senator Click Bishop
Senator Mike Dunleavy
Senator Donny Olson
MEMBERS ABSENT
Senator Lyman Hoffman
ALSO PRESENT
Senator Fred Dyson; Chuck Kopp, Staff, Senator Fred Dyson;
Forrest Dunbar, Liman Fellow; Kris Sell, Vice-President,
Alaska Peace Officers Association; Lee Phelps, Self; Kate
Burkhart, Executive Director, Advisory Board on Alcoholism
and Drug Abuse; Richard Svobodny, Self.
PRESENT VIA TELECONFERENCE
Carmen Gutierrez, Co-Chair, Alaska Prisoner Reentry Task
Force, Anchorage; Seth McMillan, Self, Anchorage; Walt
Monegan, Alaska Native Justice Center, Anchorage; Rick
Allen, Director, Office of Public Advocacy, Anchorage;
Quinlan Steiner, Self, Anchorage.
SUMMARY
SB 22 CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
SB 22 was SCHEDULED but not HEARD.
SB 56 RECLASSIFYING CERTAIN DRUG OFFENSES
SB 56 was HEARD and HELD in committee for further
consideration.
Co-Chair Meyer noted that Senator Hoffman had an excused
absence for the day.
SENATE BILL NO. 56
"An Act relating to certain crimes involving
controlled substances; and providing for an effective
date."
9:14:36 AM
SENATOR FRED DYSON, offered that the state had a propensity
to over criminalize offenses during the past few decades.
He shared that his office was undergoing an effort to get
"smart on crime" and stated that the legislation was the
first step in that effort. He pointed out that the
legislation reclassified crimes involving small amounts of
drugs, in which there was no harm and no intent to
distribute, from a Class C felony to Class A misdemeanor.
He related the growing prison populations in Alaska over
the last 12 years and shared that currently, 60 percent of
the population in the state's corrections institutions were
non-violent offenders. He remarked that the Goose Creek
Prison had a cost of $250 million to the state and pointed
out that the Department of Corrections (DOC) predicted that
if the rate of incarceration did not change, another prison
the same size would need to be built in 7 years. He
reported that Legislative Research Services had indicated
that the bill would avoid 10s of millions of dollars in
costs every year.
CHUCK KOPP, STAFF, SENATOR FRED DYSON, introduced himself
and Mr. Dunbar. He related that Mr. Dunbar was a recent
graduate of Yale Law School who had helped with the
research on the bill as part of a Liman Fellowship. He
related that the current cost of the state's drug policy
was not sustainable and emphasized that the bill would not
decriminalize anything that was currently in the law. He
stated that it would still be against the law to possess
any amount of a Schedule IA or IIA drug. He shared that the
essence of SB 56 was to set a threshold for what was a
felony amount and offered that that without establishing a
threshold, the state was not being conscious of the total
impact to the system. He relayed that corrections and
independent researchers had shown that by classifying drug
possession for small, non-distributable amounts as a
felony, the state was paying $54,000 per year for each
person that was in prison for that long on a felony charge.
He stated that the bill treated drug possession similar to
the current treatment of DUIs and explained that the first
two possessions would be misdemeanors, while the third
violation would be a felony. He stated that the legislation
would eliminate the felony label for the first time
offenders. He expounded that a felony label prevented
employment prospects, affordable housing, and professional
licensing, which had been determined to be variables that
were strongly related with recidivism and domestic
violence.
Mr. Kopp spoke to the sectional analysis of the bill (copy
of file).
Section 1
1. Amends the criminal statute AS 11.71.040
(Misconduct Involving Controlled Substance in the
Fourth Degree), raising the quantity of Schedule IA or
IIA controlled substance needed to be found in an
offender's possession that would precipitate a felony
charge from "any amount" to a quantity that implies
distribution.
2. Establishes that the quantity possessed that
implies distribution and opens an offender to a felony
charge is 15 or more tablets, ampules, or syrettes
when the Schedule IA or IIA is found in such a form.
3. Further establishes that the quantity possessed
that implies distribution and opens an offender to a
felony charge is 3 grams when the Schedule IA or IIA
substance is in the form of a preparation, compound,
or mixture.
4. Creates a carve out for the substances heroin and
Lysergic acid diethylamide (LSD), each of which will
be subject to a stricter felony quantity limit: 500
milligrams for heroin and 300 milligrams for LSD.
5. Provides for an "escalating punishment" system
wherein a repeat offender found in possession of any
amount of Schedule IA or IIA substance may still be
prosecuted for Misconduct Involving a Controlled
Substance in the Fourth Degree-a Class C Felony-if
they have been previously convicted of any drug
offense defined in AS 11.71.010 - 11.71.050 in the
five years preceding the current offense.
6. Leaves unaffected any provisions of this statute or
any other controlled substance statute that empowers
law enforcement and prosecutors to charge and convict
distributors of controlled substances.
Section 2
1. Provides that offenders found in possession of
small quantities of Schedule IA and IIA substances may
be prosecuted under AS 11.71.050 (Misconduct Involving
a Controlled Substance in the Fifth Degree), a Class A
Misdemeanor.
2. Establishes that an offender may be prosecuted of a
Misconduct Involving a Controlled Substance in the
Fifth Degree if they are found with any amount of a
Schedule IA or IIA substance up to the felony limits,
above which they are subject to felony convictions
under AS.71.040.
3. Establishes the felony limit as 15 tablets,
ampules, or syrettes if the substance is found in such
a form, or 3 grams if found in a preparation,
compound, or mixture.
4. Includes carve outs for heroin and LSD, for which
the felony limits will be 500 and 300 milligrams,
respectively.
Section 3
1. Establishes that this Act applies to offenses
committed on or after the effective date of the Act,
except that references to previous convictions in the
"escalating punishment" or "three strikes" provisions
of Section 1 include convictions occurring before, on,
or after the effective date.
Section 4
1. Removes conflicting language related to Bath Salts
from the MICS-4 and MICS-5 statute. After the passage
of this bill, Bath Salts will be treated as other
Schedule IIA controlled substances, with the same
felony limits as, for example, methamphetamine.
Section 5
1. Provides for an effective date.
9:22:44 AM
Co-Chair Meyer noted that Co-Chair Kelly and Senator Bishop
had joined the committee.
Vice-Chair Fairclough pointed to the bill's effective date
and asked how the state would handle people who were
already incarcerated if the legislation passed. She
inquired if people who were currently incarcerated would be
able ask for consideration under the bill and wondered if
that would be a good thing. Mr. Kopp replied that they
could ask for consideration under the bill, but that the
main thing the bill did was that it addressed a future act
if a person did have two prior convictions within a five-
year period. He expounded that the bill could result in a
felony for people that were incarcerated for the third time
and that it did incorporate two prior acts. He opined that
if the question pertained to whether someone who was
convicted under the old law could ask for a felony to be
turned into a misdemeanor, then he believed the answer was
no. He explained that someone could make a legal argument,
but opined that it would not "hold water" because the law
would apply going forward.
Vice-Chair Fairclough mentioned the high and escalating
costs of incarceration and inquired if there was a reason
the state would not want to have mandatory drug counseling
or "something else" that would be the responsibility of the
previously convicted individual. Mr. Kopp responded that
the questions were excellent public-policy questions that
needed to be explored.
Vice-Chair Fairclough noted that it had had been said for a
number of years that the prisons in Alaska were full and
that the state was picking up the costs for people who were
non-violent drug offenders. She wanted to see some
discussion in the future regarding the bill's effective
date and noted that people could be languishing in prison
because of a date versus how the state was viewing that
offense in the future.
Co-Chair Meyer noted that the committee would probably hear
some options in the future as the bill progressed through
the process.
Senator Dunleavy observed that he concurred with Vice-Chair
Fairclough. He explained that if there was a way to "reach
back" and somehow mitigate "where those folks are now" in
order to allow them fall under the bill's concept, it would
be something that he would look forward to.
9:25:56 AM
FORREST DUNBAR, LIMAN FELLOW, began a presentation titled
"Reclassifying Nonviolent, Small Quantity Possession."
(copy on file) He stated that he was on a fellowship that
was being hosted by the Office of Public Advocacy (OPA),
where he had conducted the research, but stressed that he
did not represent OPA, the Department of Administration, or
any other executive branch of government.
Mr. Dunbar spoke to slide 2 titled "Reclassification of
Drug Possession."
· SB 56 creates an "Escalating Punishment" system,
similar to the State's approach to DUI's or DV4's
(Domestic Violence in the 4th Degree). Key
features:
· Reclassification of small quantity,
nonviolent possession to a misdemeanor
· "3-strikes" Rule. Repeat offenses= felony.
· Strict quantity limits; over the limit =
implied distribution = felony.
· No restrictions placed on law enforcement or
prosecutors to pursue drug dealers,
regardless of quantity (i.e., any evidence
of selling drugs = felony).
· This should lead to reductions in:
· Prison admissions
· Legal and adjudication costs
· Low-risk offenders being placed on felony
probation
· Collateral consequences for simple
possession offenders
· Reduction in indirect costs, such as welfare
costs
· Significant cost savings while maintaining public
safety.
Mr. Dunbar stated that the bill only applied to non-
violent, small quantity possession offenses.
Mr. Dunbar addressed slide 3 titled "Alaska's Prison
Population Growth." He stated that the graph on the slide
was from DOC. He noted that the red line represented the
number of prison beds that were available in the state and
pointed out the jump in 2012-2013 when Goose Creek Prison
had been brought on line. He stated that the blue line,
which was the prison population, had been growing at about
3 percent a year, which was more than double the rate of
general population growth. He related that in 2013, the
lines crossed and that the state would be faced with the
prospect of building another prison or exporting Alaskans
outside of the state.
Mr. Dunbar discussed slide 4 titled "Drivers of Alaska's
Prison Population Growth."
1. Increased admission for Felony Theft in the Second
Degree-theft of property valued over $500-and
increased sentence lengths associated with these
offenses.
2. A 63% rise in prison admission for drug offenders,
particularly felony offenders convicted of possession
offenses.
>>Addressed by Senator Dyson's SB 56.
3. Increase in Petitions to Revoke Probation (PTRP's)
and probation violations.
>>Connected to number of offenders on felony
probation; greatly impacted by SB 56.
•Source: DOC Memo, Factors Driving Alaska's Prison
Population Growth, at 1 (August 24, 2012).
Mr. Dunbar discussed a 2012 internal memo from DOC and
stated that it indicated that there were three primary
drivers of the prison population growth, which were
displayed on the slide. He stated SB 56 attempted to
address the second point on the slide, but that it would
also have an impact on the third point because there would
be fewer people on felony probation.
Mr. Dunbar spoke to slide 5. He stated that in the last
five years, there had been a fairly large increase in the
number of charges of Misconduct Involving a Controlled
Substance in Fourth Degree (MICS-4), which was a Class C
felony. He related that typically a MICS-4 was prosecuted
for anyone caught with any quantity of a Schedule IA or IIA
drug. He thought that a person could also receive MICS-4
for being caught with a large quantity of Marijuana or
having Marijuana on a school ground. He stated that the
bill addressed the simple possession offense and left the
other portions of MICS-4 untouched. He added that the bill,
in no way, impacted the difference Schedules and reported
that bath salts would remain a Schedule IIA substance.
9:29:26 AM
Mr. Dunbar discussed slide 6 titled "Collateral
Consequences from Small-quantity Drug Felonies."
· First and foremost, barrier to employment:
o Medicare/Medicaid facilities - federal law
o Anchorage School District - district policy
o North Slope - Private HR decision
· Difficulty finding housing
· Inability to qualify for certain federal benefits,
like Food Stamps
· Ineligible to become a Village Public Safety Officer
· Other barriers: stretched to 26 pages of appendices in
full report
· SB 56 allows Alaskans to avoid many of these
consequences if they are not repeat offenders.
Mr. Dunbar stated that an important consideration was that
felons were, in many ways, removed as functioning members
of society. He pointed to the first bullet point and
related that even if Alaska changed its own laws, all of
the collateral consequences would not be affected. He
recalled that during his research, he had contacted an HR
firm that hired on the North Slope. He related that the
firm did not hire most felons and that even for non-
violent, low-level felons, it required a ten-year cooling
off period. He observed that the Anchorage School District
had a similar policy that required ten years to have
elapsed since a felony conviction in order to gain
employment. He concluded that SB 56 removed non-violent
drug offenders from the "felony web."
Mr. Dunbar spoke to slide 7 titled "Reduced Legal and
Adjudication Costs." He discussed the slide's graph and
related that partly because a felony on one's record was so
serious, they were fought much harder in court; partially
because of this, it took more than twice as long for the
average felony case to reach disposition in Anchorage
courts as it did for misdemeanor charges. He mentioned that
the increased time to disposition was important to note
because it led to higher costs to the prosecutors, the
court system, and to the defense agencies.
Mr. Dunbar addressed slide 8 titled "Annual Savings from
Reduced Legal and Adjudication Costs." He shared that in
his research, he had tried to estimate what the savings to
the different defense agencies and the courts would be from
a reduction on felony charges. He reported that his
research had found that there would be between $400,000 and
$800,000 in annual savings, which came from the reduction
in days, as well as from other aspects. He explained that a
grand jury did not need to be empaneled for a misdemeanor;
also, if a misdemeanor did go to trial, it required a
smaller jury than a felony did. He stated that most
importantly, typically misdemeanor charges involved less
experienced, less expensive attorneys on both the
prosecution and the defense. He stated that he had reached
out to the Department of Law (DOL) during his research, but
had been unable to get data from the department regarding
cost savings.
Mr. Dunbar spoke to slide 9 titled "Projected Range of
Annual Savings to DOC from Reduced Incarceration
Population." He related that the largest savings to the
state would be in DOC. He stated that a similar reform had
been passed in Colorado and had been attempted in
California and that the two states' equivalents of
Legislative Research Services performed estimates of the
bed impact of those reforms. He relayed that he attempted
to take those estimates, analogize them to Alaska, and
change them to meet the Alaska's cost structure. He pointed
out that using the estimates, he had found between $1.5
million and $2 million in cost savings within 4 years. He
stated that Legislative Research Services had conducted its
own study that used a different methodology and had found
about $14 million in annual costs. He pointed out that the
legislative research's model operated on "costs" and not
"cost savings" and emphasized that the two estimates were
measuring slightly different things; however the estimates
suggested that there were millions of dollars in potential
costs savings that could be reached through the bill. He
concluded that he had tried to be very conservative with
his estimates.
Mr. Dunbar discussed slide 10 titled "Public Safety: Map of
Lower-48 States Where Drug Possession is a Misdemeanor." He
related that the map depicted the 14 states where the
offense that the bill dealt with was already a misdemeanor.
He pointed out that while Alaska would be joining the
minority of states, it would be far from the first to
implement the policy. He shared that the map was
interesting because it showed that the states were varied.
He pointed out that while the states were concentrated in
the Northeastern U.S., they included poor states like
Mississippi, rich states like New York, rural and
conservative states like Wyoming, and urban and liberal
states like Massachusetts.
9:34:18 AM
Mr. Dunbar addressed slide 11 titled "Public Safety:
Statistical Comparison." He relayed that he did not have
the kind of data that was necessary to do regression
analysis and that he did not want to overstate his
conclusion. He stated that he was not claiming that there
was a causal link between making small-possession, non-
violent drug offenses a misdemeanor and "these kinds of
outcomes." She related that it was the case, for whatever
reason, that the states where the offense was a misdemeanor
had lower rates of violent crime, property crime,
incarceration, and drug use. He opined that the slide's
listed states probably had lower rates of drug use because
they had higher rates of drug treatment, which was proven
more effective at actually reducing drug use. He pointed to
the slide and related that it showed that the levels of
drug treatment were significantly higher in states where a
small-quantity, non-violent drug offense was a misdemeanor.
He stated that a counter argument to bills like SB 56 was
that the threat of a felony was needed to keep people in
drug treatment, which was demonstrably not the case; there
were higher drug treatment rates in misdemeanor states. He
believed that Alaska had the tools necessary by using the
Class A misdemeanor charge in order to keep people in
treatment. He recalled speaking with prosecutors, judges,
and probations officers during his research, who had
indicated that between three and nine months of suspended
time was needed in order to incentivize people to stay in
treatment; this was important to note because the state
could sentence up to a year in prison, as well as up to a
$10,000 fine for a Class A misdemeanor. He concluded that
the rates of rape and domestic violence were also lower in
"misdemeanor states."
Mr. Dunbar discussed slide 12 titled "Conclusions."
· Predicted outcomes from SB 56:
o Minimal impact on public safety.
o Large reduction in collateral consequences
for offenders and improvement in
employability.
o Reduction in Probation Officer caseloads.
o Between $5.77 and $10.31 million in savings
to the State over four years, increasing
thereafter (LRS estimates considerably
larger).
Mr. Dunbar believed that the bill, as it was structured,
would have a minimal impact on public safety. He discussed
the third bullet point and related that it was particularly
important to Anchorage because the officer caseloads were
too high there. He opined that for best practices, the
caseload per officer should be around 80, but that it was
currently around 120 cases in Anchorage. He concluded that
if the state was able to bend the prison population growth
curve down and put off the day that it would have to build
another Goose Creek Prison, it could save hundreds of
millions of dollars.
Co-Chair Meyer inquired what percentage of Alaska's
criminal offenders were in prison for non-violent crimes.
Mr. Dunbar believed it was 64 percent. He offered that
around the year 2000, the majority of people in Alaska's
correctional facilities were violent offenders and that
there had been a large growth in the number on non-violent
offenders in the state's prisons since that time.
Co-Chair Meyer inquired if individuals that were charged
with possession of marijuana or cocaine were actually
charged as felons or if it was usually negotiated into a
misdemeanor. Mr. Dunbar clarified that the bill did not
affect marijuana laws and that it was relatively infrequent
to be charged with a felony for marijuana, unless it
involved a very large amount. He related that the bill
dealt with more serious drugs and offered that depending on
the circumstances, marijuana and cocaine possessions were
often negotiated down to Class A misdemeanors. He pointed
out that there was a former prosecutor online who could
speak to the question better, but that many people were
prison or had been charged with a felony for this offense.
Co-Chair Meyer noted that there were several people online
from law enforcement and the judicial system that could
answer his question. He related that violence was often
associated with drugs and that there were multiple factors
that went into a judge's decision at sentencing. He opined
that the bill was a great idea and felt that prisons should
be for violent offenders.
Co-Chair Meyer OPENED public testimony.
9:39:25 AM
CARMEN GUTIERREZ, CO-CHAIR, ALASKA PRISONER REENTRY TASK
FORCE, ANCHORAGE (via teleconference), testified in support
of SB 56 and provided a brief history of her work
experience as a criminal defense attorney in the state, as
well as her time working for DOC. She related that she had
seen a number of lives ruined because of the felony
labeling and incarceration that occurred primarily because
society had decided that it was appropriate to incarcerate
the people that it was mad at, as opposed incarcerating the
people that it was afraid of. She related that the
incarceration rates for non-violent criminals had risen
dramatically and that the percentage of non-violent
convictions had increased from 42 percent in 2002 to 62
percent in 2011. She pointed out that DOC's annual
operating budget had also increased dramatically since 2005
and had grown at an approximate annual rate of 5.5 percent
since that time. She stated that the number of Alaskans who
were being charged and convicted as felony drug offenders
was growing each year, despite the fact that the
prosecuting attorneys and prosecutors had the discretion to
reduce some of these felony offenses to misdemeanors. She
shared that the incarceration rates for both misdemeanor
and felony drug offenses had increased by 63 percent since
2002. In 2002, there were 967 admissions to DOC, which grew
to 1,574 in 2010. Additionally, from 2002 to 2010, the
admissions for felony drug offenders in in DOC had risen by
over 81 percent. She noted that the average length of stay
for a felony offender had also increased over the last ten
years; in 2002, the average stay for a felon was 6.6 years,
which had had increased to 7.2 years by 2011. She remarked
that the cost of incarceration was rising each year along
with the increased incarceration rates. She offered that
increased costs, length of stay, and the increase in felony
labels may "be well and fine" if the state's approaches
were effective in reducing criminal recidivism, but that
research had shown that Alaska's approach was not working.
She related that in November of 2011, the Alaska Judicial
Council released an updated version of its 2007 recidivism
study, which showed that the recidivism rates had not
improved.
9:44:43 AM
Ms. Gutierrez stated that Alaska still had 2 out of 3
Alaskans returning to prison for a probation violation or a
new offense within the first 3 years of release. She
suggested that Alaskans were not receiving good value for
their criminal justice dollars and submitted that the state
was at a crossroad. She discussed the high construction and
operating costs of the Goose Creek Prison. She stated that
in 1982, 1 out of every 90 Alaskans was under the
jurisdiction of DOC; by 2007, that number had increased to
1 out of every 38, which again increased to 1 out of every
36 Alaskans by 2009. She was supportive of people being
accountable for their own conduct, but offered that the
issue was how the state dealt with drug use that did not
involve distribution. She submitted that research had shown
that incarceration for the simple possession of controlled
substances was not a cost-effective or public-safety minded
approach. She discussed the collateral consequences of
felony labeling and shared that the consequences to
Alaskans were severe. She stated that Alaska had 492 state
statutes and regulations that pertained to collateral
consequences for criminal convictions, which clearly
impacted an individual's ability to find employment and
housing. She discussed her experience with prisoner reentry
issues at DOC and related that some of the state's largest
corporate landlords had a blanket policy not to rent an
apartment to any individual who had a felony conviction
that was not at least 8 years old. She offered that the
state was creating a large class of Alaskans who could not
get a second chance. She opined that the bill would give
Alaskans a meaningful opportunity to obtain rehabilitation
for drug issues and pointed out that under the legislation,
a person would still get felony on their third conviction.
She offered that the state needed to look at more effective
strategies for addressing the issue of criminality in
Alaska, particularly regarding low-level, non-violet
offenses.
9:51:26 AM
Co-Chair Meyer observed that Ms. Gutierrez had spent a
great deal of time and effort on the issue and related that
the committee appreciated her testimony. He related that he
personally agreed with Ms. Gutierrez, but wanted to hear
more about the bill. He offered that small quantity
possession offenders should not be in prison, but stated
that there was concern with distributors of narcotics. He
assumed that the bill did change the law regarding the
distribution of drugs and inquired if that was correct. Ms.
Gutierrez pointed out that Mr. Kopp and Mr. Dunbar could
explain in greater detail, but that the bill did not
address the issue of dealing or the delivery of a
controlled substance. She continued to explain that the
bill did not hamper a prosecutor's ability to prosecute
individuals who were charged with dealing controlled
substances. Co-Chair Meyer noted that the state had a
problem with heroin and oxycontin and that the people
pushing those drugs should not be shown any leniency.
Co-Chair Kelly pointed out that the bill only applied to
possession offenses.
SETH MCMILLAN, SELF, ANCHORAGE (via teleconference),
testified against SB 56. He discussed his history working
in law enforcement and his recent experience investigating
street level drug trafficking. He discussed his work in the
capacity of a drug investigator. He addressed the bill's
requirement of two or more prior convictions before making
the possession of a Schedule IA or IIA a Class C felony and
related that the Anchorage District Attorney's Office
regularly made pre-indictment offers of Suspended
Imposition of Sentence (SIS) for the first MICS-4; this
meant that if the defendant completed a designated period
without committing new crimes, the conviction was set
aside. He pointed out that the SIS effectively made the
bill's requirement of two prior convictions actually three
convictions. He discussed the weight and amount thresholds
of certain drugs in the bill. He stated that number
threshold of less than 15 tablets of oxycodone was
unrealistic for simple possession. He relayed the current
street prices for oxycodone, as well as the average daily
usage of an addict. He offered that the threshold of less
than 3 grams of a Schedule IA or IIA substance was also
unrealistic. He pointed out that the street price for
crystal methamphetamine was around $240 per gram and that
the average addict was rarely in possession of more than .5
grams to 1 gram. He shared that the average street price
for cocaine was about $100 per gram and that the average
addict was rarely in possession of more than .2 grams to 1
gram; the average amount was even less for crack cocaine.
He offered that dose of heroin was around .1 grams or less
and shared that the street value of that amount was $50;
the average user was consuming .1 grams to .4 grams daily.
He stated that the bill's threshold exception of .5 grams
allowed for misdemeanor possession of 10 to 18 doses. He
stated that he had contacted and reviewed the bill with a
former confidential informant who used to be a heroin and
methamphetamine dealer; the informant had agreed that the
legislation would empower a street-level dealer. He
concluded that the bill would establish misdemeanor amounts
and weight thresholds that were actually distribution
amounts, that the requirement for previous misdemeanor
convictions before becoming a felony was unrealistic, and
that it would enable the street-level drug trafficker.
Co-Chair Meyer appreciated Mr. McMillan's work on bath
salts, "spice", and other "so called" legal drugs.
9:56:59 AM
Co-Chair Kelly requested a written copy of Mr. McMillan's
testimony. Mr. McMillan responded in the affirmative.
WALT MONEGAN, ALASKA NATIVE JUSTICE CENTER, ANCHORAGE (via
teleconference), spoke in support of SB 56. He shared that
the bill was a logical and intuitive approach to fighting
addiction. He shared that he was opposed to the "scarlet
letter" that came with a felony. He was sympathetic with
the previous testifier, but stated that the bill did so
many positive long-term things within society. He pointed
out that the state currently operated under the traditional
"retributive justice, which was based on pain and
punishment," which resulted in about a 66 percent
recidivism rate. He pointed out that several years prior,
the state had begun to employ aspects of a "restorative
justice," which were the therapeutic courts. He shared that
the therapeutic courts had proven to be very effective,
which had been confirmed in studies by the Alaska Judicial
Council. He shared that Native participants had responded
well to the therapeutic court programs. He offered that the
state needed to consider the downstream aspects of what
having a felony conviction did and pointed out that it
hindered employment, housing, and other things. He cited a
study titled "The Adverse Childhood Experience Study" and
pointed out that having a parent in prison was one of the
ten factors that led to health and behavioral issues later
in life. He opined that the bill would help mitigate future
downstream issues and offered that it was an investment in
individuals and society.
10:01:33 AM
RICK ALLEN, DIRECTOR, OFFICE OF PUBLIC ADVOCACY, ANCHORAGE
(via teleconference), testified OPA's support of the SB 56.
He shared that there was a devastating impact of felony
convictions on individuals and families and related that
the scope was larger than the impacts on an individual's
employment prospects. He explained that studies showed that
having a parent in prison could be just as harmful to a
child as witnessing or experiencing domestic violence. He
continued that children with parents in prison were more
likely to be in need of aid or be involved in the juvenile
justice system and pointed out that either of these
scenarios cost OPA resources that could be used elsewhere.
He shared that the district court was able to deal with a
large volume of cases in a timely and efficient manner and
that the misdemeanor disposition of low-level drug cases
would enable OPA to use less expensive attorneys. He
offered that the bill should also reduce the amount of
litigation in these matters, which would result in saving
money in attorney time, travel, and expert witnesses. He
opined that results from other states had shown that
reclassification would likely have no negative impact on
public safety. He offered that the legislation would
positively impact the lives of OPA clients and save the
state considerable resources.
QUINLAN STEINER, SELF, ANCHORAGE (via teleconference),
expressed his support for SB 56. He stated that the bill
would likely have a positive impact on an individual's
attempt at rehabilitation. He offered that the opportunity
to take personal responsibility for a drug addiction would
likely divert a significant number of people out of the
system without the consequences of felony convictions.
10:05:25 AM
KRIS SELL, VICE-PRESIDENT, ALASKA PEACE OFFICERS
ASSOCIATION, expressed the association's opposition to SB
56. She offered that the bill's cost-savings estimates were
not reasonable and related that the Department of Law
already plea bargained felonies down to misdemeanors or
dismissed them in the face of likely or sincere commitment
to treatment. She related a story that illustrated her
point. She stated that the bill dealt with expensive,
highly addictive drugs, which drove users to significant
criminal activities and that although there had been
discussion about the nature of the offense, there had been
no reference to whether the person themselves was non-
violent or whether they were committing other felonies. She
related that it would be easy to be able to put criminals
into "neat, constrained little boxes," but offered that
people who were experimenting with heroin did not go to
work all day and pay their bills. She stated that heroin
was a highly-addictive, life-destroying drug that pressed
people into an entire lifestyle of crime. She warned
against removing the tools that law enforcement needed to
address the issue and pointed out that "this" very small
portion of the population committed the vast majority of
crimes.
Senator Bishop expressed appreciation for the work of peace
officers and noted that he had been a victim of a home
burglary. Ms. Sell observed that the burglary had probably
felt quite violent. Senator Bishop indicated that it had.
Senator Bishop observed that Alaska had been fighting a war
on drugs for 40 years and had spent billions of dollars on
the issue. He inquired what the common sense approach to
the problem of drug use was and noted that the current
approach was not working. Ms. Sell acknowledged that the
current system was not working and asserted that she was a
strong advocate of accessible and available treatment. She
pointed out that some addicts had a brief period of being
open to treatment, but that if they were put on a waiting
list, the bureaucracy was too complicated, or they had
other mental-health problems that were not being met, it
became necessary to lock them up for public safety. She
pointed out that the ideal system would help these
offenders, but that removing the consequences for these
types of offenders lengthened and deepened their career.
She wondered if the committee wanted to send the message
that experimenting with heroin was the same type of offense
as keeping an envelope that you found with $100 in it. She
concluded that removing the consequences would not motivate
people.
10:12:03 AM
LEE PHELPS, SELF, testified against SB 56. He related his
work experience in drug enforcement in Alaska. He recalled
that prior testimony had stated that the bill dealt with
non-violent offenders and would not decriminalize anything,
but thought that the bill would have several unintended
consequences. He related that Misconduct Involving Weapons
in the Second Degree was currently a Class B felony under
AS 11.61.195. He explained that it was currently a Class B
felony to possess a firearm in the commission of an offense
under AS 11.71.010 through 11.71.040, but that if the bill
were to pass, someone would be able to legally possess a
firearm while also possessing methamphetamine, cocaine,
heroin, or oxycodone. He opined that someone under the
influence of those drugs should not be allowed possess a
firearm. He recalled recently arresting someone who
possessed two firearms, heroin, cocaine, and
methamphetamine and related that the individual had been
charged with four felonies; if the bill was passed, the
perpetrator would have been charged instead with a Class A
misdemeanor. He concluded that the bill would represent a
gross injustice in protecting society if it were to pass.
Senator Dunleavy thought the last several testifiers had
indicated that reducing the penalties would make the drug
problem worse and inquired if doubling the penalty would
make things better. Mr. Phelps replied that what he was
saying was that the bill would make a Class B felony legal
and pointed out that the U.S. Supreme Court had stated that
drugs and guns were associated with each other.
Senator Dunleavy inquired if the bill would change the law
so that someone who had guns and was doing drugs would be
charged with a misdemeanor instead of a felony. Mr. Phelps
replied that they would not be charged with a weapons crime
at all, but would be instead charged with a Class A
misdemeanor for the possession of the controlled substance.
He noted that from a public safety standpoint, he did not
want anyone who had narcotics to also have a gun.
Senator Dunleavy inquired why other testifiers that were in
the same business as Mr. Phelps had a different opinion
about the legislation.
10:18:14 AM
KATE BURKHART, EXECUTIVE DIRECTOR, ADVISORY BOARD ON
ALCOHOLISM AND DRUG ABUSE, testified the board's support of
SB 56. She stated that the board had provided a letter of
formal support for the bill and that it had deliberated at
length and taken a formal vote on matter. She stated that
the advisory board had weighed the considerations that were
being voiced from the law enforcement community, but that
because the traditional justice responses were not always
effective at dealing with the issue, it had felt that
access to treatment was a better option. She stated that
the effectiveness of having access to treatment had been
proven with the therapeutic courts in Alaska and remarked
that the misdemeanor process allowed the courts to order
people into treatment.
Senator Olson noted that the people who were out there
"where the rubber meets the road," who dealt with criminals
that may have ill intent for society in general, seemed to
disagree with Ms. Burkhart's views on simply going into
treatment. Ms. Burkhart responded that part of the board
members' deliberations was to reflect on the experiences of
board members who were in recovery themselves; several of
the board members were in recovery for illicit narcotics.
She related that the board had members who had contact with
the criminal justice system before their recovery period
and pointed out that it also had providers of treatment
services that offered assistance to people who were engaged
with the criminal justice system. She offered that the
discussion had been informed by the experiences of board
members and the public that it served, which had indicated
that while many people had ill intent, characterizing all
people who were in possession of a small amount of a
Schedule IIA substance as someone who was going to burgle a
home was incorrect. She shared that the board had a member
who had been addicted to heroin and had never been involved
in criminal activity and furthered that board members were
persuaded by its experience, as well as their clients'
experiences, when it decided on whether or not to support
the bill. She related that the board dealt with people who
had not been full-fledged addicts yet, but that as result
of a felony conviction, had lost their jobs, their access
to public housing, and their ability to support their
families. She pointed out that hardcore addicts did present
a public safety concern at times, but that there were also
people who were experimenting or were not engaged in the
criminal elements who would be unable to support their
families as a result of a felony. She related that the
board was trying to balance an appropriate and effective
response, but admitted that the members had not looked at
the legislation's financial consequences to the state.
Senator Olson commented that some of the board's members
were recovering addicts and inquired if the drug users that
made it to "that level" were a very small subset of the
entire segment of society that had "this affliction." He
offered Ms. Burkhart's assertion in contrast to the two
prior testimonies by law enforcement officers. Ms. Burkhart
believed that the board members' recovery was a testament
to the effectiveness of treatment services when they were
made available. She related that there were many facets to
every problem and stated that she represented people who
experienced substance abuse disorders, the providers of
services, and the families and communities. She offered
that she was not saying that the board's perspective was
more important or valid than that of law enforcement, DOC,
or policy makers, but that it was part of the many facets.
She concluded that balancing all of the competing
experiences and perspectives was why policy making was
hard. She added that the board had approached the bill from
its own perspective, but recognized that law enforcement
had a different one.
10:24:41 AM
Senator Bishop expressed appreciation for the work of the
Advisory Board on Alcoholism and Drug Abuse.
Senator Dunleavy inquired if there were more violent crimes
associated with alcohol or with people under the influence
of the drugs that were covered in the bill. Co-Chair Meyer
stated that the committee would finish taking public
testimony before the question was addressed.
10:26:01 AM
RICHARD SVOBODNY, SELF, expressed concerns about the
unforeseen consequences of SB 56. He discussed the revision
of drug laws in Alaska in 1982 and observed that the state
had followed a model that was similar to the federal
government's model. He explained that the state's
"Schedules" on controlled substances were generally the
same as the federal government's system. Alaska had six
schedules and the federal system had five. He related that
a schedule of a drug was based on what the perceived danger
of that substance was. The past history, use, the
biochemistry, toxicity, the history of abuse, and how it
related to other crimes were taken into consideration when
formulating the perceived danger and scheduling. He
explained that Schedule IA controlled substances, which
included heroin and oxycontin, dealt with substances that
were viewed as the most serious. He stated that a Schedule
VI substance was marijuana. He stated that the methodology
in determining which schedule a drug fell under was laid
out in statute. He noted that testimony regarding the
reasons for the bill's proposed change was based on a
factor of cost, which was not envisioned by the 1982
legislature when it had made the criteria. He related that
the cost of incarceration had not been considered when the
schedules were established and offered it could be added to
the bill as a determining factor in scheduling.
Mr. Svobodny stated that one element of state's drug law
pertained to the nature of the offense and that the other
part dealt with the prohibited conducted, which consisted
of six difference degrees. He pointed out that just like
the schedules, the most serious degrees started on top. He
related that Misconduct Involving a Controlled Substance in
the First Degree (MICS-1) was an unclassified felony and
included things like distributing heroin to children or
being involved in a continuing criminal enterprise. He
stated that Misconduct Involving a Controlled Substance in
the Sixth Degree (MICS-6), which was the least serious
degree, was the possession of less than one ounce of
marijuana. He stated that the bill only addressed MICS-4
and Misconduct Involving a Controlled Substance in the
Fifth Degree (MICS-5) offenses. He offered that bill
attempted to balance the prohibited conduct versus the
danger of the drug. He wondered if it was appropriate or a
good policy decision to say to children and other
prospective users that using heroin or other Schedule IA
and IIA drugs was not all that serious of a matter. He
added that the overriding policy question was balancing the
message that would be sent to the public with the cost of
incarceration.
Mr. Svobodny stated that reclassifying the prohibited
conduct was not same model that was used for DUI offenses
and related that there were several differences. The first
difference was that the look back period in the legislation
was five years, while the look back period was ten years
for DUIs. He noted that DUI offenses had mandatory minimum
sentences, which did not exist in the bill. He shared that
the bill's structure was similar, but was not the same as
DUI offenses. He related that the bill may be the death
knell of the therapeutic courts and explained that it might
result in a substantial reduction in the number of people
involved in those courts. He asserted that there were
basically three groups of people who were in therapeutic
courts and that they were people with felony DUIs, people
with felony property offenses that resulted from drugs, and
people with a MICS-4, which was currently a felony. He
shared that the therapeutic courts offered an SIS for
felony drug offenses for people that went through the
system, but that the courts were currently having trouble
getting felons to accept those terms. He explained that
drug addicts would rather do 20, 30, or 60 days at a time
in jail and that the state was currently having difficulty
getting participants; furthermore, if the offense was a
misdemeanor, "it's just not going to happen."
Mr. Svobodny recalled the comments of a previous testifier
who had indicated that there was not enough incentive in
Bethel for people to go into the therapeutic courts and
related that if the felony drug offenses were changed into
misdemeanors, there would be substantially less incentive
for people to go into those courts. He noted that it was
important to remember that the therapeutic court
represented zero jail time and that what was offered was 24
months of probation and a set aside conviction as long as
the person stayed in the court; people who did not do this
may get a small amount of time in jail for the small-
quantity felony drug possession and probation afterwards.
He offered that one of the reasons that the offense had
been a felony in the past was because the offender was put
on felony probation and was getting help. He explained that
the state did not have probation officers for misdemeanors
and that the offenders would be on their own. He pointed
out that California had misdemeanor probation officers, and
surmised that Colorado likely had misdemeanor probation
officers as well. He stated that if the state wanted to
deal with the problem of spending too much money on
incarceration, there needed to be a mechanism that was not
currently in the bill that dealt with getting people into
treatment. He pointed out that the bill might be, in many
respects, a disincentive to treatment.
Co-Chair Meyer noted that the committee had questions for
Mr. Svobodny and wondered if he could summarize his
thoughts. Mr. Svobodny replied that he had one more subject
to quickly discuss.
10:39:42 AM
Mr. Svobodny shared that prosecutors had to prove cases by
the "elements of the crime" and that the bill added two
elements that would be required to be proved for the
possession of a small-quantity of certain drugs. He
explained that legislation added the elements of weight and
prior offenses. He noted that the Alaska Court System had
been claimed that the bill would result in a small
reduction in the amount of time for juries, but shared that
dealing with the prior offenses could be very difficult and
would result in bifurcated trials. He explained that there
would be two trials on the same offense because of concerns
regarding prejudice. He related a hypothetical scenario
that illustrated the potential difficulties of dealing with
prior offenses and offered that the bill would increase
litigation issues. He referenced a previous comment by
Vice-Chair Fairclough and stated that if the bill passed,
everyone who was already in jail for a MICS-4 would be
asking the court for a modification of sentence under
Criminal Rule 35; this represented unforeseen increases in
costs. He discussed additional potential litigation issues
involved with the bill. He related that DOL had an
indeterminate fiscal and surmised that that the bill would
result in cost savings for the DOC; however, it would
result in increased costs for DOL early on. He related that
typically, the current treatment was that a young, first-
time offender who was charged with a MICS-2 or a MICS-3 was
often plea bargained down to a MICS-4 because the
presumptive sentences were viewed as too high; he thought
that this would no longer happen under the bill.
Senator Dunleavy inquired if the current laws in the books
were working as intended. Mr. Svobodny replied in the
negative and related that the state was not currently
dealing with the addiction problems that people had.
Senator Dunleavy asked if harsher laws, easier triggers,
and longer sentences would eliminate the problem and
fulfill the original intent of the law. Mr. Svobodny
replied in the negative.
Senator Olson observed that Mr. Svobodny was not in favor
of the bill and inquired if that assumption was correct.
Mr. Svobodny replied that something had to be done about
the amount of people that were incarcerated in Alaska, but
opined that without a substantially greater revision of the
state's drug laws and a reallocation of resources from
other departments, the bill would not solve anything. He
concluded that the bill had potential hidden consequences
that needed to be considered.
Senator Bishop inquired if there was a potential loss of
federal funding to the state's police departments or
treatment facilities with the bill. Mr. Svobodny responded
that he had not thought about that aspect, but that U.S.
Attorney General was dealing with that kind of issue in the
State of Washington and the State of Colorado regarding the
decriminalizing marijuana because the U.S. had treaties
that dealt with drugs on certain levels. He offered that it
may affect federal funding, but that he had not looked into
that particular area.
10:46:40 AM
Co-Chair Meyer CLOSED public testimony.
SB 56 was HEARD and HELD in committee for further
consideration.
Co-Chair Meyer discussed the format of the joint House and
Senate Finance Committee meeting the following day, as well
as the committee's agenda for the rest of the week.
SB 22 was SCHEDULED but not HEARD.
10:47:56 AM
ADJOURNMENT
The meeting was adjourned at 10:48 a.m.